Al-Haramain Islamic v. Bush ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AL-HARAMAIN ISLAMIC FOUNDATION, 
INC., an Oregon Nonprofit
Corporation; WENDELL BELEW, a
No. 06-36083
U.S. Citizen and Attorney at Law;
ASIM GHAFOOR, a U.S. Citizen and D.C. Nos.
Attorney at Law,
Plaintiffs-Appellees,
 MDL-CV-06-1791-
VRW
CV-07-00109-VRW
v.
OPINION
GEORGE W. BUSH, President of the
United States, et al.,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Garr M. King, District Judge, Presiding
Argued and Submitted
August 15, 2007—San Francisco, California
Filed November 16, 2007
Before: Harry Pregerson, Michael Daly Hawkins, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
14955
14958 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
COUNSEL
Paul D. Clement, Solicitor General, Gregory G. Garre, Dep-
uty Solicitor General, Daryl Joseffer, Assistant to the Solicitor
General, Washington, D.C.; Peter D. Keisler, Assistant Attor-
ney General, and Douglas N. Letter, Thomas M. Bondy,
Anthony A. Yang, Appellate Staff, Civil Division, Washing-
ton, D.C., for the defendants-appellants.
Jon B. Eisenberg, William N. Hancock, Eisenberg and Han-
cock LLP, Oakland, California; Lisa R. Jaskol, Los Angeles,
California; Thomas H. Nelson, Zaha S. Hassan, Thomas H.
Nelson & Associates, Welches, Oregon; Steven Goldberg,
Portland, Oregon; J. Ashlee Albies, Law Offices of J. Ashlee
Albies, Portland, Oregon, for the plaintiffs-appellees.
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14959
OPINION
McKEOWN, Circuit Judge:
Following the terrorist attacks on September 11, 2001,
President George W. Bush authorized the National Security
Agency (“NSA”) to conduct a warrantless communications
surveillance program. The program intercepted international
communications into and out of the United States of persons
alleged to have ties to Al Qaeda and other terrorist networks.
Though its operating parameters remain murky, and certain
details may forever remain so, much of what is known about
the Terrorist Surveillance Program (“TSP”) was spoon-fed to
the public by the President and his administration.
After The New York Times first revealed the program’s
existence in late 2005, government officials moved at
lightning-speed to quell public concern and doled out a series
of detailed disclosures about the program. Only one day after
The New York Times’ story broke, President Bush informed
the country in a public radio address that he had authorized
the interception of international communications of individu-
als with known links to Al Qaeda and related terrorist organi-
zations. Two days after President Bush’s announcement, then-
Attorney General Alberto Gonzales disclosed that the pro-
gram targeted communications where the government had
concluded that one party to the communication was a member
of, or affiliated with, Al Qaeda. The Department of Justice
followed these and other official disclosures with a lengthy
white paper in which it both confirmed the existence of the
surveillance program and also offered legal justification of the
intercepts.
The government’s plethora of voluntary disclosures did not
go unnoticed. Al-Haramain Islamic Foundation, a designated
terrorist organization, and two of its attorneys (collectively,
“Al-Haramain”) brought suit against President Bush and other
executive branch agencies and officials. They claimed that
14960 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
they were subject to warrantless electronic surveillance in
2004 in violation of the Foreign Intelligence Surveillance Act,
50 U.S.C. §§ 1801 et seq. (“FISA”), various provisions of the
United States Constitution, and international law. The govern-
ment countered that the suit is foreclosed by the state secrets
privilege, an evidentiary privilege that protects national secur-
ity and military information in appropriate circumstances.
Essential to substantiating Al-Haramain’s allegations
against the government is a classified “Top Secret” document
(the “Sealed Document”) that the government inadvertently
gave to Al-Haramain in 2004 during a proceeding to freeze
the organization’s assets. Faced with the government’s
motions to dismiss and to bar Al-Haramain from access to the
Sealed Document, the district court concluded that the state
secrets privilege did not bar the lawsuit altogether. The court
held that the Sealed Document was protected by the state
secrets privilege and that its inadvertent disclosure did not
alter its privileged nature, but decided that Al-Haramain
would be permitted to file in camera affidavits attesting to the
contents of the document based on the memories of lawyers
who had received copies.
In light of extensive government disclosures about the TSP,1
the government is hard-pressed to sustain its claim that the
very subject matter of the litigation is a state secret. Unlike a
truly secret or “black box” program that remains in the shad-
ows of public knowledge, the government has moved affirma-
tively to engage in public discourse about the TSP. Since
President Bush’s initial confirmation of the program’s exis-
tence, there has been a cascade of acknowledgments and
1
Though the media has reported that President Bush also authorized the
warrantless surveillance of purely domestic communications, see, e.g.,
Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls,
USA TODAY, May 11, 2006, at A1, Al-Haramain’s claims concern only
surveillance allegedly conducted under the auspices of the publicly-
acknowledged TSP.
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14961
information coming from the government, as officials have
openly, albeit selectively, described the contours of this pro-
gram. Thus, we agree with the district court that the state
secrets privilege does not bar the very subject matter of this
action. After in camera review and consideration of the gov-
ernment’s documentation of its national security claim, we
also agree that the Sealed Document is protected by the state
secrets privilege. However, we reverse the court’s order
allowing Al-Haramain to reconstruct the essence of the docu-
ment through memory. Such an approach countenances a
back door around the privilege and would eviscerate the state
secret itself. Once properly invoked and judicially blessed, the
state secrets privilege is not a half-way proposition.
