Judge Revisits Warrantless Eavesdropping

By Carrie Johnson
Washington Post Staff Writer
Thursday, June 4, 2009

A federal judge yesterday declined to penalize Justice Department lawyers for flouting his orders in a sensitive electronic surveillance case where the Obama administration sided with its predecessors to the alarm of civil liberties groups.

But U.S. District Judge Vaughn Walker did not give the government what it wanted, either. The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of President Obama's approach to protecting state secrets.

Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority.

The case involves the al-Haramain Islamic Foundation, an Oregon charity whose lawyers apparently were overheard on phone conversations under a highly classified National Security Agency surveillance program. The dispute is the deepest and most advanced case to plumb the Bush era's electronic eavesdropping initiative.

Government lawyers for Obama's Justice Department angered the judge this year by arguing that the charity did not have a "need to know" sensitive information and by asserting that they might withdraw documents from the court rather than turn them over to plaintiffs.

Yesterday, Jon Eisenberg, who represents the defunct charity's lawyers, said the Justice Department is now in a position of spelling out its view of executive power, which could conflict with Obama's rhetoric on the campaign trail.

Eisenberg said the judge put off for a later date the charity's request that the government pay its legal fees.

"This is not an ordinary discovery dispute in an ordinary case," Justice Department spokeswoman Tracy Schmaler said. "It involves information that our nation's highest elected and military officials have determined must be protected because such disclosure would irrevocably compromise important national security interests. These officials have submitted lengthy explanations to the district court for their reasoning. We are grateful that the court recognized the importance of this interest."

Already, Obama and Attorney General Eric H. Holder Jr. have launched reviews of the government's strategy for protecting state secrets, including ways that could give judges more authority to review sensitive materials rather than dismissing lawsuits altogether.

In April, a federal appeals court in California rejected the Obama administration's effort to invoke the state secrets privilege in a case involving the rendition of terrorism suspects to secret CIA "black site" prisons overseas.

Criticism of the state secrets argument has gained currency among congressional Democrats. Today, the House Judiciary Committee will hold a hearing examining ways to protect classified information without crippling whistleblowers' ability to sue. The Senate Judiciary Committee also could vote as early as today on a similar legislation drafted by Chairman Patrick J. Leahy (D-Vt.).

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