I had the chance to watch the oral arugment before the U.S. Court of Appeals for the Ninth Circuit in one of the FISA/state secrets cases over the weekend (the Al-Haramain Islamic Foundation case, available on C-Span here). My reaction to the oral argument (not having read the briefs) is that the Justice Department’s claim that the state secrets doctrine precludes further proceedings before the district court was particularly weak.
While the government would like to argue that allowing the case to proceed would threaten national security, I thought that the opposing attorney effectively rebutted the claim, pointing out that the alleged rationales for the doctrine do not apply in this case. For instance, one argument for the doctrine is that the disclosure of foreign intelligence activities is that the potential subjects of surveillance will alter their behavior, thereby undermining foreign intelligence efforts. In this case, however, the plaintiffs already believe that they were surveiled, because the government accidentally gave them a confidential document, and this is now public information. So, the subjects of the surveillance have already altered their behavior — the damage has been done. Therefore, it seems to me, that even if one believes in a fairly robust state secrets doctrine, it does not seem to apply here.
I am not an expert on the state secrets doctrine, by any means, and there may well be more to the government’s arguments in this case. That said, from what I saw in the oral argument, it seems that the government should lose, and the case should continue in the district court. Am I mistaken?