In Spy Case, Obama's Justice Department Holds Fast to State Secrets Privilege -- Update

Submitted by MacRonin on February 14, 2009 - 5:20pm

In Spy Case, Obama's Justice Department Holds Fast to State Secrets Privilege -- Update: Via Threat Level

The Obama administration is invoking the state secrets privilege for the second time this week, this time in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

The move, which the judge in the case rejected Friday afternoon, came days after U.S. Attorney General Eric Holder announced the department was reviewing all the litigation it inherited from the Bush administration in which the privilege was invoked.

Also this week, the Justice Department invoked the privilege before a federal appeals court to scuttle a case brought by five U.S. prisoners who claim the CIA was behind their kidnapping, which brought them overseas where they claim they were tortured. 

The litigation tactics underscore that, while the Obama administration has denounced many of the policies of the Bush administration, it has so far not changed litigation tactics in defending lawsuits challenging those policies.

The state secrets privilege was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are usually tossed by judges, at the request of the government.

The latest move for state secrets filed Thursday came when the Justice Department urged a San Francisco federal judge to stay enforcement of a ruling admitting key evidence in a case — evidence the government claims is a state secret. Justice Department lawyers asked U.S. District Judge Vaughn Walker to permit the government to ask a federal appeals court to review his Jan. 5 ruling.

The government wrote (.pdf) that the exposure of the evidence could pose "grave harm to national security." Friday afternoon, Walker denied (.pdf) the Obama administration's motion and asked the government to declare how it wished to proceed by Feb. 27.

The Justice Department took the same position in the same case on Jan. 22, two days after President Barack Obama was inaugurated. Many pundits, bloggers and civil rights groups suggested at the time that it was not the administration's true position.

The legal brouhaha in the spy case concerns Walker's decision to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004.

The document's admission to the case is central for the two former lawyers of the Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in 2005.

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