[Infowarrior] - Handling Of 'State Secrets' At Issue

[Richard Forno]

Handling Of 'State Secrets' At Issue
Like Predecessor, New Justice Dept. Claiming Privilege

http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032403501_pf.html

By Carrie Johnson
Washington Post Staff Writer
Wednesday, March 25, 2009; A01

Civil liberties advocates are accusing the Obama administration of  
forsaking campaign rhetoric and adopting the same expansive arguments  
that his predecessor used to cloak some of the most sensitive  
intelligence-gathering programs of the Bush White House.

The first signs have come just weeks into the new administration, in a  
case filed by an Oregon charity suspected of funding terrorism.  
President Obama's Justice Department not only sought to dismiss the  
lawsuit by arguing that it implicated "state secrets," but also  
escalated the standoff -- proposing that government lawyers might take  
classified documents from the court's custody to keep the charity's  
representatives from reviewing them.

The suit by the al-Haramain Islamic Foundation has proceeded further  
than any other in challenging the use of warrantless wiretaps,  
threatening to expose the inner workings of that program. It is the  
second time the new Justice Department has followed its predecessors  
in claiming the state-secrets privilege, which would allow the  
government to exclude evidence in a civil case on grounds that it  
jeopardizes national security.

Attorneys for al-Haramain are seeking monetary damages from officials  
at the White House, the National Security Agency, the Treasury  
Department and the FBI, saying that the government's alleged illegal  
eavesdropping of the charity's board members and attorneys five years  
ago violated the charity's rights of due process and freedom of  
speech. Representatives of the charity, whose U.S. operations have  
gone out of business, say that its purpose was philanthropic and that  
authorities have no evidence that it funded terrorism.

U.S. District Judge Vaughn R. Walker in San Francisco has resisted  
Justice Department attempts to claim the state-secrets privilege,  
making it one of the only cases to survive such a government  
challenge. Over the past eight years, authorities successfully invoked  
that argument dozens of times to prevent civil liberties groups from  
winning access to highly classified materials on a range of topics,  
including secret overseas prisons for terrorism suspects and  
warrantless wiretapping of U.S. citizens.

In his campaign plan to "change Washington," Obama criticized the Bush  
administration, saying that it had "ignored public disclosure rules"  
and that it too often invoked the state-secrets privilege, according  
to his Web site.

Now, Obama's claim of state secrets has prompted criticism.

"There has to be other ways to protect secret information without  
having to block accountability," said Erwin Chemerinsky, a law  
professor at the University of California at Irvine. He said that  
"state secrets" has become a sort of "talismanic phrase" uttered by  
government officials who want to dispose of inconvenient or troubling  
challenges to their authority.

Legal scholars say there are legitimate reasons for the state-secrets  
privilege, pointing out that it may be necessary to keep from  
disclosing government sources and methods of intelligence gathering.  
And Justice Department spokesman Matthew Miller countered the  
criticism, saying that "in just two months, the Justice Department has  
already moved on a number of fronts to ensure Americans have access to  
information about their government's actions, and with respect to  
state secrets, the attorney general has ordered a review of pending  
cases to ensure the privilege is only invoked when absolutely  
necessary."

In the al-Haramain case, Obama has not only maintained the Bush  
administration approach, but the dispute has intensified, with the  
Justice Department warning that if the judge does not change his mind,  
authorities could spirit away the top-secret documents.

"Any way you look at it, it's pretty remarkable," said Jon B.  
Eisenberg, an attorney for al-Haramain. "This is an executive branch  
threat to exercise control over a judicial branch function."

Walker's ruling, which could come at any time, is unlikely to end the  
disagreement and, if challenged, could bring the matter before the  
U.S. Supreme Court for the first time in a generation.

Last month, a bipartisan Senate group, including Judiciary Committee  
Chairman Patrick J. Leahy (D-Vt.) and ranking Republican Arlen Specter  
(Pa.), introduced legislation that would require judges to look at the  
classified evidence when the government makes the state-secrets claim,  
rather than rely only on its account of the sensitivity of the  
materials.

Leahy noted that the state-secrets privilege effectively bars people  
who have experienced serious privacy violations or even torture from  
seeking justice in court. He expressed particular alarm over the case  
of Khaled al-Masri, a German citizen who said he was kidnapped and  
held for months in a CIA-run prison where he was tortured. A federal  
judge dismissed Masri's suit after the CIA director said it would harm  
national security.

Said Leahy: "For the aggrieved parties, it means that the courthouse  
doors are closed -- forever -- regardless of the severity of their  
injury."

Six weeks ago, Attorney General Eric H. Holder Jr. disappointed civil  
libertarians by invoking the state-secrets claim in a case against a  
Boeing Co. subsidiary accused of transporting five terrorism suspects  
to countries where they were tortured.

Three Bush administration lawyers said they were not surprised that  
the new team had revived at least some of their arguments. Once in  
office, the lawyers said, White House officials -- regardless of  
political affiliation -- tend to support assertions of executive power  
to keep from tying their hands in future disputes.

"If you want to protect state secrets, you've got to have a pretty  
broad doctrine," said Stewart Baker, a former top lawyer at the  
Department of Homeland Security and the NSA.

The al-Haramain case began in early 2004 when the FBI quietly executed  
search warrants at the charity's headquarters in Ashland, Ore. The  
Treasury Department froze al-Haramain's assets the next day and  
ultimately concluded that the charity was a terrorist front.

Later, government officials mistakenly sent the charity's attorneys a  
classified phone surveillance log -- buried in a stack of documents --  
suggesting that al-Haramain board members and some of its attorneys  
had been wiretapped. Soon after the materials were sent, FBI agents  
raced to collect the sensitive pages.

In 2006, lawyers and charity officials sued the government, pointing  
to the secret pages as evidence that their phone and e-mail  
communication had been monitored without court warrants.

Walker, the San Francisco-based judge, found that anecdotal evidence  
of the eavesdropping program was sufficient and allowed the al- 
Haramain case to proceed.

In the waning days of the Bush administration, the judge ordered the  
government to grant security clearances to al-Haramain lawyers, which  
it did. But Obama's Justice Department lawyers and NSA officials  
continue to resist the orders to draft a plan for how the case could  
move forward.

In a Feb. 27 filing, Justice lawyers said the judge lacks authority  
"to order the government to grant counsel access to classified  
information when the executive branch has denied them such access."

Both sides await Walker's next step.

"At this point," said Eisenberg, the al-Haramain attorney, "I don't  
feel like I need to do anything. The outrage speaks for itself."