Despite Ninth Circuit Decision, Lawyers Refuse to Release Document in Wiretapping Case
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A heated confrontation is brewing between the Obama administration and the federal judiciary.
Late on Friday, the Justice Department’s lawyers filed a brief with a federal district court in California challenging the court’s power to carry out its own order. The government lawyers insisted that the court has no right to make available to the opposing lawyers in the case a classified document regarding the Bush administration’s warrantless wiretapping program, even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret security clearances, and the document would not be released publicly.
As TWI reported on Friday, the case of Al-Haramain v. Obama presents one of the first direct challenges by a victim of the Bush National Security Agency’s warrantless wiretapping program against government officials. But the government has argued vigorously to have the case dismissed, invoking the so-called “state secrets privilege” to refuse to turn over information about the program, and has refused to provide the organization’s lawyers use of a document that reportedly reveals that Al Haramain was one of the program’s victims. Although U.S. District Judge Vaughn Walker has repeatedly rejected the Justice Department’s argument, DOJ lawyers filed an emergency appeal; on Friday afternoon, the Ninth Circuit Court of Appeals rejected it.
So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”
Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court.
Realizing this, the Justice Department lawyers on Friday wrote: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”
In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.
“It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge Walker’s chambers to seize the classified material from his files!” wrote Jon Eisenberg, Al-Haramain’s lawyer, in an e-mail on Saturday. “In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.”
The stand-off centers on who has the power to decide whether classified information must be made available to someone outside of the government. The Justice Department insists that only the director of the relevant executive agency has that power; and in this case, the Director of the National Security Agency has decided that Al-Haramain and its lawyers should not be allowed to see the classified document, because they don’t have a “need to know” the information it contains.
In fact, it’s clear that in order for Al-Haramain to pursue its case against the government, its lawyers need at the very least the sealed document that indicates they were wiretapped. Indeed, it’s the only known evidence that indicates that the Islamic charity was wiretapped without a warrant; without it, the organization and its lawyers don’t have standing to sue the government.
That’s not a concern of the Justice Department, however, which insisted on Friday: “the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access.”
The Obama administration “seems to be provoking a separation-of-powers confrontation with Judge Walker,” said Eisenberg.
The government’s latest move is just another in an increasingly aggressive set of tactics it’s been using to defend broad executive power to conceal evidence of illegal activity by the Bush administration. In both this case and another case I wrote about earlier, Mohamed v. Jeppesen Dataplan, the Obama administration has invoked the “state secrets” privilege to argue that the subject matter of the lawsuits are themselves state secrets, and therefore that the cases must be dismissed.
Civil liberties advocates had hoped that the Obama administration would be more open about the workings of government – and particularly about the illegal activity that occurred in the name of fighting terrorism under the Bush administration. But they’ve been sorely disappointed. In national security cases, the Obama administration has aggressively used the “state secrets privilege” to insist that it can withhold classified evidence even if that’s contrary to Congressional law.
“In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States,” Marc Rotenberg, Executive Director of the Electronic Privacy Information Center and an adjunct professor of law at Georgetown University said last week. “We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter,” Rotenberg said. The significance of the Al Haramain case is “the apparent willingness of the Obama administration’’s justice department to carry further that same argument in federal court. It is of great concern.”
Another interesting piece of the government’s filing on Friday – actually, [URL=http://washingtonindependent.com/wp-content/uploads/2009/03/fisa-doj-declassrpt.pdf]its second filing[URL], at 1:00 AM Eastern time – is that the government, which was supposed to report to the judge about which documents it will declassify, says that it won’t declassify anything. While that’s not a big surprise, the declassification report also says that its previous classified submission to the court contained an error – though it can’t say what that error was, because it’s classified. And, to support all this, the government filed four secret declarations by government officials — which no one but the judge is allowed to see.
“We’ve always suspected that the previous secret filings contained inaccuracies and maybe even outright lies, which is why we have been fighting so hard to see them,” said Eisenberg. “Now it seems we might have been right. Maybe, now that Judge Walker may be about to let us see them, the Government is worried that we’ll spot the lie, so they’re trying to ‘take it back.’ This is extremely weird.”
Contacted over the weekend, the Department of Justice declined to comment, saying the court filings speak for themselves. But David Golove, a professor at New York University School of Law and expert on executive power who’s not involved in the case (and had not seen the latest court filings), said the Obama administration’s latest brief may reflect simply the executive’s usual reluctance to turn over classified information until it absolutely has to. If the government keeps appealing every action by the district court, he speculated, the Ninth Circuit Court of Appeals may finally give in and rule on whether the government has to comply with FISA, or whether it can continue to conceal evidence by invoking the state secrets privilege. Although Judge Walker ruled in al-Haramain’s favor, no court of appeals has ever addressed the issue.
“When a court of appeals tells them they have to hand over the information, will they comply, or will they go to endless ends to prevent it from happening? I don’t think we’ve reached that yet,” said Golove. “It might be fair to view this as just a consquence of fact that they find themselves in the funny position of having to reveal classified information to people they don’t want to before getting a higher court ruling on it,” he added. Then again, he added: “That’s at least one interpretation. We have good reason to be suspicious.”
By Daphne Eviatar
3/2/09 12:37 AM
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