Obama DOJ Defies Federal Judge

By
Monday, March 02, 2009 at 12:37 am
Barack Obama (WDCpix)

Barack Obama (WDCpix)

A heated confrontation is brewing between the Obama administration and the federal judiciary.

Late on Friday, the Justice Department’s lawyers filed a brief with a federal district court in California challenging the court’s power to carry out its own order. The government lawyers insisted that the court has no right to make available to the opposing lawyers in the case a classified document regarding the Bush administration’s warrantless wiretapping program, even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret security clearances, and the document would not be released publicly.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

As TWI reported on Friday, the case of Al-Haramain v. Obama presents one of the first direct challenges by a victim of the Bush National Security Agency’s warrantless wiretapping program against government officials. But the government has argued vigorously to have the case dismissed, invoking the so-called “state secrets privilege” to refuse to turn over information about the program, and has refused to provide the organization’s lawyers use of a document that reportedly reveals that Al Haramain was one of the program’s victims. Although U.S. District Judge Vaughn Walker has repeatedly rejected the Justice Department’s argument, DOJ lawyers filed an emergency appeal; on Friday afternoon, the Ninth Circuit Court of Appeals rejected it.

So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”

Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court.

Realizing this, the Justice Department lawyers on Friday wrote: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”

In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.

“It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge Walker’s chambers to seize the classified material from his files!” wrote Jon Eisenberg, Al-Haramain’s lawyer, in an e-mail on Saturday. “In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.”

The stand-off centers on who has the power to decide whether classified information must be made available to someone outside of the government. The Justice Department insists that only the director of the relevant executive agency has that power; and in this case, the Director of the National Security Agency has decided that Al-Haramain and its lawyers should not be allowed to see the classified document, because they don’t have a “need to know” the information it contains.

In fact, it’s clear that in order for Al-Haramain to pursue its case against the government, its lawyers need at the very least the sealed document that indicates they were wiretapped. Indeed, it’s the only known evidence that indicates that the Islamic charity was wiretapped without a warrant; without it, the organization and its lawyers don’t have standing to sue the government.

That’s not a concern of the Justice Department, however, which insisted on Friday: “the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access.”

The Obama administration “seems to be provoking a separation-of-powers confrontation with Judge Walker,” said Eisenberg.

The government’s latest move is just another in an increasingly aggressive set of tactics it’s been using to defend broad executive power to conceal evidence of illegal activity by the Bush administration. In both this case and another case I wrote about earlier, Mohamed v. Jeppesen Dataplan, the Obama administration has invoked the “state secrets” privilege to argue that the subject matter of the lawsuits are themselves state secrets, and therefore that the cases must be dismissed.

Civil liberties advocates had hoped that the Obama administration would be more open about the workings of government – and particularly about the illegal activity that occurred in the name of fighting terrorism under the Bush administration. But they’ve been sorely disappointed. In national security cases, the Obama administration has aggressively used the “state secrets privilege” to insist that it can withhold classified evidence even if that’s contrary to Congressional law.

“In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States,” Marc Rotenberg, Executive Director of the Electronic Privacy Information Center and an adjunct professor of law at Georgetown University said last week. “We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter,” Rotenberg said. The significance of the Al Haramain case is “the apparent willingness of the Obama administration”s justice department to carry further that same argument in federal court. It is of great concern.”

Another interesting piece of the government’s filing on Friday – actually, its second filing, at 1:00 AM Eastern time – is that the government, which was supposed to report to the judge about which documents it will declassify, says that it won’t declassify anything. While that’s not a big surprise, the declassification report also says that its previous classified submission to the court contained an error – though it can’t say what that error was, because it’s classified. And, to support all this, the government filed four secret declarations by government officials — which no one but the judge is allowed to see.

“We’ve always suspected that the previous secret filings contained inaccuracies and maybe even outright lies, which is why we have been fighting so hard to see them,” said Eisenberg. “Now it seems we might have been right. Maybe, now that Judge Walker may be about to let us see them, the Government is worried that we’ll spot the lie, so they’re trying to ‘take it back.’ This is extremely weird.”

Contacted over the weekend, the Department of Justice declined to comment, saying the court filings speak for themselves. But David Golove, a professor at New York University School of Law and expert on executive power who’s not involved in the case (and had not seen the latest court filings), said the Obama administration’s latest brief may reflect simply the executive’s usual reluctance to turn over classified information until it absolutely has to. If the government keeps appealing every action by the district court, he speculated, the Ninth Circuit Court of Appeals may finally give in and rule on whether the government has to comply with FISA, or whether it can continue to conceal evidence by invoking the state secrets privilege. Although Judge Walker ruled in al-Haramain’s favor, no court of appeals has ever addressed the issue.

