Court Rejects Challenge To Wiretap Program

The Bush administration's warrantless spy effort is protected by the 'state secrets' privilege, federal judges rule.

The LA Times reports:

In rejecting a key element of a legal challenge to the government's warrantless wiretapping program, federal appellate judges on Friday demonstrated once again the willingness of U.S. courts to give the Bush administration considerable latitude in handling the war on terror.

The U.S. 9th Circuit Court of Appeals in San Francisco, by a 3-0 vote, barred an Islamic charity from using a confidential government document to prove that it had been illegally spied upon, agreeing with the administration that disclosure would reveal "state secrets."

The lawsuit, filed by Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency's spying endeavor, the Terrorist Surveillance Program, launched after the Sept. 11, 2001, terrorist attacks. The U.N. Security Council has declared that Al-Haramain, which operates in more than 50 countries, belongs to or is associated with Al Qaeda.

The suit was one of 50 legal challenges brought across the country after the program's existence was revealed in the New York Times.

Other courts have shown similar deference to the Bush administration on the state secrets privilege, which permits the government to bar disclosure in court of information if "there is a reasonable danger" it would affect national security.

But the ruling in this case was particularly striking because it came from a panel of three liberal jurists, all appointed by Democratic presidents.

Moreover, the charity, unlike other plaintiffs, says it has evidence of surveillance -- a call log from the National Security Agency that the government inadvertently turned over in another proceeding.

In the ruling, Judge M. Margaret McKeown wrote that the judges accepted "the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena."

Erwin Chemerinsky, a liberal constitutional law professor at Duke University law school, said the court showed "how much deference even a liberal panel of judges is willing to give the executive branch in situations like this, and I find that very troubling."

Doug Kmiec, a conservative constitutional law professor at Pepperdine law school, said "the opinion is consistent with" a ruling by the federal appeals court in Cincinnati earlier this year striking down a challenge to the surveillance filed by the American Civil Liberties Union.

He said the dual rulings indicated that "federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such."

The court's ruling was not an absolute victory for the government. McKeown rejected the Justice Department's argument that "the very subject matter of the litigation is a state secret."

That finding could prove important in numerous other cases in which the government contends that even considering legal challenges to warrantless wiretapping would endanger national security.

In addition, the 9th Circuit panel sent the case back to a lower court to consider another issue: whether the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. McKeown said that issue "remains central to Al-Haramain's ability to proceed with this lawsuit."

Georgetown University constitutional law professor David Cole said he thought Friday's ruling showed partial victories for both sides.

Indeed, lawyers for the government and for the charity said they were happy with the outcome.

"The 9th Circuit upheld the government's position that release of this information would undermine the government's intelligence capabilities and compromise national security," the Justice Department said.

Oakland attorney Jon Eisenberg, who argued for Al-Haramain before the 9th Circuit, said: "The government wants this case dead and gone. It is not. We are alive and kicking."

Eisenberg expressed optimism that his client would prevail under the Foreign Intelligence Surveillance Act, a statute enacted in the aftermath of revelations of illegal spying on civil rights and antiwar activists in the 1960s and '70s.

"That provision would be meaningless if the government could evade any such lawsuit merely by evoking the state secrets privilege," Eisenberg said.

Court: Mexican Trucks Program To Proceed

The AP reports:

The Bush administration can go ahead with a pilot program to allow as many as 100 Mexican trucking companies to freely haul their cargo anywhere within the U.S. for the next year, a federal appeals court ruled Friday.

The 9th U.S. Circuit Court of Appeals denied a request made by the Teamsters union, the Sierra Club and the nonprofit Public Citizen to halt the program.

The appeals court ruled the groups have not satisfied the legal requirements to immediately stop what the government is calling a "demonstration project," but can continue to argue their case.

The trucking program is scheduled to begin Thursday.

In court papers filed this week, the Teamsters and Sierra Club argued there won't be enough oversight of the drivers coming into the U.S. from Mexico.

They also argued that public safety would be endangered in a hasty attempt by the government to comply with parts of the North American Free Trade Agreement.

The trade agreement requires that all roads in the United States, Mexico and Canada to be opened to carriers from all three countries.

Canadian trucking companies have full access to U.S. roads, but Mexican trucks can travel only about 20 miles inside the country at certain border crossings, such as ones in San Diego and El Paso, Texas.

The government contends that further delays in the project will strain the relationship between the U.S. and Mexico.

In court filings this week, government lawyers said that the program is an important interim step in fulfilling the United States' obligations under NAFTA. They said that Mexican trucking companies would have to meet the same regulations governing U.S. trucking companies, and that in some cases the requirements are stricter.

Representatives of the Teamsters did not immediately return calls late Friday from The Associated Press, and a Sierra Club spokeswoman declined to comment immediately.

The program is designed to study whether opening the U.S.-Mexico border to all trucks could be done safely.

Congress ordered the Department of Transportation this year to launch a pilot program to investigate the issue. As the start date neared, the Teamsters and the Sierra Club claimed the public wasn't given enough opportunity to comment on a program that, as proposed now, won't yield statistically valid results.

The government says it has imposed rigorous safety protocols in the program, including drug and alcohol testing for drivers done by U.S. companies. In addition, law enforcement officials have stepped up nationwide enforcement of a law that's been on the books since the 1970s requiring interstate truck and bus drivers to have a basic understanding of written and spoken English.

The Federal Motor Carrier Safety Administration, the Department of Transportation agency charged with managing the program, said Friday that the court's decision is "welcome news for U.S. truck drivers anxious to compete south of the border and U.S. consumers eager to realize the savings of more efficient shipments with one of our largest trading partners."

However, the agency said it must still wait for final report by the inspector general and for Mexico to begin giving U.S. trucking companies reciprocal access before the program can begin.

The Teamsters had complained that the government has provided not details of the reciprocal agreement.