Nonetheless, our resolution of the state secrets issue as
applied to the Sealed Document does not conclude the litiga-
tion. Al-Haramain also claims that FISA preempts the com-
mon law state secrets privilege. We remand for determination
of this claim, a question the district court did not reach in its
denial of the government’s motion to dismiss.
BACKGROUND
I. FACTUAL BACKGROUND2
On December 16, 2005, the New York Times reported that
in the years following September 11, 2001, President Bush
secretly authorized the NSA to conduct electronic surveil-
lance on Americans and others without warrants. James Risen
& Eric Lichtblau, Bush Lets U.S. Spy on Callers Without
Courts, N.Y. TIMES, Dec. 16, 2005, at A1. The next day, Pres-
ident Bush confirmed in a radio address that he had autho-
2
Pursuant to special procedures established by the Department of Jus-
tice, Litigation Security Section, the members of the panel reviewed the
Sealed Document and the non-public classified versions of the pleadings
and declarations. Our recitation of facts derives only from publicly-filed
pleadings, including public versions of the declarations.
14962 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
rized “the interception of international communications of
people with known links to Al Qaeda and related terrorist
organizations.” George W. Bush, President’s Radio Address
(Dec. 17, 2005), http://www.whitehouse.gov/news/releases/
2005/12/20051217.html (last visited Nov. 8, 2007). The Presi-
dent acknowledged that he reauthorized the program more
than 30 times since September 11, 2001, but that the program
was suspended in January 2007. Id.Then-Attorney General Alberto Gonzales, and other admin-
istration officials, also disclosed in public statements that the
NSA, under the TSP, intercepted electronic information
where the government had grounds to believe that one party
to the communication was a member or agent of a terrorist
organization affiliated with Al Qaeda. See Press Briefing by
Attorney General Alberto Gonzales and General Michael V.
Hayden, Principal Deputy Director for National Intelligence
(Dec. 19, 2005), http://www.whitehouse.gov/news/releases/
2005/12/20051219-1.html (last visited Nov. 8, 2007). Attor-
ney General Gonzales emphasized that the government had
not engaged in “blanket surveillance,” but instead attempted
to hone in on individuals who had apparent links to Al Qaeda.
Id. The government stated that interception under the program
took place only if there were reasonable grounds to believe
that one party to the communication was a member or agent
of Al Qaeda or an affiliated terrorist organization. Id. The
government did not obtain warrants for this surveillance,
which took place outside the context of the Foreign Intelli-
gence Surveillance Court (“FISC”). In January 2007, Attor-
ney General Gonzales stated that this type of surveillance is
now subject to the judicial jurisdiction of the FISC. Letter
from Alberto Gonzales, Attorney General, to Patrick Leahy
and Arlen Specter, Senators (Jan. 17, 2007), available at
http://leahy.senate.gov/press/200701/1-17-07%20AG%20to
%20PJL%20Re%20FISA%20Court.pdf.
Al-Haramain is a Muslim charity which is active in more
than 50 countries. Its activities include building mosques and
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14963
maintaining various development and education programs.
The United Nations Security Council has identified Al-
Haramain as an entity belonging to or associated with Al
Qaeda. In February 2004, the Office of Foreign Assets Con-
trol of the Department of Treasury temporarily froze Al-
Haramain’s assets pending a proceeding to determine whether
to declare it a “Specially Designated Global Terrorist” due to
the organization’s alleged ties to Al Qaeda. Ultimately, Al-
Haramain and one of its directors, Soliman Al-Buthi, were
declared “Specially Designated Global Terrorists.”
In August 2004, during Al-Haramain’s civil designation
proceeding, the Department of the Treasury produced a num-
ber of unclassified materials that were given to Al-Haramain’s
counsel and two of its directors. Inadvertently included in
these materials was the Sealed Document, which was labeled
“TOP SECRET.” Al-Haramain’s counsel copied and dissemi-
nated the materials, including the Sealed Document, to Al-
Haramain’s directors and co-counsel, including Wendell
Belew and Asim Ghafoor. In August or September of 2004,
a reporter from The Washington Post reviewed these docu-
ments while researching an article. In late August, the FBI
was notified of the Sealed Document’s inadvertent disclosure.
In October of 2004, the FBI retrieved all copies of the Sealed
Document from Al-Haramain’s counsel, though it did not
seek out Al-Haramain’s directors to obtain their copies. The
Sealed Document is located in a Department of Justice
Secured Compartmentalized Information Facility.
Al-Haramain alleges that after The New York Times’ story
broke in December 2005, it realized that the Sealed Document
was proof that it had been subjected to warrantless surveil-
lance in March and April of 2004. Though the government
has acknowledged the existence of the TSP, it has not dis-
closed the identities of the specific persons or entities surveil-
led under the program, and disputes whether Al-Haramain’s
inferences are correct.
14964 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
II. PROCEEDINGS IN THE DISTRICT COURT
In February 2006, Al-Haramain filed a complaint in the
District of Oregon alleging violations of FISA, the First,
Fourth, and Sixth Amendments to the United States Constitu-
tion, the doctrine of separation of powers, and the Interna-
tional Covenant on Civil and Political Rights. Al-Haramain
sought damages and declaratory relief, alleging that the gov-
ernment engaged in electronic surveillance of Al-Haramain’s
private telephone, email, and other electronic communications
without probable cause, warrants, or other prior authorization.