“When a court of appeals tells them they have to hand over the information, will they comply, or will they go to endless ends to prevent it from happening? I don’t think we’ve reached that yet,” said Golove. “It might be fair to view this as just a consquence of fact that they find themselves in the funny position of having to reveal classified information to people they don’t want to before getting a higher court ruling on it,” he added. Then again, he added: “That’s at least one interpretation. We have good reason to be suspicious.”

Comments

36 Comments

The Washington Independent » Obama DOJ Defies Federal Judge : PlanetTalk.net - Learn the truth , no more lies
Pingback posted March 2, 2009 @ 4:02 am

[...] Excerpt from:  The Washington Independent » Obama DOJ Defies Federal Judge [...]


Hawaiianstyle
Comment posted March 2, 2009 @ 11:53 am

1. Transparency is a policy expressed by the President.

2. National Security is a defense to complying with the courts by the President.

3. Apparently now, deciding what evidence is relevant to an opponents case is now a policy of the Presidents department heads.

Take your choice vote for no. 1 or no. 2 & 3.

If you vote for 2&3 throw out no. 1, burn YOUR version of the Constitution and be prepared for a long national nightmare of the EXECUTIVE Branch of the Government being above the law.

What would be the point in winning the war on terror if we lose all our rights and become subjects to our President? If that is the case who won the war?

Talk is cheap Mr. President. In the dark all cats are gray.


Abraham Ben Judea
Comment posted March 2, 2009 @ 1:19 pm

States secrets act does not insure “domestic tranquility”
States secrets breed disdain towards the secret keepers. When a population realizes that its own government considers each and everyone of us the enemy, that population will refuse to cooperate. As much as the citizens are now doing. That what we call apathy, is also disdain, a refusal to cooperate. The fall of America will come from within and it has started through the State Secret act AKA CRIMINAL COVER UP.
Abraham Ben Judea


Jess Wondrin
Comment posted March 2, 2009 @ 2:46 pm

If the Ninth Circuit Court of Appeals ruled against the Obama administration would this likely be taken to the U.S. Supreme Court? If that's the case, how long would it take for the Supreme Court to rule on it? I'm thinking it would certainly be after Ruth Bader-Ginsburg–reportedly very ill with cancer–retires from the bench.

Following that line of thought, I wonder if a litmus test for the Obama Administration's first Supreme Court nominee (and of course this would never be openly acknowledged) would be that the nominee has to support the Obama Administration's assertion of the “state secrets privilege”? In other words, running down the clock to give the Obama Administration the opportunity to place a “ringer” on the Supreme Court in order to get a favorable ruling on this case.


retr2327
Comment posted March 2, 2009 @ 3:47 pm

“If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”

“In other words, the government lawyers threatened to physically remove the document from the court files”

I'm not seeing those “other words,” or any reasonable equivalent, in the Gov't's message. What it seems to me to be saying is that if the Court is inclined to grant plaintiffs access to the document (implicitly, on the theory that it would be unfair to allow the Gov't to claim state secrets based upon this document without letting the plaintiffs use it as well), then the Gov't will “withdraw” the document from submission (and use) in this case.

Now, attorneys “withdraw” previously filed documents from the Court on a regular basis, for a variety of reasons (see, e.g., Stanford's attorney, who withdrew all prior representations to the Court when he realized what a crook his client was). Such withdrawal does not, as a general rule, involve having people storm the Court and physically remove documents against the Court's will.

I think you're getting played by the plaintiffs' counsel. And I say that as someone who has no great affection for the whole state secrets doctrine; I'd like to see it sharply curtailed, if not totally eliminated.


John H Kennedy
Comment posted March 2, 2009 @ 5:50 pm

HARD TO BELIEVE OBAMA IS Trying to conceal evidence of illegal activity by the Bush administration.
Obama's Justice Dept. should be prosecuting them.

Holder's/Obama's pronouncements on Torture, etc
Are To Be Seen As Just Political Posturing UNLESS

A Special Prosecutor
Is Appointed VERY SOON!

We understand what our politicians really stand for by how they act and do not act, Not Just By What They Say.

So IF Obama and Holder would rather We Believe that “THEY Really believe Torture is Illegal”, the Only Way They Can Prove It To We The Voters,
IS TO APPOINT A Special Prosecutor.

Obama said,

“no one is above the law”

SO Congress must demand and the Justice Dept must appoint a Special Prosecutor with Subpoena Powers and the authority to indict all those officials found to have violated Federal Laws, Our Constitution or the Geneva Convention on Torture. The Statute of Limitations starts to run out in March. Prosecution will stop unnecessary wars and the damage to our economy caused by presidential lies and Abuse Of Power. Bush & Cheney confessed that they ordered torture. Very little additional investigation is needed.

