Obama goes to bat for secrecy
- Obama administration goes to bat for secrecy
Bob Egelko - begelko@...
Thursday, February 12, 2009
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
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
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
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
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@....
WORLD VIEW NEWS SERVICE
To subscribe to this group, send an email to:
NEWS ARCHIVE IS OPEN TO PUBLIC VIEW
Need some good karma? Appreciate the service?
Please consider donating to WVNS today.
Email ummyakoub@... for instructions.
To leave this list, send an email to: