Terror Case May Force Obama’s Hand on ‘State Secrets’

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Thursday, July 09, 2009 at 4:44 pm
President Barack Obama (WDCpix)

President Barack Obama (WDCpix)

A long-awaited filing Thursday in the al-Haramain v. Bush terrorism case before a San Francisco federal judge presents a dare to the Obama administration: embrace the Bush administration’s warrantless surveillance claims, invoke a secrecy doctrine that Attorney General Eric Holder has pledged to overhaul, or allow a case challenging the merits of warrantless surveillance to win.

Lawyers for al-Haramain, a Muslim charity that the Bush administration accused of having links to terrorists, filed a motion Thursday for U.S. District Judge Vaughn Walker to assess the legality of surveillance undertaken outside the boundaries of the Foreign Intelligence Surveillance Act. The motion, obtained by TWI, asks Walker to answer a question central to the Bush administration’s expansion of executive authority: “May the President disregard the requirements of FISA based on inherent presidential power?”

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

Other lawsuits challenging the warrantless surveillance program of the Bush administration have been rejected by the courts, including by Walker, for insufficiently establishing that the plaintiffs were themselves subject to such surveillance — making the al-Haramain filing the most likely vehicle for determining whether the Bush administration broke the law by ordering surveillance outside of the boundaries of FISA.

“This is the culmination of three and a half years of work, over repeated attempts by the government” to shut the case down, said Jon Eisenberg, the lead attorney for al-Haramain. “There have been shenanigans by the Bush Justice Department, which were no surprise, but also by the Obama Justice Department, which has been a shock.”

In March, 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 proceedings because of potential national security concerns created by the airing of sensitive information. The original basis for al-Haramain’s case is a classified phone surveillance log that the government accidentally disclosed to al-Haramain’s lawyers and has since been recovered by the FBI. But Walker allowed the case to go forward after al-Haramain’s lawyers constructed a case using non-classified information — making no use of the so-called “Secret Document” — indicating that the Oregon-based charity was subject to surveillance.

With procedural obstacles cleared, the 41-page motion filed Thursday argues that the publicly available evidence demonstrates that al-Haramain was subject to illegal surveillance. “All you have to do is show me a FISA warrant and I’m gone,” Eisenberg said. More broadly, the motion asks Walker to rule on whether the Bush administration’s circumvention of the FISA statute for its passel of surveillance activities known as the Terrorist Surveillance Program was legal. “The time has come for this Court to address … the overarching constitutional question presented by President George W. Bush’s program of warrantless electronic surveillance,” the motion states. “May the President of the United States break the law in the name of national security?”

The Justice Department did not respond to questions about whether it would contest the al-Haramain motion, and if so, what arguments it would use to oppose it. In the past, Walker has rejected the Justice Department’s claims that even ruling that al-Haramain has the standing to sue would endanger state secrets, and he may do so again. But if the administration seeks to shut the case down using the state secrets privilege, it may antagonize the Senate, where Sens. Patrick Leahy (D-Vt.) and Arlen Specter (D-Pa.) have proposed legislation to restrain the government’s ability to invoke the privilege. Holder last month promised senators that the Justice Department would soon issue a new state secrets policy.

Eisenberg said he is curious to see whether the Obama administration would actually defend the warrantless surveillance activities of its predecessor. The motion seeks to put the administration in a bind by citing numerous statements from senior officials denouncing the Terrorist Surveillance Program as illegal and the constitutional arguments for it to be dubious.

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional,” the motion quotes then-Senator Obama telling the Boston Globe in December 2007. Similar statements recounted in the motion come from Holder; Solicitor General Elana Kagan; Kagan’s deputy Neal Katyal; Assistant Attorney General David Kris; and Associate Deputy Attorney General Donald Verrilli.

“What does Obama do?” Eisenberg said. “This is not just a question of hypocrisy. It’s a big constitutional mistake if he endorses [former Vice President Dick] Cheney’s theory of executive power.”

