The judges - McKeown in particular - focused more in the Al Haramain arguments on the accidental nature of the government disclosure, and the undeniable fact that were it not for that inadvertent disclosure, the plaintiffs would never have known about the existence of direct surveillance against them, rather than some ill-defined general surveillance program.
Of course, the existence of a massive, 1984-style totalitarian surveillance program is considerably spookier than isolated incidents of government misconduct, but for the purposes of establishing standing, a plaintiff needs to assert individualized harm. Such inadvertent disclosure is not considered a waiver of the privilege, since once the government found out about it, it quickly sought the return of the documents.
A legal privilege is not an absolute bar to disclosure. Privileges may be considered waived if not asserted, and privileged information may still be discoverable by an opposing party if it would be impossible to obtain the information in any other way.
Document... er..what document?
This is why the government had to assert that allowing the plaintiffs to testify about their recollections of the documents would be the equivalent of allowing the document itself into testimony, to create an absolute shield around the very existence of the program the document reveals. Never mind that the President has acknowledged its existence to the press. Even if the plaintiffs can establish for purposes of standing that they were surveilled, the argument goes, they have no way of knowing whether or not it was approved by the FISA court and therefore legal.
The judges pressed Bondy about why a redacted version would not suffice for determining such a preliminary issue as standing - even one reduced to articles and pronouns, for example? Nope - once again, the existence of the program itself could not be revealed, whether it was already in the public domain or not. Sure you remember The Document, but the public record will never be allowed to acknowledge that, even to establish your own innocence from some half-baked terrorism charge.
And those are your stateside constitutional protections. If you're rotting in Gitmo or some CIA black site, good luck, pal.
Whichever way the relatively liberal Ninth Circuit goes on this case, both sides have already pledged to take the case to the Supreme Court. Although Jon Eisenberg, the attorney for Al Haramain, had a tougher time before the court than the attorney for the EFF, the cases had been consolidated and there was no real reason for the judges to revisit earlier arguments. For that same reason, Bondy largely escaped the derision occasionally piled by the judges on the Deputy Solicitor General, Gregory Garre, in the EFF arguments.
Ultimately, the direct evidence of surveillance in the Al Haramain case provides the strongest argument yet to establish standing against the the assertion of the state secrets privilege - more so than the circumstantial evidence of generalized surveillance postulated in EFF. If first-hand knowledge - or, more accurately still, an admission of an adverse party - is insufficient to establish individual standing, whatever will be?
It is, as Eisenberg has said, the last case standing. ®
Burke Hansen, attorney at large, heads a San Francisco law office