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Wednesday, July 02, 2008

District Court: FISA Preempts the State Secrets Privilege for Wirtetapping Suits

Late this afternoon, the U.S. District Court for the Northern District of California released this fascinating decision in the Al-Haramain litigation (a challenge to the warrantless wiretapping program), on remand from the Ninth Circuit (the Ninth Circuit's decision is available here).

Specifically, the district court held that the cause-of-action provisions of the Foreign Intelligence Surveillance Act displace the state secrets privilege in cases alleging violations of FISA, but that the plaintiffs can only benefit from the FISA remedy if they can demonstrate that they are an "aggrieved person" within the meaning of the statute.

The first part of the holding strikes me as potentially very significant, as it calls into question the applicability of the state secrets privilege in any lawsuit claiming a violation of FISA.  It's also an argument that Heidi Kitrosser (Minnesota) and I fleshed out in this amicus brief to the Ninth Circuit in what was then a companion case last spring...

But the second part leaves things back where they started. Until and unless one can prove that they were the subject of an unlawful wiretap, the real hurdle in these cases continues to be standing...

Posted by Steve Vladeck on July 2, 2008 at 10:03 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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