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Obama goes to bat for secrecy

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    Obama administration goes to bat for secrecy Bob Egelko - begelko@sfchronicle.com Thursday, February 12, 2009 http://www.sfgate.com/cgi-bin/article.cgi?
    Message 1 of 1 , Feb 13, 2009
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      Obama administration goes to bat for secrecy
      Bob Egelko - begelko@...
      Thursday, February 12, 2009
      http://www.sfgate.com/cgi-bin/article.cgi?
      f=/c/a/2009/02/12/BA8615T51C.DTL


      SAN FRANCISCO -- For the second time this week, the Obama
      administration has gone to court in San Francisco to argue for
      secrecy in defending a terrorism policy crafted under George W. Bush -
      in this case, wiretapping that President Obama denounced as a
      candidate.

      In papers filed Wednesday night, the new Justice Department asked a
      federal judge to suspend action on a suit challenging the wiretapping
      program, arguing that proceedings would jeopardize national security.
      Government lawyers also said the administration, not the courts,
      controls access to classified material at the heart of the case.

      In combative tones, the lawyers told Chief U.S. District Judge Vaughn
      Walker that they would ask a federal appeals court to put the case on
      hold unless he acts by 3 p.m. Friday.

      The dispute involves Walker's Jan. 5 order to allow plaintiffs who
      say the government illegally wiretapped their phones to read a
      classified surveillance document that could confirm the assertion and
      avoid dismissal of their suit. Lawyers for the Obama administration
      say the judge's decision "presents a clear-cut conflict between the
      court and the executive branch."

      "They have drawn a line in the sand between the executive and the
      judiciary, saying, 'You do not control these documents, we do,' "
      said Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which
      filed the suit.

      The government inadvertently sent the classified document to Al-
      Haramain in 2005. It reportedly showed that the now-defunct Islamic
      charity had been wiretapped before the government designated it a
      terrorist organization.

      Al-Haramain returned the document at the request of the government,
      which then argued in court that without the document, the group could
      not prove it had been wiretapped.

      Numerous groups brought similar cases after Bush acknowledged that he
      had ordered the National Security Agency in late 2001 to intercept
      phone calls and e-mails between U.S. Citizens and suspected foreign
      terrorists without congressional or court approval. But only Al-
      Haramain's case survives.

      Obama attacked the surveillance program as a presidential candidate,
      promising "no more illegal wiretapping of American citizens" in an
      August 2007 speech. His future attorney general, Eric Holder, said in
      June 2008 that Bush had defied federal law by authorizing the program.

      The new Justice Department filing, which elaborated on arguments by
      the same lawyers under the Bush administration, addressed only the
      need to freeze the lawsuit and keep information secret and did not
      discuss the legality of the surveillance program. But if the
      department's position is upheld, Al-Haramain's suit will be dismissed.

      Department spokesman Charles Miller confirmed that the brief
      represented the views of the new administration and its attorney
      general.

      On Monday, a Justice Department lawyer told the Ninth U.S. Circuit
      Court of Appeals in San Francisco that the Obama administration
      endorsed a Bush argument that a suit over the CIA's rendition program
      endangers state secrets and should be dismissed. The five plaintiffs
      in that suit say a San Jose subsidiary of Jeppesen Dataplan, a flight-
      planning company, helped the CIA transport them to foreign nations
      for torture.

      In Al-Haramain's case, the appeals court ruled last year that the
      organization could not use any information it had seen in the
      classified document to prove it had been wiretapped. But Walker, an
      appointee of former President George H.W. Bush, said in his Jan. 5
      ruling that the Islamic organization had presented enough evidence
      from public statements to show that it had probably been a target of
      the surveillance program.

      The judge said he would examine the document in private, then make it
      available to Al-Haramain lawyers with security clearances so they
      could oppose dismissal of the suit.

      The Justice Department contends Walker was wrong on two counts: that
      the material can be safely disclosed, even in private, and that an
      alleged surveillance victim can sue without government
      acknowledgement that wiretapping occurred. The department asked
      Walker to put the case on hold while it asks the Ninth Circuit to
      consider those issues.

      Failing to do so could cause "grave harm to national security,"
      government lawyers wrote.

      Eisenberg, Al-Haramain's lawyer, said the filing was "disappointing
      to a great many people who have had much hope for change."


      E-mail Bob Egelko at begelko@....

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