Access to Top-Secret Papers Is at Issue in Wiretapping Case

The Obama administration has set up a showdown this week with a federal judge in San Francisco, insisting in a court filing that it has no obligation to provide access to top-secret documents in a wiretapping case.

Justice Department lawyers further argued in their Friday filing that Chief Judge Vaughn R. Walker had no cause to penalize the government over its refusal to make the documents available.

The department cited national security concerns for its position. Its filing said that President Obama has authorized access to classified information on a "need-to-know" basis, and argued that the government "cannot be sanctioned for its determination that plaintiffs do not have a need-to-know classified information."

The now-defunct Oregon chapter of the al-Haramain Islamic Foundation is suing the government over its warrantless wiretapping program. Walker threatened on May 22 to punish government lawyers for not offering a plan for how the lawsuit can proceed without giving foundation lawyers access to the documents. He has scheduled a hearing for Wednesday on the matter.

Treasury Department officials inadvertently turned over the top-secret documents to al-Haramain lawyers in 2004. The classified phone surveillance log suggested that the National Security Agency had wiretapped al-Haramain board members and some of the foundation's attorneys without a warrant.

Treasury in 2004 designated the foundation an organization that supports terrorism.

FBI agents recovered the log months later. Al-Haramain's lawyers have argued they need it back in their legal challenge of the wiretapping program.

The case has been a focal point for civil liberties groups questioning the legality of the warrantless wiretapping program. It is also one of several instances in which the current administration has followed the Bush administration in citing national security as justification for keeping secrets.

Attorney General Eric H. Holder Jr. has ordered a review of all such "state secrets" assertions by the Bush administration in defense of lawsuits. But the Obama administration is also fighting the court-ordered release of prisoner-abuse photos and is reviving, in a revised form, military tribunals, where suspected terrorists have limited access to information.