Sen. Leahy & Rep. John Conyers' “blue ribbon commissions” will be nothing but a white wash and a burial for all time of the true facts.

We do not want a commission. We want them prosecuted.

YOU CAN HELP MAKE THEM PROSECUTE!

SIGN THE PETITION To Prosecute at

http://IndictBushNow.org

Have your local progressive group Endorse this Letter to Attorney General Holder

http://ProsecuteBushCheney.org

Prosecute so our 30,000+ US Soldiers who were killed or maimed have not suffered in vain


obama's mama
Comment posted March 2, 2009 @ 7:11 pm

the federal government of the united states of america has become irrelevant.


Vefor Vendetta
Comment posted March 2, 2009 @ 7:14 pm

I am so glad I found this series of articles about the state secrets privilege and the inane arguments being made by the Obama DOJ. I compliment the author — this is a very well-written piece.

I am confounded by the early moves of the Obama DOJ because it runs counter to everything I heard from Candidate Obama and from the Democratic Party in general.

In fact, there is legislation pending in Congress to revise the state secrets privilege (The State Secrets Protection Act) so that is cannot be used to wholesale dismiss cases based on secret affidavits. The privilege should only be used to object to certain pieces of evidence rather than cut off access to the Justice system.

I first learned about the issue when reading about the FBI Whistleblower Sibel Edmonds and I commend readers interested in this subject to research her case.


Bush vs. Obama on State secrets « Petunias
Pingback posted March 2, 2009 @ 9:16 pm

[...] wondering if this stuff was released now to get our attention away from this almost as stunning bit: So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama [...]


meg
Comment posted March 3, 2009 @ 5:16 am

The federal government cannot overrule the state governments. This shows us exactly what our federal “government” is up to, and if we let them get away with it, our rights will soon be flushed.

Wake up people!


davidgmills
Comment posted March 3, 2009 @ 7:59 am

There are just some things lawyers should not do, no matter who they represent.

Taking this kind of position by government lawyers borders on the unethical.

This from an attorney of 32 years.


I recant, but only slightly | Same as it Ever Was
Pingback posted March 3, 2009 @ 5:19 pm

[...] Apparently not! Obama DOJ Defies Federal Judge [...]


PoliTrix » Blog Archive » The OLC Memos and State Secrets
Pingback posted March 3, 2009 @ 10:01 pm

[...] seems at odds with the “increasingly aggressive set of tactics,” as lawyer/reporter Daphne Eviatar describes them, of the current DOJ to employ the same state secrets approach as the Bush administration in the [...]


Herb Hoffman
Comment posted March 4, 2009 @ 6:13 am

We are seeing the fruits of the failure to impeach Cheney and Bush. The strongest argument for impeachment was to prevent the unconstitutional destruction by the Executive Branch of the balance of powers. The “imperial presidency” is very seductive and Obama has been seduced. We, the People, must continue to speak out against these incursions into the civil liberties of citizens and wrest back the Constitution.


rh
Comment posted March 4, 2009 @ 8:05 am

The US Criminal Justice system is a Criminal Justice System. A system where a wealth theif lives in his 7 million penthouse while a poor man stealing some food gets 25 years to life (3 strikes you are out). . A Justice system where the criminals are turned into innocents and innocents are persecuted into criminals. The US Criminal Justice System is where you are considered innocent until you run out of money.

A capitalist justice where the rich buy a better justice system with nit picking details while the poor plea bargain.


Correcting the confused al-Haramain reporting « Later On
Pingback posted March 4, 2009 @ 1:52 pm

[...] really confused reporting on what happened in the al-Haramain case on Friday (see here, here, and here, for starters), that I’m going to take the trouble of trying to correct [...]


Wondering
Comment posted March 4, 2009 @ 3:06 pm

Why not, as precedent recognizes, redact the portions of the document, but disclose only those parts relevant to the litigation? Inadvertent disclosures are admissible.

The government's position calls attention to the very thing it hopes to distract attention: Domestic surveillance of legal counsel, without warrants, in alleged breach of FISA requirements.


Radical Vixen » Blog Archive » Smells Like Bush To Me
Pingback posted March 11, 2009 @ 9:40 pm

[...] the Washington Independent: Obama DOJ Defies Federal Judge “A heated confrontation is brewing between the Obama administration and the federal [...]


