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Obama's Approach to Protecting 'State Secrets' at Issue

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

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.


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