Al-Haramain also provided a sealed copy of the Sealed Docu-
ment to the district court.
The government moved to dismiss the case, or in the alter-
native, for summary judgment, on the basis of the state secrets
privilege, asserting that the very subject matter of the action
was a state secret. In support of its motion, the government
submitted public and classified versions of declarations from
John Negroponte, then-Director of National Intelligence, and
Keith Alexander, then-Director of the NSA. Director
Negroponte asserted that continuation of the litigation would
result in the disclosure of information relating both to the
nature of the Al Qaeda threat and the TSP, which could cause
grave damage to national security.
The government also moved to bar Al-Haramain from any
access to the Sealed Document. John F. Hackett, Director of
the Information Management Office of the Office of the
Director of National Intelligence, asserted in a May 12, 2006,
declaration: “Based upon my review of the document filed
under seal with the Court, it is not possible to describe the
document in a meaningful manner without revealing classi-
fied information, including classified sources and methods of
intelligence.”
The district court denied the government’s motion to dis-
miss, finding that the existence of the TSP was not a secret,
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14965
and that “no harm to the national security would occur if
plaintiffs are able to prove the general point that they were
subject to surveillance as revealed in the Sealed Document,
without publicly disclosing any other information contained
in the Sealed Document.” Al-Haramain Islamic Foundation,
Inc. v. Bush, 451 F. Supp. 2d 1215, 1224 (D. Or. 2006).
According to the district court, there was “no reasonable
danger that the national security would be harmed if it is con-
firmed or denied that plaintiffs were subject to surveillance.”
Id. The district court granted the government’s motion to bar
Al-Haramain from access to the Sealed Document on the
basis that it was protected by the state secrets privilege. The
court stated that it would, however, permit Al-Haramain-
related witnesses to file in camera affidavits attesting from
memory to the contents of the document to support Al-
Haramain’s assertion of standing and its prima facie case. Id.
at 1229.
The district court sua sponte certified its order for interloc-
utory appeal. The case was then transferred to the Northern
District of California by the Multi-District Litigation panel to
Chief Judge Vaughn Walker. We granted interlocutory
review, and consolidated this appeal with Hepting v. AT&T
Corp., Nos. 06-17132, 06-17137.3
STANDARD OF REVIEW
Although we have not previously addressed directly the
standard of review for a claim of the state secrets privilege,
we have intimated that our review is de novo. See Kasza v.
Browner, 133 F.3d 1159 (9th Cir. 1998) (implying without
stating that de novo review governs state secrets determina-
3
Although this case and Hepting were argued on the same day, and both
relate to alleged government electronic surveillance, the claimed facts and
circumstances of each case are distinct. Thus, we are concurrently entering
an order stating that the cases are no longer consolidated for any purpose.
14966 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
tion). De novo review as to the legal application of the privi-
lege and clear error review as to factual findings make sense,
as the determination of privilege is essentially a legal matter
based on the underlying facts. We accord other privileges,
such as the attorney-client privilege, a similar status—clear
error as to factual determinations by the district court, but
de novo review as to the application of legal principles to
those facts. See United States v. Bauer, 132 F.3d 504, 507
(9th Cir. 1997). Other circuits are in accord regarding review
of the state secrets privilege. See El-Masri v. United States,
479 F.3d 296, 302 (4th Cir. 2007); Molerio v. FBI, 749 F.2d
815, 820 (D.C. Cir. 1984). Standing is also reviewed de novo.
Buono v. Norton, 371 F.3d 543, 546 (9th Cir. 2004).
ANALYSIS
I. THE STATE SECRETS PRIVILEGE
[1] The state secrets privilege is a common law evidentiary
privilege that permits the government to bar the disclosure of
information if “there is a reasonable danger” that disclosure
will “expose military matters which, in the interest of national
security, should not be divulged.” United States v. Reynolds,
345 U.S. 1, 10 (1953). The privilege is not to be lightly
invoked. Id. at 7.
Although Reynolds is widely viewed as the first explicit
recognition of the privilege by the Supreme Court, see
Amanda Frost, The State Secrets Privilege and Separation of
Powers, 75 FORDHAM L. REV. 1931, 1936 (2007), the Supreme
Court considered a form of the privilege—the non-
justiciability of certain state secrets cases—in Totten v. United
States, 92 U.S. 105 (1875). Totten arose out of a contract
between President Lincoln and a secret agent who was alleg-
edly dispatched to spy on enemy troops. As the Court
explained in a very short opinion, “[i]t may be stated as a gen-
eral principle, that public policy forbids the maintenance of
any suit in a court of justice, the trial of which would inevita-
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14967
bly lead to the disclosure of matters which the law itself
regards as confidential, and respecting which it will not allow
the confidence to be violated.” Id. at 107. The court then
barred suit regarding the contract, as “[t]he secrecy which
such contracts impose precludes any action for their enforce-
ment,” and noted that “the existence of a contract of that kind
is itself a fact not to be disclosed.” Id.As the Supreme Court noted in a later case involving an
alleged agreement for espionage services, “lawsuits premised
on alleged espionage agreements are altogether forbidden.”
Tenet v. Doe, 544 U.S. 1 (2005). This conclusion has evolved
into the principle that where the very subject matter of a law-
suit is a matter of state secret, the action must be dismissed
without reaching the question of evidence. Reynolds, 345 U.S.
at 11 n.26; see also Kasza, 133 F.3d at 1166; Sterling v.
