A sensitive civil liberties case that has been working its way through the courts for nearly four years is in the news again as the Obama administration "fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants." The case involves the now-defunct, Oregon-based Saudi charity, the Al-Haramain Islamic Foundation.
According to David Kravets at Wired:
With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.
Thursday's filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration's warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.
"The Government's position remains that this case should be stayed," the Obama administration wrote in a filing that for the first time made clear the new president was on board with the Bush administration's reasoning in this case.
The case deeply embarrassed the Bush administration when the Department of Justice inadvertently faxed a classified document to attorneys for Al Haramain, which the government had named a "Specially Designated Terrorist Group." The fax, attorneys claim, appeared to include a highly classified log of conversations obtained by wiretaps that had not been obtained in compliance with provisions of the Foreign Intelligence Surveillance Act as it stood when the wiretaps took place.
As soon as the government learned of the mistake, it grabbed the top secret fax back, claiming that its use in court would violate state secrets privilege. Thus the document was effectively stricken from the record, and a federal district court in San Francisco ruled that it could not be used by Al Haramain’s attorneys to challenge the legality of any wiretapping.
But, while U.S. District Judge Vaughn Walker agreed last summer that the government could invoke the state secrets privilege, he also told the Al Haramain's attorneys that they could seek unclassified information from other sources to bolster their case on the use of illegal wiretaps against their clients. This they did, and in early January, based on their efforts, Judge Walker reinstated their lawsuit against the government. And he ordered the government to turn over the secret document so he could review it. He also told the government to begin the process of obtaining security clearances to give the plaintiffs' attorneys limited access to secret information so they can participate in the case.
[He reasoned] that the state secrets privilege was preempted by explicit provisions within FISA allowing "aggrieved persons" to have their cases reviewed in judges' chambers. The point of providing for in camera review, after all, was to permit the court to consider documents that would otherwise be state secrets ...
The Justice Deparment isn't happy with that, and they're asking Walker to suspend his orders pending an appeal of that ruling. Noting that "secrecy is a one-way street," the government's motion argues that there will be no effective remedy on appeal once privileged information has been disclosed. Moreover, it argues that even if the "sealed document" at the heart of the case is only reviewed in chambers, any further action in the case would be tantamount to disclosure, because the appellate court recognized the government's privilege "not merely as to the 'content' of the sealed document but over the fact of whether or not plaintiffs had been subject to the alleged surveillance." That fact, of course, would be implicitly revealed by Walker's determination of whether the suit should proceed after reviewing the document.
The whole case has an air of the bizarre. Everybody knows Al Haramain was spied upon illegally. It’s been reported in the Los Angeles Times, Washington Post, The New York Times, Salon and other publications. Moreover, while the government got its fax back from the attorneys, it also faxed the alleged wiretap log to Al Haramain’s directors living overseas. There's no record that it obtained those faxes back.
But the Justice Department under Bush, and now under Obama, argues in its motion:
"No court has held that an assertion of the state secrets privilege is preempted by statutory law — an issue that is plainly of constitutional dimension because the judgment made by Executive branch officials responsible for national security matters to protect certain information is rooted in the Article II powers of the President."
As Jon B. Eisenberg, one of the plaintiff’s attorneys and an adjunct professor at University of California Hastings Law School wrote last July in Salon:
The reality is that the Al-Haramain case doesn't threaten national security; it threatens only the "unitary executive" theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly -- without a court ruling on whether the president of the United States has broken the law.
Given that it has adopted the Bush administration's position in this case, the question now to be answered is what role "unitary executive" philosophy will play in the Obama administration.
