Oregon State Secrets Case Is Bush Leftover for Obama
William MCall, The Associated Press
Portland, Oregon - For the second time since Attorney General Eric Holder ordered a review of Bush administration state secrets claims, the Obama administration finds itself defending the doctrine used to protect anti-terrorism programs accused of illegal spying.
Pete Seda, the director of the Saudi Arabian charity Al-Haramain Islamic Foundation, talks about peace at a panel discussion in Ashland, Oregon, September 11, 2002. The charity was shut down after the US Treasury Department categorized it as a terrorist organization with links to al-Qaeda. (Photo: Myles Murphy / AP)
The Justice Department has asked the 9th U.S. Circuit Court of Appeals for an emergency stay to delay trial court hearings involving the state secrets privilege and the only U.S. chapter of a defunct Islamic charity based in Saudi Arabia.
A ruling could come as early as Friday in the long legal battle over the Al-Haramain Islamic Foundation chapter in Oregon, a case that could challenge warrantless wiretapping by the Bush administration.
But government lawyers warned in arguments filed Wednesday with the 9th Circuit that U.S. District Judge Vaughn Walker, the chief judge for the District of Northern California, may not be able to protect against the release of sensitive information if the case is allowed to proceed.
"The district court has made clear that it will provide ... access to classified information over the objections of the Executive (Branch)," the Justice Department said. "That access, once granted, cannot be undone."
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 Agency.
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 show the wiretapping. But the government dug in its heels, reluctant to share the documents even with federal judges.
The U.S. Treasury Department in 2004 designated the charity as an organization that supports terrorism before the Saudi 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, an attorney for the ACLU chapter in Northern California, said the Al-Haramain case finally allows the issues to be decided by a court.
"The state secrets privilege is being invoked here, we think, to shield illegal conduct from review by courts," Brick said. "It's very important that the Obama administration look at these issues with fresh eyes."
The appeals court sent the Oregon case to Walker, who ruled in July that the Foreign Intelligence Surveillance Act pre-empts the state secrets privilege and grants Al-Haramain standing to sue.
The act, known as FISA, was enacted in 1978 to allow courts oversight of surveillance requests and prevent domestic spying abuses. It was later amended by the USA Patriot Act.
Walker has already ordered the government to grant top security clearance to Al-Haramain attorneys, a step the government argued Wednesday still will not allow them access to the documents because the National Security Agency director has determined they can be viewed only by officials with a valid "need to know."
In a motion filed Monday, Al-Haramain attorneys said the government is arguing that federal judges cannot protect national security.
The defunct charity's attorneys said FISA "gives the judge authority to employ appropriate security measures as this case moves forward, and he has amply assured that he will use those measures effectively to protect national security."
They also argued that without the right of a court to review classified documents, "the President would be able to evade any private FISA action merely by invoking the state secrets privilege."
Earlier this month, Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.
But on the same day, the Obama administration cited the state secrets privilege in an extraordinary rendition case involving the CIA and a Boeing Co. subsidiary accused of illegally taking suspected terrorists to foreign countries that tortured them.