Tenet, 416 F.3d 338, 345 (4th Cir. 2005) (Dismissal is proper
if “sensitive military secrets will be so central to the subject
matter of the litigation that any attempt to proceed will
threaten disclosure of the privileged matters.”) (internal cita-
tion omitted).
More than 75 years passed before the Supreme Court
directly addressed the state secrets privilege, observing that
“[j]udicial experience with the privilege which protects mili-
tary and state secrets has been limited in this country. English
experience has been more extensive, but still relatively slight
compared with other evidentiary privileges.” Reynolds, 345
U.S. at 7 (footnotes omitted). In Reynolds, the Court
addressed the privilege at length, analogizing to the policy
and legal parameters of other privileges, such as the privilege
against self-incrimination. See id. at 8-9.
These two cases—Totten and Reynolds—thus provide the
foundation for our analysis. Although there is only a single
state secrets evidentiary privilege, as a matter of analysis,
courts have approached the privilege as both a rule of non-
justiciability, akin to a political question, and as a privilege
14968 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
that may bar proof of a prima facie case. See ACLU v. Nat’l
Sec. Agency, 493 F.3d 644, 650 n.2 (6th Cir. 2007) (“The
State Secrets Doctrine has two applications: a rule of evidenti-
ary privilege and a rule of non-justiciability.”) (internal cita-
tions omitted); Kasza, 133 F.3d at 1166 (holding that if a
plaintiff cannot prove the prima facie elements of one’s claim
without resort to privileged information, the court may dis-
miss).
Mirroring these applications of the state secrets privilege,
on appeal the government argues that the state secrets privi-
lege mandates the dismissal of Al-Haramain’s claims for three
reasons: (1) the very subject matter of the litigation is a state
secret; (2) Al-Haramain cannot establish standing to bring
suit, absent the Sealed Document; and (3) Al-Haramain can-
not establish a prima facie case, and the government cannot
defend against Al-Haramain’s assertions, without resorting to
state secrets.4
II. THE SUBJECT MATTER OF THE LITIGATION IS NOT A
STATE SECRET
Based on the various public statements made by the Presi-
dent and members of his administration acknowledging the
existence of the TSP, and Al-Haramain’s purported knowl-
edge that its members’ communications had been intercepted,
the district court rejected the government’s contention that the
subject matter of the litigation is a state secret. See Al-
Haramain, 451 F. Supp. 2d at 1225. The court found that the
government had “lifted the veil of secrecy on the existence of
4
The district court declined to decide whether Al-Haramain’s claims
should be dismissed on the ground that Al-Haramain would be unable to
make a prima facie case, or that the government would be unable to assert
a defense, without treading upon state secrets. See Al-Haramain, 451 F.
Supp. 2d at 1226. It recognized that non-public details of the TSP might
eventually be implicated by Al-Haramain’s claims, but stated that it was
“not yet convinced that this information is relevant to the case and will
need to be revealed.” Id.AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14969
the [TSP] and plaintiffs only seek to establish whether inter-
ception of their communications . . . was unlawful.” Id.[2] We agree with the district court’s conclusion that the
very subject matter of the litigation—the government’s
alleged warrantless surveillance program under the TSP—is
not protected by the state secrets privilege. Two discrete sets
of unclassified facts support this determination. First, Presi-
dent Bush and others in the administration publicly acknowl-
edged that in the months following the September 11, 2001,
terrorist attacks, the President authorized a communications
surveillance program that intercepted the communications of
persons with suspected links to Al Qaeda and related terrorist
organizations. Second, in 2004, Al-Haramain was officially
declared by the government to be a “Specially Designated
Global Terrorist” due to its purported ties to Al Qaeda. The
subject matter of the litigation—the TSP and the govern-
ment’s warrantless surveillance of persons or entities who,
like Al-Haramain, were suspected by the NSA to have con-
nections to terrorists—is simply not a state secret. At this
early stage in the litigation, enough is known about the TSP,
and Al-Haramain’s classification as a “Specially Designated
Global Terrorist,” that the subject matter of Al-Haramain’s
lawsuit can be discussed, as it has been extensively in
publicly-filed pleadings, televised arguments in open court in
this appeal,5 and in the media and the blogosphere, without
disturbing the dark waters of privileged information.
Because cases in this area are scarce, no court has put a fine
point on how broadly or narrowly “subject matter” is defined
in the context of state secrets. Application of this principle
must be viewed in the face of the specific facts alleged and
5
Pursuant to a camera request filed before argument, we permitted C-
SPAN to record the proceeding for later broadcast. See 9TH CIR. GUIDELINES
FOR PHOTOGRAPHING, RECORDING, AND BROADCASTING IN THE COURTROOM
(1996). The proceeding was broadcast on C-SPAN on August 15, 2007,
and is available at www.c-span.org.
14970 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
the scope of the lawsuit. In this case, the analysis is not diffi-
cult because Al-Haramain challenges warrantless surveillance
authorized under the TSP. Significantly, until disclosure of
the program in 2005, the program and its details were a highly
prized government secret.
[3] The first disclosure may have come from The New York
Times, but President Bush quickly confirmed the existence of
the TSP just one day later, on December 17, 2005, in a radio
address to the nation. The President’s announcement that he
had authorized the NSA to intercept the international commu-
nications of individuals with known links to Al Qaeda cast the
first official glimmer of light on the TSP. Since then, govern-
ment officials have made voluntary disclosure after voluntary
disclosure about the TSP, selectively coloring in the contours
of the surveillance program and even hanging some of it in
broad daylight.