Lifelongtrekker
Comment posted March 15, 2009 @ 5:19 am

My sentiments EXACTLY!!!
I also have another term that comes to mind and feel it is warranted here: Does “Hell in a handbasket” sound appropriate?
Wake up!!!! We the people have to start fighting and objecting again. Or as the eloquent writer above stated; the “Government will be above the law”


Torture memos to come out? « Petunias
Pingback posted March 23, 2009 @ 5:50 pm

[...] President Obama releases these memos, then perhaps he will revisit some of his problematic orders about state secrets. That would be really [...]


Daphne Eviatar on open-government promises « Later On
Pingback posted March 25, 2009 @ 2:21 pm

[...] the court ordered (turn over critical documents that would allow the suit to go forward) and hence, it was not going to comply. What’s more, the new, open, free information-loving administration basically threatened to send [...]


Frank
Comment posted April 7, 2009 @ 3:29 pm

“Democracy requires accountability, and accountability requires transparency.” – President Obama January 2009

“We have to use technology to open up our democracy. It's no coincidence that one of the most secretive administrations in our history has favored special interests and pursued policies that could not stand up to the sunlight. As president, I'm going to change that.” – Barack Obama

“The Bush Administration has been one of the most secretive, closed administrations in American history. Our nation’s progress has been stifled by a system corrupted by millions of lobbying dollars contributed to political campaigns, the revolving door between government and industry, and privileged access to inside information-all of which have led to policies that favor the few against the public interest.” – Barack Obama

“As a nation, we have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. These aren't arbitrary ideas. These are the concrete safeguards that make sure that surveillance hasn't gone too far. That someone is watching the watchers.” . – Barack Obama

Gee whiz, gosh, darn, and drat! King Obama’s justice department has invoked the “state secrets” privilege. Who could have foreseen such treachery?

“Those who have been once intoxicated with power and have derived any kind of emolument from it can never willingly abandon it.” — Edmund Burke

“Monarchy would not have continued so many ages in the world had it not been for the abuses it protects. It is the master of fraud which shelters all others (Thomas Paine, 1792).”

“For those looking for security, be forewarned that there's nothing more insecure than a political promise.” — Harry Browne

“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” — John Adams, 1772

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” — James Madison

The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite.” — Thomas Jefferson

In a Democracy, the people get the government they deserve – Alexis de Tocqueville

We deserve the government we get! Wake up people! Time is running out. Demand to know the truth now. Demand justice and accountability now. The truth shall set us free from corporate tyranny!


Dredd
Comment posted April 16, 2009 @ 11:04 am

There is legislation pending which supports the judge's view:

http://blogdredd.blogspot.com/2009/04/state-sec…

on a subject the founders paid particular attention to:

http://blogdredd.blogspot.com/2009/04/common-se…


Dredd
Comment posted April 16, 2009 @ 6:04 pm

There is legislation pending which supports the judge's view:

http://blogdredd.blogspot.com/2009/04/state-sec…

on a subject the founders paid particular attention to:

http://blogdredd.blogspot.com/2009/04/common-se…


Judge rejects DoJ arguments « Later On
Pingback posted April 20, 2009 @ 1:39 pm

[...] that supposedly proves al-Haramain was wiretapped. The Justice Department even went so far as to threaten to remove the document from the judge’s [...]


New Al Haramain Filing | Design Website Blog
Pingback posted July 10, 2009 @ 10:07 am

[...] lawyers for the Obama administration followed its predecessor’s lead in the al-Haramain case, attempting to void the proceedings by invoking the “state secrets” privilege, which instructs judges to stop court [...]


s0beit
Comment posted August 4, 2009 @ 9:25 am

wow.

just, WOW.


bestcbstore
Comment posted September 1, 2009 @ 4:10 am

Stop Any Type Of Compulsive Picking Disorder


But it’s a secret « Petunias
Pingback posted April 1, 2010 @ 12:40 pm

[...] it’s a secret Posted on April 1, 2010 by fredtopeka Despite threatening to take away documents from a judge, despite defying a judge’s orders, the Obama administration lost its [...]


Discount Louis Vuitton
Comment posted August 20, 2010 @ 9:02 am

“Democracy requires accountability, and accountability requires transparency.” – President Obama January 2009


cinderella
Comment posted September 2, 2010 @ 11:13 pm

Then let Obama and Bush be wiretapped. What you failed to understand is that while the battle rages over correcting these horrible injustices, the victims of George Bush's bullyish administration is still under attack. Right under the Judges nose the victims of these unfounded accusations are still being cheated, violated, privacy grossly invaded, wiretappings persistently ongoing, bank accounts monitored mail seized and lives ruined and for no reason at all. In my case it was because I won a grievance against an uneducated supervisor that had vague connections to these political thugs. This supervisor was clearly in the wrong and because of pompous pride, I was turned over to this nightmare! They also install unsuspected cameras within apartments.


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