With California’s governor and the attorney general declining to appeal on their behalf, the nonprofit and religious groups supporting Prop 8 would have to prove sufficient injury as a result of the ban being overturned in order to initiate a successful appeal. Judge Walker, for one, expressed skepticism about that prospect in his ruling, but it’s up to the 9th circuit now to asses whether they are allowed to keep fighting the issue in the courts.

Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.

Although the customers who sued, represented by the Electronic Frontier Foundation and the American Civil Liberties Union, claimed that the immunity provision of the law was unconstitutional, Judge Walker disagreed.

Significantly, however, he noted that at least one part of the argument presented “a close question,” leaving open the possibility that his decision could be reversed on appeal.

The lawyers who brought the case said yesterday that they plan to pursue that course.

“We’re deeply disappointed in Judge Walker’s ruling today,” Cindy Cohn, legal director of the Electronic Frontier Foundation, told Keith Perine at CQ Politics. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

Judge Walker also specifically wrote that his decision in the case against the telecoms does not foreclose other cases based on similar facts filed against the government.

“The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities,” Vaughn wrote.

Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.

A hearing on the merits of the case — whether the government broke the law when it wiretapped Al-Haramain and its lawyers without a warrant — is scheduled for September 1.

A ruling from Judge Walker last July that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA, does not bode well for the government.

Jon Eisenberg, Al-Haramain’s lawyer, summed it up at the time this way: “Judge Walker ruled, effectively, that President George W. Bush is a felon.”

As I first reported in February, the case — al-Haramain Islamic Foundation v. Obama — challenges the federal government’s warrantless wiretapping program.  The now-defunct Islamic charity is suing the government for wiretapping the group and its lawyers in violation of the Foreign Intelligence Surveillance Act, or FISA.

The Obama administration, like the Bush administration before it, asserted the “state secrets” privilege, saying that the entire subject matter of the case — the National Security Agency’s warrantless wiretapping program — was a state secret, and disclosing any details about it to the the lawyers representing the Islamic charity would pose a national security threat. The judge rejected that argument, as did the Ninth Circuit Court of Appeals.

But the Obama administration wasn’t going to let some federal judge tell it what to do. In March, it argued that Walker lacked the authority to reveal the secret document 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 files.

In short, the Obama administration seemed to be setting up a direct standoff between the executive branch and the federal judiciary.

On Friday, the court rejected the Obama administration’s arguments and ordering the Justice Department to work out a procedure with al-Haramain’s lawyers by May 8 to allow them to view the secret document in a way that won’t compromise national security.

Let’s see what the Justice Department does now.

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

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.”