Two days after President Bush’s announcement, Attorney
General Gonzales disclosed that the TSP intercepted commu-
nications where one party was outside the United States, and
the government had “a reasonable basis to conclude that one
party to the communication is a member of al Qaeda, affili-
ated with al Qaeda, or a member of an organization affiliated
with al Qaeda, or working in support of al Qaeda.” Press
Briefing by Attorney General Alberto Gonzales and General
Michael V. Hayden, Principal Deputy Director for National
Intelligence (Dec. 19, 2005), http://www.whitehouse.gov/
news/releases/2005/12/20051219-1.html (last visited Nov. 8,
2007). Attorney General Gonzales confirmed that surveillance
occurred without FISA warrants (“FISA requires that we get
a court order, unless authorized by a statute, and we believe
that authorization has occurred.”), and that American citizens
could be surveilled only if they communicated with a sus-
pected or known terrorist (“To the extent that there is a mod-
erate and heavy communication involving an American
citizen, it would be a communication where the other end of
the call is outside the United States and where we believe
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14971
either the American citizen or the person outside the United
States is somehow affiliated with Al Qaeda.”). Id.In an address to the National Press Club on January 23,
2006, General Hayden volunteered further details about the
TSP:
[T]here are no communications more important to
the safety of this country than those affiliated with al
Qaeda with one end in the United States. The presi-
dent’s authorization allows us to track this kind of
call more comprehensively and more efficiently. The
trigger is quicker and a bit softer than it is for a FISA
warrant, but the intrusion into privacy is also limited:
only international calls and only those we have a rea-
sonable basis to believe involve al Qaeda or one of
its affiliates.
General Michael V. Hayden, Address to the National Press
Club (Jan. 23, 2006), http://www.dni.gov/speeches/
20060123_speech.htm (last visited Nov. 8, 2007). In the same
speech, he asserted that the TSP was “targeted and focused,”
and that at least one participant to the conversation was not
in the United States, revealing that “this is not about intercept-
ing conversations between people in the United States.” Id.He even volunteered details as to the TSP’s procedures for
inadvertently intercepting a purely domestic call:
And if there were ever an anomaly, and we discov-
ered that there had been an inadvertent intercept of
a domestic-to-domestic call, that intercept would be
destroyed and not reported. But the incident, what
we call inadvertent collection, would be recorded
and reported. But that’s a normal NSA procedure.
It’s been our procedure for the last quarter century.
And as always, as we always do when dealing with
U.S. person information, as I said earlier, U.S. iden-
14972 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
tities are expunged when they’re not essential to
understanding the intelligence value of any report.
Id.General Hayden’s statements provided to the American
public a wealth of information about the TSP. The public now
knows the following additional facts about the program,
beyond the general contours outlined by other officials: (1) at
least one participant for each surveilled call was located out-
side the United States; (2) the surveillance was conducted
without FISA warrants; (3) inadvertent calls involving purely
domestic callers were destroyed and not reported; (4) the
inadvertent collection was recorded and reported; and (5) U.S.
identities are expunged from NSA records of surveilled calls
if deemed non-essential to an understanding of the intelli-
gence value of a particular report. These facts alone, disclosed
by General Hayden in a public address, provide a fairly com-
plete picture of the scope of the TSP.
Just a month after the President’s announcement, on Janu-
ary 19, 2006, the United States Department of Justice joined
the succession of government disclosures in a 42-page white
paper in which it not only confirmed that President Bush had
authorized the interception of international communications
into and out of the United States, but also justified the inter-
cepts with a legal analysis. U.S. Department of Justice, Legal
Authorities Supporting the Activities of the National Security
Agency Described by the President (Jan. 19, 2006), http://
www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf (last
visited Nov. 8, 2007). That the Department of Justice even
thought it necessary to explain to the public “in an unclassi-
fied form, the legal basis for the NSA activities described by
the President,” see id. at 1, suggests that the government both
knew that details of the surveillance program were in the pub-
lic sphere and recognized that the program was already the
subject of significant public discussion and interest.
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14973
The white paper disclosed other, as yet, non-public infor-
mation about the TSP, such as the NSA’s “use of signals
intelligence to identify and pinpoint the enemy.” Id. at 17.
The “NSA activities are directed at the enemy, and not at
domestic activity that might incidentally aid the war effort,”
id. at 34, and were “designed to enable the Government to act
quickly and flexibly (and with secrecy) to find agents of al
Qaeda and its affiliates.” Id. at 39. The TSP, intended to
“ ‘connect the dots’ between potential terrorists,” was “care-
fully reviewed approximately every 45 days” by the Depart-
ment of Justice, and Congressional leaders were briefed more
than a dozen times on the agency’s activities. Id. at 5 (quoting
George W. Bush, President’s Press Conference (Dec. 19,
2005), http://www.whitehouse.gov/news/releases/2005/12/
20051219-2.html (last visited Nov. 8, 2007)).
[4] To be sure, there are details about the program that the
government has not yet disclosed, but because of the volun-
tary disclosures made by various officials since December
2005, the nature and purpose of the TSP, the “type” of per-
sons it targeted, and even some of its procedures are not state
secrets. In other words, the government’s many attempts to
assuage citizens’ fears that they have not been surveilled now
doom the government’s assertion that the very subject matter
of this litigation, the existence of a warrantless surveillance
program, is barred by the state secrets privilege.
