United States Ninth Circuit

In a suit brought by a designated terrorist organization and two of its attorneys against President Bush, other agencies, and officials, arising from the NSA's warrantless communications surveillance program, an order denying defendants' motion to dismiss and making additional rulings regarding a key "Sealed Document" is reversed in part and remanded for further proceedings where: 1) in light of the government's extensive disclosure's regarding the program, the state secrets privilege does not bar the subject matter of the action; 2) however, the sealed document inadvertently given to plaintiff is protected by the state secrets privilege; 3) an order allowing plaintiff to reconstruct the essence of the document through memory was improper as it would defeat the purpose of the privilege; and 4) plaintiff cannot establish that it has standing without the sealed document, and its claims must be dismissed unless on remand it is determined that FISA preempts the state secrets privilege.

Appellate Information

• Argued 08/15/2007
• Decided 11/16/2007
• Published 11/16/2007

Judges

• McKEOWN, Circuit Judge:, Before:  HARRY PREGERSON, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellees:
  
• Paul D. Clement, Solicitor General, Gregory G. Garre, Deputy Solicitor General, Daryl Joseffer, Assistant to the Solicitor General, Washington, DC;  Peter D. Keisler, Assistant Attorney General, and Douglas N. Letter, Thomas M. Bondy, Anthony A. Yang, Appellate Staff, Civil Division, Washington, DC, for the defendants-appellants., Jon B. Eisenberg, William N. Hancock, Eisenberg and Hancock LLP, Oakland, CA;  Lisa R. Jaskol, Los Angeles, CA;  Thomas H. Nelson, Zaha S. Hassan, Thomas H. Nelson & Associates, Welches, OR;  Steven Goldberg, Portland, OR;  J. Ashlee Albies, Law Offices of J. Ashlee Albies, Portland, OR, for the plaintiffs-appellees.