Justice Department Again
Defends Bush on State Secrets 

KEITH PERINE / Congressional Quarterly 21feb2009

The Justice Department has filed an emergency stay motion at the 9th Circuit, asking it to freeze a district judge’s order in a lawsuit challenging the legality of President Bush’s warrantless surveillance program.

It is the second move in the 9th Circuit by Obama’s Justice Department this month to continue shielding controversial Bush counterterrorism policies in such lawsuits. And it is likely to give a fresh push to Democratic legislation pending in Congress to circumscribe Obama’s use of the “state secrets privilege” to withhold government information.

“Disclosure of the material at issue here would cause exceptionally grave harm to the national security and result in irreparable injury to the United States,” Justice Department lawyers wrote in their brief. The Obama administration’s stance is all the more striking because the immediate question is whether the plaintiffs in the case can have access to classified material they have already seen.

U.S. District Judge Vaughn R. Walker ruled last year, in a case now known as Al-Haramain Islamic Foundation v. Obama, that the Foreign Intelligence Surveillance Act trumps the state secrets privilege, which Bush used to stymie the lawsuit challenging the legality of the surveillance.

What sets this lawsuit apart from others against what the Bush administration called the “Terrorist Surveillance Program,” is that the plaintiffs saw a classified document accidentally shown to them by a Treasury Department official that they say proves they were surveilled under the program, run by the National Security Agency. The plaintiffs were ordered to return the document to the government. The Bush administration then successfully employed the state secrets privilege to keep the document out of the litigation.

But by January 5, the plaintiffs had shown Walker enough unclassified evidence that they were targeted by the NSA to convince him they had a right to proceed under FISA. He ordered the government to give him the “Sealed Document” for his private review. And he also ordered the government to process top-secret clearances for as many as three of the plaintiffs’ attorneys, so they could read and respond to orders Walker might issue after he reviews the material.

According to the Justice Department, there is also a possibility Walker will show the actual material to the plaintiffs’ attorneys. The purpose of Friday’s emergency stay motion is to block that from happening. But in its filing, the Justice Department made clear that it thinks Walker was wrong to rule that FISA displaced the state secrets privilege.

All in all, it’s a lot of trouble for the Obama Justice Department to go to to block the release of information that was already accidentally disclosed, concerning a controversial Bush program that is no longer in existence.

On Feb. 9, the Justice Department maintained Bush’s state secrets privilege defense in a 9th Circuit appeal of a case in which a group of people sued a company allegedly involved in the CIA “rendition” program of transferring suspected terrorists to other countries, allegedly to be tortured..

source: 21feb2009

Secrecy and Security

EDITORIAL / Chicago Tribune 21feb2009

During the presidential campaign, Barack Obama criticized President Bush's handling of the war on terror, particularly his "excessive secrecy." Often, the Bush administration appeared to use secrecy not only to protect sensitive national security information but to shield itself from scrutiny. So it came as a surprise recently when Atty. Gen. Eric Holder decided that the only thing to do with the old policy is keep it.

It happened in a lawsuit claiming that the CIA abducted and tortured suspected terrorists. The Bush administration sought to dismiss the case by invoking the state secrets privilege, arguing that merely to let it proceed would endanger national security. A district court agreed. When the verdict was appealed, the Obama administration said it was taking "exactly" the same position.

No one really doubts that at times, revealing classified information can jeopardize national security. In those instances, the rights of individual plaintiffs may have to give way, even if they have been badly wronged by the government. But that doesn't mean the current method of addressing the conflict is reasonable or necessary.

At the moment, the decision lies almost entirely with the executive branch. When the Justice Department asserts its right to withhold information, judges have little choice but to accept their national security claims. As a result, the courts and the public have no way to be sure if the government is acting out of a well-founded fear for public safety or a fervent desire to conceal its own wrongdoing.

Is there a better way? Yes, and one already in use in criminal cases when the government wants to prosecute an accused spy or terrorist without divulging secrets that the defendant may demand.

In these instances, the judge is entitled to examine the classified material in question to decide if it's truly needed. If so, the judge can redact particular bits of information—say, the name of a source—that are not essential for the case.

This approach is a sensible compromise that has worked well over nearly 30 years. U.S. Atty. Patrick Fitzgerald, after winning a conviction in one terrorism case, said, "I don't think people realize how well our system can work in protecting classified information."