In arguing that the sensitive subject matter of this litigation
mandates dismissal, the government points to Kasza, in which
we affirmed the dismissal of an action on the basis of the state
secrets privilege. 133 F.3d at 1170. Kasza provides scant
guidance to us in this case. Kasza involved former employees
at a classified Air Force facility who challenged under the
Resource Conservation and Recovery Act of 1986 (“RCRA”)
the government’s allegedly improper treatment of hazardous
materials. The Secretary of the Air Force invoked the state
secrets privilege with respect to ten categories of national
14974 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
security information associated with the operating location,
including “security sensitive environmental data.” Id. at 1163.
We dismissed the action on the basis that its very subject
matter was a state secret, but we were, perhaps purposefully,
vague as to the specific reasons. The opinion simply stated
that the disclosure of information sought in discovery requests
“would reasonably endanger national security interests,” and
that “any further proceeding in this matter would jeopardize
national security.” 133 F.3d at 1170. Absent some insight into
our reasoning, Kasza does not inform our determination here,
except to confirm that some cases are, indeed, non-justiciable
as a consequence of the very subject matter of the action
being a state secret.
Nor are we persuaded by the recent case of El-Masri.
Khaled El-Masri, a German citizen of Lebanese descent,
brought claims stemming from injuries allegedly received
during his detention under the Central Intelligence Agency’s
(“CIA”) “extraordinary rendition” program. El-Masri, 479
F.3d at 300. The government defended the suit on the basis
of the state secrets privilege, but El-Masri argued that the
state secrets privilege did not require dismissal of his claims
because the CIA’s program had been widely discussed in the
press and in public fora, and acknowledged by administration
officials. See id. at 301. El-Masri maintained that the subject
of his suit was only his particular rendition, not the renditions
of other victims, and that the litigation posed no harm to
national security because sufficient information had entered
the public sphere to enable him to pursue his claims without
compromising state secrets. See id. at 308.
The Fourth Circuit upheld the government’s assertion of
the state secrets privilege and dismissed the action. To estab-
lish liability, El-Masri would be required to produce “evi-
dence that exposes how the CIA organizes, staffs, and
supervises its most sensitive intelligence operations.” Id. at
309. For example, to establish then-Director of the CIA
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14975
George Tenet’s liability, El-Masri would be “obliged to show
in detail how the head of the CIA participates in such opera-
tions, and how information concerning their progress is
relayed to him.” Id. Dismissal was proper because the infor-
mation that was known to the public about the renditions pro-
gram did not include “facts that are central to litigating [El-
Masri’s] action.” Id. at 311.
The court in El-Masri stated that “for purposes of the state
secrets analysis, the ‘central facts’ and ‘very subject matter’
of an action are those facts that are essential to prosecuting
the action or defending against it.” Id. at 308. According to
the Fourth Circuit, the subject matter of a lawsuit requires its
dismissal if the action cannot be “litigated without threatening
the disclosure of [ ] state secrets.” Id. (emphasis in original).
In other words, that court merged the concept of “subject mat-
ter” with the notion of proof of a prima facie case. Indeed, in
that case, the facts may have counseled for such an approach.
In contrast, we do not necessarily view the “subject matter”
of a lawsuit as one and the same with the facts necessary to
litigate the case. In Kasza, we made the distinction between
dismissal on the grounds that the subject matter of an action
is a state secret, and dismissal on the grounds that a plaintiff
cannot prove the prima facie elements of the claim absent
privileged evidence. See 133 F.3d at 1166. The parties,
including the government, also made this distinction in their
briefs, as did the district court in its decision. See Al-
Haramain, 451 F. Supp. 2d at 1226. Because the Fourth Cir-
cuit has accorded an expansive meaning to the “subject mat-
ter” of an action, one that we have not adopted, El-Masri does
not support dismissal based on the subject matter of the suit.
To be sure, a bright line does not always separate the sub-
ject matter of the lawsuit from the information necessary to
establish a prima facie case. In some cases, there may be no
dividing line. In other cases, the suit itself may not be barred
because of its subject matter and yet ultimately, the state
14976 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
secrets privilege may nonetheless preclude the case from pro-
ceeding to the merits. In other circumstances, the decision on
the state secrets privilege may need to await preliminary dis-
covery. It is precisely because of this continuum of analysis
that the courts, the parties, and the commentators tend to treat
the “subject matter” issue as a separate threshold determina-
tion.
[5] Al-Haramain’s case does involve privileged informa-
tion, but that fact alone does not render the very subject mat-
ter of the action a state secret. Accordingly, we affirm the
district court’s denial of dismissal on that basis.
III. THE GOVERNMENT’S INVOCATION OF THE STATE SECRETS
PRIVILEGE
[6] Although the very subject matter of this lawsuit does
not result in automatic dismissal, we must still address the
government’s invocation of the state secrets privilege as to the
Sealed Document and its assertion that Al-Haramain cannot
establish either standing or a prima facie case without the use
of state secrets. Our analysis of the state secrets privilege
involves three steps. First, we must “ascertain that the proce-
dural requirements for invoking the state secrets privilege
have been satisfied.” El-Masri, 479 F.3d at 304; see also
Reynolds, 345 U.S. at 7-8. Second, we must make an indepen-
dent determination whether the information is privileged. El-
Masri, 479 F.3d at 304. In deciding whether the privilege
attaches, we may consider a party’s need for access to the
allegedly privileged information. See Reynolds, 345 U.S. at
11. Finally, “the ultimate question to be resolved is how the
matter should proceed in light of the successful privilege
claim.” El-Masri, 479 F.3d at 304.