A full court hearing before Walker is scheduled for Sept. 1.

Follow Spencer Ackerman on Twitter


Comments

15 Comments

Terror Case May Force Obama’s Hand on ‘State Secrets’ | Presidency News - News, articles and blog posts about The Presidency
Pingback posted July 9, 2009 @ 8:32 pm

[...] more: Terror Case May Force Obama’s Hand on ‘State Secrets’ Related articles:Obama Still Pushing Bush State Secrets PowersObama Makes Case for Health-Care [...]


New Al Haramain Filing | Design Website
Pingback posted July 9, 2009 @ 10:45 pm

[...] question–does the executive have the authority to disregard the law? The filing, as Spencer argues, “presents a dare to the Obama administration: embrace the Bush administration’s [...]


mrreynolds
Comment posted July 9, 2009 @ 11:35 pm

I have documents pertaining to allegations of illegal electronic surveillance, obstruction of justice & making false statements in writing to Congress in regards to the documented “existence” of a federal internal affairs investigation which the U.S. Marshals Service denied existed when questioned by Congress. Please review the supporting information within my website. Thank you.

http://www.daprocess.com


teddysanfran
Comment posted July 10, 2009 @ 2:18 am

Thank you for pointing me here from your blog at FDL


teddysanfran
Comment posted July 10, 2009 @ 2:20 am

Although I've had quite enough of the horrible images of my Congresswoman on this website, thank you very much. Any other advertisers, or does my server farm location automatically and only generate horrid snapshots of Nancy?


New Al Haramain Filing | Design Website Blog
Pingback posted July 10, 2009 @ 6:11 am

[...] question–does the executive have the authority to disregard the law? The filing, as Spencer argues, “presents a dare to the Obama administration: embrace the Bush administration’s [...]


Gowan Rosemc
Comment posted July 10, 2009 @ 8:38 am

As common people, we are bored with those terror case, let alone Obama!


Terror case may force Obama’s hand on "secrets" « Later On
Pingback posted July 10, 2009 @ 3:44 pm

[...] in Daily life, Democrats, Government, Law, Obama administration, Torture at 12:44 pm by LeisureGuy Spencer Ackerman in the Washington Independent: A long-awaited filing Thursday in the al-Haramain v. Bush terrorism case before a San Francisco [...]


johnhkennedy
Comment posted July 10, 2009 @ 3:06 pm

I seem to recall candidate Obama promising more openness that this.
What do you all remember? State Secrets hide illegal activities #fb

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calling for a special prosecutor at ANGRYVOTERS.ORG

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Swami_Binkinanda
Comment posted July 10, 2009 @ 11:11 pm

Sentence First! Verdict Later! Off with their heads!


John Hampton
Comment posted July 11, 2009 @ 1:40 am

We are the Patriots of today. The future of our beloved country relies on each and every one of us and we must act now!

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Join us as we march on Washington on September 12th. Our Mission is to present a unified voice of concern over the current administration’s policies regarding taxation, our economy, foreign and domestic policy, as well as our individual constitutional rights as American citizens.

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John Hampton
Comment posted July 11, 2009 @ 1:41 am

feed 'em to the pigs!


Stuff That’s Missing From the Inspectors General Report on Warrantless Surveillance | The Lie Politic
Pingback posted July 12, 2009 @ 4:54 am

[...] a case that would generate inadmissible evidence. That’s one of the issues at stake in yesterday’s al-Haramain filing that I wrote about. And it’s huge. If information from warrantless surveillance made its way into indictments or [...]


louis vuitton
Comment posted August 5, 2010 @ 8:12 am

America is in trouble, the problems and issues are broad and complex and it will take a monumental effort to stop, change and reverse the destructive course that this administration and Congress has put us on. Together, we, “The People” can effect that change! Join us in Washington on September 12th.


Discount Louis Vuitton
Comment posted August 20, 2010 @ 8:36 am

Together, we, “The People” can effect that change! Join us in Washington on September 12th.


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