FISA civil claim remanded for determination of whether there is an FISA exemption to state secrets exception

Ninth Circuit holds that the state secrets privilege may bar a civil action over alleged unlawful surveillance of an alleged terrorist group under the now public Terrorist Surveillance Program. At issue was a “Sealed Document” that the government claimed protected by the state secrets privilege which the plaintiffs had seen. The court held that the plaintiffs could not testify about the document because the state secrets privilege absolutely protected the Sealed Document. The District Court declined to reach the “difficult question” of whether there was an FISA exception that would permit plaintiffs’ claim to proceed. Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). The case was remanded for the District Court to make that determination. Al-Haramain Islamic Foundation, Inc. v. Bush, No. 06-36083 (9th Cir. November 16, 2007):

Al-Haramain cannot establish that it suffered injury in fact, a “concrete and particularized” injury, because the Sealed Document, which Al-Haramain alleges proves that its members were unlawfully surveilled, is protected by the state secrets privilege. At oral argument, counsel for Al-Haramain essentially conceded that Al-Haramain cannot establish standing without reference to the Sealed Document. When asked if there is data or information beyond the Sealed Document that would support standing, counsel offered up no options, hypothetical or otherwise. Thus, Al-Haramain has indicated that its ability to establish injury in fact hinges entirely on a privileged document. It is not sufficient for Al-Haramain to speculate that it might be subject to surveillance under the TSP simply because it has been designated a “Specially Designated Global Terrorist.”

“[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11. Because we affirm the district court’s conclusion that the Sealed Document, along with data concerning surveillance, are privileged, and conclude that no testimony attesting to individuals’ memories of the document may be admitted to establish the contents of the document, Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.

V. FISA AND PREEMPTION OF THE STATE SECRETS PRIVILEGE

Under FISA, 50 U.S.C. §§ 1801 et seq., if an “aggrieved person” requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials “as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials “where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance “was lawfully authorized and conducted.” Id.

As an alternative argument, Al-Haramain posits that FISA preempts the state secrets privilege. The district court chose not to rule on this issue. See Al-Haramain, 451 F. Supp. 2d at 1231 (“I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege.”). Now, however, the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit. Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (stating that the court of appeals should not ordinarily consider issue not passed on below); Barsten v. Dep’t of Interior, 896 F.2d 422, 424 (9th Cir. 1990) (observing that the wisest course is to allow district court to consider issue first).

REVERSED and REMANDED.