The same system could also work in civil cases like this one, which is why legislation has been introduced in Congress to apply it to them as well. Judges would still have the authority to kill lawsuits that require exposure of critical classified material. But under the proposed changes, unlike now, they would be able to make a fully informed decision. In many cases, it is possible to uphold both national security and the rights of individuals whom the government may have mistreated. Congress should get on with it.

source: 21feb2009

Feds: Block Lawyers From Classified Document

BOB EGELKO / San Francisco Chronicle 21feb2009

The Obama administration filed an emergency request with a federal appeals court Friday to stop a judge in San Francisco from allowing lawyers challenging the government's wiretapping program to see a classified surveillance document.

The document is the central evidence in the last remaining lawsuit over the legality of former President George W. Bush's 2001 order for the National Security Administration to intercept phone calls and e-mails between Americans and suspected terrorists in other nations.

The suit by Al-Haramain Islamic Foundation contends Bush violated a federal wiretapping law and constitutional restrictions on searches by authorizing the surveillance without approval from Congress or the courts.

The organization, a now-defunct charity, was inadvertently sent a document in 2004 that reportedly showed it had been wiretapped during an investigation that led to its classification as a terrorist group.

The group returned the document to the government, but Chief U.S. District Judge Vaughn Walker ruled last month that Al-Haramain's lawyers were entitled to see it, after receiving security clearances, so they could defend the organization's right to sue. Other lawsuits over the program have been dismissed because the plaintiffs have been unable to prove that they were targets of the surveillance program.

Two Al-Haramain lawyers have passed FBI background checks, but the Justice Department has denied them security clearances, saying they did not need access to the classified material. In a Feb. 13 ruling, Walker gave the government until Feb. 27 to tell him how it would comply with his order.

On Friday, the department asked the Ninth U.S. Circuit Court of Appeals in San Francisco to intervene and prevent "imminent disclosure of highly classified information."

Jon Eisenberg, a lawyer for Al-Haramain, said he is disappointed. At least in this case, he said, "The Obama administration is simply stepping into the shoes of the Bush administration."

source: 21feb2009

The Left Field:
Obama and the State Secret Privilege

ADAM ELEWA / The Stute 20feb2009

I am sure all of you remember both George W. Bush and Dick Cheney's love of secrecy: the scripted press conferences, man sized safes, and most importantly the misuse of the State Secret Privilege to avoid litigation. Originally, this privilege was awarded to the President as a means of protecting sensitive information from being exposed in court, yet allow for an adequate trial to take place. The State Secret Privilege, as it was conceived, was a pragmatic attempt by our legislators to allow for the checks and balances that keep us safe from tyranny to function even in a time of war. For example, if the schematics of a nuclear sub had to be considered in trial, a trusted expert with top secret privilege would read them and relay a meaningful and delicate summary of its contests to the court.

The case goes on, an accurate judgment is made and the America Empire lives to see another day. However, the Bush administration's use of this privilege has primarily been to have court cases thrown out entirely. This is an important distinction, as it severely limits the judicial branch, and subsequently the American people, in their ability to investigate crimes that may have been committed by the administration.

What's Obama's stance on this issue, you ask? Well, on his campaign website, Obama defines government secrecy as an important problem that must be addressed. Obama even makes an effort to name the State Secret Privilege and the Bush administration's application of it specifically in discussion of the matter. One of the main reasons I voted for Obama was my perception that he shared my appreciation of America's protective laws and would make notions of liberty and justice fashionable again.

However, to quote the famous philosopher Mick Jagger, "You can't always get what you want." Obama has adopted the Bush administration and mainstream GOP's conventional wisdom on the matter. In other words, don't hold your breath if you hoped to see judicial review of anything the president has done in the last eight years.

As the law stands, we are operating under a benevolent dictatorship. The ability for the President to detain subjects of this country without trial, evidence, or fear that anyone would care to question the constitutionality of these actions is a dangerous precedent to set.

We, as citizens of a country that purports to be a democracy, must not let this injustice stand. We must return to the hearts of those that rule us the fear that keeps them from abusing the power we give them. A two-tiered justice system that allows the powerful to avoid judicial scrutiny is not what the founders of this country envisioned.

You may not agree with my stance on torture or domestic spying, but can we at least agree on the proper role of our judicial system in its check on executive power?

The Stute is published every Friday during the academic year by the students of Stevens Institute of Technology, Hoboken, New Jersey.

source: 21feb2009