Obama tries to stop wiretapping suit
- Court rejects Obama bid to stop wiretapping suit
By Delvin Barrett
Washington - The Obama administration has lost its argument that a
potential threat to national security should stop a lawsuit
challenging the government's warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the
Justice Department's request for an emergency stay in a case involving
a defunct Islamic charity.
Yet government lawyers signaled they would continue fighting to keep
the information secret, setting up a new showdown between the courts
and the White House over national security.
The Obama administration, like the Bush administration before it,
claimed national security would be compromised if a lawsuit brought by
the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was
allowed to proceed.
Now, civil libertarians hope the case will become the first chance for
a court to rule on whether the warrantless wiretapping program was
legal or not. It cited the so-called state secrets privilege as a
defense against the lawsuit.
"All we wanted was our day in court and it looks like we're finally
going to get our day in court," said Al-Haramain's lawyer, Steven
Goldberg. "This case is all about challenging an assertion of power by
the executive branch which is extraordinary."
A Justice Department spokesman declined to comment.
But hours after the appeals court made its decision, government
lawyers filed new papers insisting they still did not have to turn
over any sensitive information.
"The government respectfully requests that the court refrain from
further actions to provide plaintiffs with access to classified
information," said the filing, suggesting the Obama administration may
appeal the matter again to keep the information secret and block the
case from going forward.
The decision by the three-judge appeals panel is a setback for the new
Obama administration as it adopts some of the same positions on
national security and secrecy as the Bush administration.
Earlier this month, Attorney General Eric Holder ordered a review of
all state secrets claims that have been used to protect Bush
administration anti-terrorism programs from lawsuits.
Yet even as that review continues, the administration has invoked the
privilege in several different cases, including the Al-Haramain matter.
The case began when the Bush administration accidentally turned over
documents to Al-Haramain attorneys. Lawyers for the defunct charity
said the papers showed illegal wiretapping by the National Security
The documents were returned to the government, which quickly locked
them away, claiming they were state secrets that could threaten
national security if released.
Lawyers for Al-Haramain argued that they needed the documents to prove
The U.S. Treasury Department in 2004 designated the charity as an
organization that supports terrorism before the Saudi Arabian
government closed it. The Bush administration redesignated it in 2008,
citing attempts to keep it operating.
The 9th Circuit eventually agreed that the disputed documents were
protected as state secrets. But the court ruled that the Oregon
chapter of Al-Haramain could try to find another way to show it had
standing to sue the government over domestic wiretapping.
A number of organizations, including the American Civil Liberties
Union, tried to sue the government over warrantless wiretapping but
were denied standing because they could not show they were targeted.
Ann Brick, a lawyer for the ACLU of Northern California, said the
court has now crafted a way to review the issue in which "national
security isn't put at risk, but the rule of law can still be observed."
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