The Ninth Circuit U.S. Court of Appeals heard arguments on Aug. 15 regarding the administration's claims that two lawsuits involving the National Security Agency's spying program cannot move forward because of the state secrets privilege. The administration argues that the cases involve secret matters essential to protecting national security.

The arguments were heard in the wake of two important developments involving the executive's use of the state secrets privilege. A U.S. appellate court, for the first time ever, overturned the dismissal of a case based on the state secrets privilege. Second, the American Bar Association (ABA) passed a resolution arguing for limitations on the use of the state secrets privilege.

Based on the judges' questions during the hearing, the three-member panel of the Ninth Circuit appeared deeply skeptical of the government's invocation of state secrets. The cases involve plaintiffs who allege they have evidence of the National Security Agency's (NSA) Terrorist Surveillance Program (TSP). But, the government claimed, "Litigating this action could result in exceptionally grave harm to the national security of the United States."

One of the cases involves an alleged secret room at AT&T in San Francisco, which plaintiffs claim was used to collect and send information to the NSA. The other case involves members of an Islamic charity in Portland, OR, who have evidence of a top secret call log showing that its conversations were monitored by the government. The phone log was accidentally released by the government and, subsequently, ordered to be destroyed. Both of these cases, the government argues, are top secret matters, and proving or disproving their existence would be severely detrimental to national security.

The judges appeared to reject the government's reasoning. "The bottom line here is the government declares something is a state secret, that's the end of it. No cases … The king can do no wrong," said Judge Harry Pregerson.

The state secrets privilege is a legal power possessed by the executive branch to protect sensitive national security information from disclosure in litigation. It dates to 1953, when it was first invoked to protect the disclosure of information regarding a U.S. Air Force flight in which three civilian passengers died. Declaring the flight, "a highly secret mission," the Air Force refused to disclose information, preventing the widows from suing for damages. Years later, as reported in the Watcher, it was revealed that the mission was not a sensitive matter.

The Ninth Circuit arguments were held the same week the ABA passed a resolution calling for legislation that would restrict the use of the state secrets privilege and require court oversight and approval. Absent judicial review, the ABA argued, "There is a risk that the government would effectively judge its own claim that information necessary to prove a plaintiff's case must be kept secret because disclosure would harm national defense or diplomatic relations of the United States."

The government's latest state secrets claims in NSA suits also come after the first ruling to ever overturn the dismissal of a state secrets case. The ruling, In Re: Sealed Case, was released on July 20 by the U.S. Court of Appeals for the District of Columbia. By a two to one margin, the court decided to reverse and remand a decision to dismiss a suit on the grounds of state secrets. The government argued that the case could not proceed because it necessitates the disclosure of national security information. The court held that the plaintiff "can establish a prima facie case without using the privileged information."

The D.C. Circuit's ruling is a very significant decision regarding the state secrets privilege and could provide support for the NSA spying suits. Moreover, it may provide an impetus for Congress to legislate and mandate limitations on the use of the state secrets privilege, since the administration has essentially argued that anything relating to national security is a state secret and, hence, no lawsuits involving privileged information may proceed.

As far as the Ninth Circuit's decision, no date has been set. However, some speculate that since the circuit is perceived as liberal, the decision, if against the government, will be appealed, as the government will want the U.S. Supreme Court to review the state secrets privilege.