With respect to the first step, Reynolds requires the govern-
ment to make a “formal claim of privilege, lodged by the head
of the department which has control over the matter, after
actual personal consideration by that officer.” 345 U.S. at 7-
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14977
8 (footnotes omitted). The parties do not dispute that the pro-
cedural requirements for invoking the state secrets privilege
have been met. The government formally lodged its claim of
privilege through classified and unclassified declarations filed
by then-Director of National Intelligence, John Negroponte,
as Head of the United States Intelligence Community,6 and
Lieutenant General Keith B. Alexander, Director, National
Security Agency.
Next, we must determine whether the circumstances before
us counsel that the state secrets privilege is applicable, with-
out forcing a disclosure of the very thing that the privilege is
designed to protect. Id. at 7-8. Two claims of privilege are at
issue, although they are intertwined and we refer generally to
both under the rubric of the Sealed Document: (1) whether
Al-Haramain was subject to surveillance and (2) the Sealed
Document. This case presents a most unusual posture because
Al-Haramain has seen the Sealed Document and believes that
its members were subject to surveillance. The district court
held, however, that “because the government has not offi-
cially confirmed or denied whether plaintiffs were subject to
surveillance, even if plaintiffs know they were, this informa-
tion remains secret. Furthermore, while plaintiffs know the
6
The United States Intelligence Community includes the Office of the
Director of National Intelligence; the Central Intelligence Agency; the
National Security Agency; the Defense Intelligence Agency; the National
Geospatial-Intelligence Agency; the National Reconnaissance Office;
other offices within the Department of Defense for the collection of spe-
cialized national intelligence through reconnaissance programs; the intelli-
gence elements of the military services, the Federal Bureau of
Investigation, the Department of Treasury, the Department of Energy,
Drug Enforcement Administration, and the Coast Guard; the Bureau of
Intelligence and Research of the Department of State; the elements of the
Department of Homeland Security concerned with the analysis of intelli-
gence information; and such other elements of any other department or
agency as may be designated by the President, or jointly designated by the
DNI and heads of the department or agency concerned, as an element of
the Intelligence Community. See 50 U.S.C. § 401a(4).
14978 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
contents of the [Sealed] Document, it too remains secret.” Al-
Haramain, 451 F. Supp. 2d at 1223.
The district court also concluded that the government did
not waive its privilege by inadvertent disclosure of the Sealed
Document. Id. at 1228. Because Al-Haramain unwittingly
knows the contents of the Sealed Document, its allegations
and pleadings are founded on information that it believes is
derived from the document without revealing the content of
the document. This convoluted sentence and explication
underscore the practical difficulty for us in writing about a
privileged document, while being cautious not to disclose any
national security information. Unlike the alleged spies in Tot-
ten and Tenet, who were knowing parties to a secret contract
with the government, Al-Haramain is privy to knowledge that
the government fully intended to maintain as a national secur-
ity secret. Unlike the contract for secret services in Totten,
which was “itself a fact not to be disclosed,” the fact of the
previously-secret surveillance program is “itself a fact [that
has been] disclosed.” 92 U.S. at 107.
Despite this wrinkle, we read Reynolds as requiring an in
camera review of the Sealed Document in these circum-
stances. “[T]he showing of necessity which is made will
determine how far the court should probe in satisfying itself
that the occasion for invoking the privilege is appropriate.”
Reynolds, 345 U.S. at 11. We reviewed the Sealed Document
in camera because of Al-Haramain’s admittedly substantial
need for the document to establish its case.
[7] Having reviewed it in camera, we conclude that the
Sealed Document is protected by the state secrets privilege,
along with the information as to whether the government sur-
veilled Al-Haramain. We take very seriously our obligation to
review the documents with a very careful, indeed a skeptical,
eye, and not to accept at face value the government’s claim
or justification of privilege. Simply saying “military secret,”
“national security” or “terrorist threat” or invoking an ethereal
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14979
fear that disclosure will threaten our nation is insufficient to
support the privilege. Sufficient detail must be—and has been
—provided for us to make a meaningful examination. The
process of in camera review ineluctably places the court in a
role that runs contrary to our fundamental principle of a trans-
parent judicial system. It also places on the court a special
burden to assure itself that an appropriate balance is struck
between protecting national security matters and preserving
an open court system. That said, we acknowledge the need to
defer to the Executive on matters of foreign policy and
national security and surely cannot legitimately find ourselves
second guessing the Executive in this arena.
For example, at some level, the question whether Al-
Haramain has been subject to NSA surveillance may seem,
without more, somewhat innocuous. The organization posits
that the very existence of the TSP, and Al-Haramain’s status
as a “Specially Designated Global Terrorist,” suggest that the
government is in fact intercepting Al-Haramain’s communica-
tions. But our judicial intuition about this proposition is no
substitute for documented risks and threats posed by the
potential disclosure of national security information. Thus, we
look to the government’s filings, along with publicly available
materials and relevant case law, to review the district court’s
privilege determination.
