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

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.

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."

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