Waiting On The World To Change
By Horace Cooper
July 18, 2007
The 9th Circuit Court of Appeals is proving itself once again to be a powerhouse among the circuits. And based on some of the cases that it will decide this year it might actually edge out the D.C. Circuit as the most influential circuit court in the nation.
With its headquarters in San Francisco, the 9th Circuit is the largest of the 13 courts of appeals, and this term there's a lot happening. Three of the cases awaiting final disposition by the 9th Circuit are quite noteworthy. And depending on the outcome, they could literally change the world.
First, is Al-Haramain Islamic Foundation v. Bush, a case in which an Oregon-based Saudi Arabian charity investigated for alleged terrorist ties claims that it was the target of illegal National Security Agency surveillance. This case has captured much attention because the plaintiffs claim their evidence includes a top-secret government document accidentally released by the Treasury Department. It reportedly shows surveillance of attorney-client conversations. This would bolster their claim to have standing to continue the case.
Although this may be among the strongest cases presented against the Bush administration's terrorist surveillance program, the prospects for success aren't good. First, the Al-Haramain Islamic Foundation was found by both the United States and the United Nations to have significant financial ties to the Bosnia-based nongovernment organization Al Furqan,and al-Qaida financier Wa'el Hamza Julaidan - meaning that the organization has terrorist ties.
Additionally, the eavesdropping program created by the Bush administration was revamped after Democrats gained control of Congress. Its operations were placed under the Foreign Intelligence Surveillance Court, thereby making many of the claims against its earlier operation legally moot.
Moreover, the plaintiffs would likely need to show that any surveillance that occurred would not have been approved if it was submitted to the Foreign Intelligence Surveillance Court. This is a more significant challenge in light of the finding by the U.N. and the Department of Treasury that the charity had associations with terrorist organizations. The plaintiffs would need to show that before the program was modified, the 4th Amendment's standard for a governmental search was not met - with or without getting a warrant -- by the program. Add to this the particularly troublesome difficulty of making such a determination when the surveillance involves sophisticated electronic communications, and it seems unlikely that the plaintiff's case will succeed.
In the second case, Hepting v. AT&T, customers of AT&T claim that their phone calls and e-mails were unlawfully intercepted by AT&T and forwarded to the NSA. The plaintiffs in this case have several obstacles they will have to overcome. First is a finding as to whether the suit itself will reveal "state secrets" - an executive privilege most recently upheld by the Supreme Court in Tenet v. Doe (2005). In that case, the court reaffirmed that the government cannot be forced to disclose whether it has entered into espionage agreements with any parties.
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