It is no secret that the Sealed Document has something to
do with intelligence activities. Beyond that, we go no further
in disclosure. The filings involving classified information,
including the Sealed Document, declarations and portions of
briefs, are referred to in the pleadings as In Camera or Ex
Parte documents. Each member of the panel has had unlim-
ited access to these documents.
[8] We have spent considerable time examining the govern-
ment’s declarations (both publicly filed and those filed under
seal). We are satisfied that the basis for the privilege is excep-
tionally well documented. Detailed statements underscore that
14980 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
disclosure of information concerning the Sealed Document
and the means, sources and methods of intelligence gathering
in the context of this case would undermine the government’s
intelligence capabilities and compromise national security.
Thus, we reach the same conclusion as the district court: the
government has sustained its burden as to the state secrets
privilege.
We must next resolve how the litigation should proceed in
light of the government’s successful privilege claim. See El-
Masri, 479 F.3d at 304. The privilege, once found to exist,
“cannot be compromised by any showing of need on the part
of the party seeking the information.” In re Sealed Case, 494
F.3d 139, 144 (D.C. Cir. 2007) (internal citation omitted). The
effect of the government’s successful invocation of privilege
“is simply that the evidence is unavailable, as though a wit-
ness had died, and the case will proceed accordingly, with no
consequences save those resulting from the loss of evidence.”
Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C. Cir. 1983) (inter-
nal citation omitted).
After correctly determining that the Sealed Document was
protected by the state secrets privilege, the district court then
erred in forging an unusual path forward in this litigation.
Though it granted the government’s motion to deny Al-
Haramain access to the Sealed Document based on the state
secrets privilege, the court permitted the Al-Haramain plain-
tiffs to file in camera affidavits attesting to the contents of the
document from their memories. Al-Haramain, 451 F. Supp.
2d at 1229.
[9] The district court’s approach—a commendable effort to
thread the needle—is contrary to established Supreme Court
precedent. If information is found to be a privileged state
secret, there are only two ways that litigation can proceed: (1)
if the plaintiffs can prove “the essential facts” of their claims
“without resort to material touching upon military secrets,”
Reynolds, 345 U.S. at 11, or (2) in accord with the procedure
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14981
outlined in FISA. By allowing in camera review of affidavits
attesting to individuals’ memories of the Sealed Document,
the district court sanctioned “material touching” upon privi-
leged information, contrary to Reynolds. See 345 U.S. at 11.
Although FISA permits district court judges to conduct an in
camera review of information relating to electronic surveil-
lance, there are detailed procedural safeguards that must be
satisfied before such review can be conducted. See, e.g., 50
U.S.C. § 1806(f). The district court did not address this issue
nor do we here.
[10] Moreover, the district court’s solution is flawed: if the
Sealed Document is privileged because it contains very sensi-
tive information regarding national security, permitting the
same information to be revealed through reconstructed memo-
ries circumvents the document’s absolute privilege. See Reyn-
olds, 345 U.S. at 10 (A court “should not jeopardize the
security which the privilege is meant to protect by insisting
upon an examination of the evidence, even by the judge alone,
in chambers.”). That approach also suffers from a worst of
both world’s deficiency: either the memory is wholly accu-
rate, in which case the approach is tantamount to release of
the document itself, or the memory is inaccurate, in which
case the court is not well-served and the disclosure may be
even more problematic from a security standpoint. The state
secrets privilege, because of its unique national security con-
siderations, does not lend itself to a compromise solution in
this case. The Sealed Document, its contents, and any individ-
uals’ memories of its contents, even well-reasoned specula-
tion as to its contents, are completely barred from further
disclosure in this litigation by the common law state secrets
privilege.
IV. ABSENT THE SEALED DOCUMENT, AL-HARAMAIN CANNOT
ESTABLISH STANDING
The requirements for standing are well known to us from
the Supreme Court’s decision in Lujan v. Defenders of Wild-
14982 AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH
life, 504 U.S. 555 (1992). Standing requires that (1) the plain-
tiff suffered an injury in fact, i.e., one that is sufficiently
“concrete and particularized” and “actual or imminent, not
conjectural or hypothetical,” (2) the injury is “fairly trace-
able” to the challenged conduct, and (3) the injury is “likely”
to be “redressed by a favorable decision.” Id. at 560-61 (inter-
nal quotations and alteration omitted).
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 mem-
bers were unlawfully surveilled, is protected by the state
secrets privilege. At oral argument, counsel for Al-Haramain
essentially conceded that Al-Haramain cannot establish stand-
ing 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, hypo-
thetical or otherwise. Thus, Al-Haramain has indicated that its
ability to establish injury in fact hinges entirely on a privi-
leged document. It is not sufficient for Al-Haramain to specu-
late that it might be subject to surveillance under the TSP
simply because it has been designated a “Specially Desig-
nated Global Terrorist.”
[11] “[E]ven the most compelling necessity cannot over-
come 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 dis-
missed, 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
AL-HARAMAIN ISLAMIC FOUNDATION v. BUSH 14983
surveillance, and the Attorney General files an affidavit stat-
ing 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 nec-
essary 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 dis-
close to the aggrieved person, using protective orders, por-
tions of the materials “where such disclosure is necessary to
make an accurate determination of the legality of the surveil-
lance.” Id. The statute, unlike the common law state secrets
privilege, provides a detailed regime to determine whether
surveillance “was lawfully authorized and conducted.” Id.[12] 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 Inte-
rior, 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.