Thanks. I appreciate your efforts to enlighten us.
Too much verbiage, so I've been criticized. Anyhow, I was curious about the Halkin case because the appellate court in Jabara uses Halkin to plant the (false) idea that if the government stonewalls the fact of NSA surveillance, the plaintiff has no case. Here is a piece of the Jabara appellate case (context in post above) ...
The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. ...I thought a rule where the government could absolutely shut off claims of civil rights violation by the simple device of saying "it's an NSA matter and therefore state secret," seemed harsh. Here is what the court said in Halkin ...[Note] 5 This was so held in Halkin, supra; indeed in Halkin, it was held that, pursuant to the state secret privilege, the government did not even have to divulge to plaintiffs whether the NSA had intercepted their overseas communications. Here, as previously indicated, the government has divulged in the open record that NSA did intercept and later turn over to the FBI Jabara's communications.
On a prior appeal, Halkin v. Helms (Halkin I ), 598 F.2d 1 (D.C.Cir.1978), [n 25] this court upheld a claim of the state secrets privilege by the Secretary of Defense and held that NSA was not required to disclose in discovery whether it had intercepted any of plaintiffs' communications. As a result of that ruling, plaintiffs' claims against the NSA and several individual officials connected with that agency's monitoring activities could not be proved, and the complaint as to those defendants was dismissed. Plaintiffs were left, however, with their claim that notwithstanding the practical bar to suit against NSA worked by the state secrets privilege, the CIA and the individuals responsible for submitting the watchlists to NSA could be held liable based on a presumption that the submission of a name resulted in interception of the named person's communications.Whoa! What the court is saying to the government is "you don't have to admit the NSA was involved, but if you take that approach, your adversary obtains a presumption that his communications were intercepted, and the case moves forward against the agency that requested interception of communication."n 25. A related case in this court, In re Halkin, 598 F.2d 176 (D.C.Cir.1979), was an action seeking a writ of mandamus to vacate a trial court order prohibiting out-of-court statements by the parties on information produced in the course of discovery.
Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982)
Yup. The appeals court in Jabara was definitely using intellectual hocus pocus.