9th Circuit Supports Bush Administration On State Secrets Objection

The most liberal appellate court in the federal judiciary handed the Bush administration a big victory regarding its terrorist-surveillance program (TSP) at the NSA. A three-judge panel ruled unanimously that the administration correctly asserted its ability to protect state secrets in pursuing leads on terrorists. As the judges noted:

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 surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, 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 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 transparent 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.

Patterico has more on this development, including the opening they left themselves on a future ruling. It comes as Congress mulls its options on telecom immunity. That debate may be moot. (via Instapundit and John Stephenson)