Today the Ninth Circuit issued an opinion in Al-Haramain Islamic Foundation v. Bush, returning the case to the District Court for further consideration. Al-Haramain had sued the government, alleging that they had a document proving the Islamic charity was subject to the NSA warrantless surveillance program. The government asserted the case should be dismissed based on the state secret privilege. The Ninth Circuit found that while the very subject matter of the case was not a state secret, the document (which had been inadvertently disclosed by the government) remains a state secret, and returned the case to the lower court to determine whether the Foreign Intelligence Surveillance Act preempted the common law state secrets privilege.
The Ninth Circuit also issued an order separating Al-Haramain from Hepting v. AT&T, EFF's case against the telecommunications company for its participation in the warrantless surveillance program. Previously, the cases had been consolidated, and both were argued at the same hearing on August 15, 2007. There was no indication on when the appeals court might rule in the Hepting case.