Court of Appeals Denies DOJ Attempt to Hide Evidence of Warrantless Wiretapping

Created: February 27, 2009 15:13 | Last updated: July 31, 2020 00:00

A U.S. Court of Appeals for the Ninth Circuit in San Francisco today rejected the Obama Justice Department’s attempt to continue to conceal evidence of warrantless wiretapping.

As I wrote in my story today, the government filed an emergency appeal last week hoping to halt the release of documents showing that the National Security Agency, under President George W. Bush, had secretly wiretapped the Al-Haramain Islamic Foundation — a Saudi charity with an office in Oregon that the government deemed a terrorist organization and shut down. Al-Haramain and its lawyers, who claim they were also wiretapped, need the documents (which they’ve already seen because the government released it accidentally) to proceed with their lawsuit against government officials.

Today, they got a significant step closer.

The Justice Department now has to file a plan with the district court setting out how and when it will release the relevant documents, said Jon Eisenberg, a lawyer representing Al-Haramain. He said his clients may also be able to obtain access to a series of secret arguments that were filed earlier in the case, which they have not been permitted to see.

The Ninth Circuit’s refusal to consider the emergency appeal is significant because it also leaves the district court’s ruling in effect. The lower court had rejected the government’s argument that the “state secrets privilege” allows executive agencies to disregard the requirements of the Foreign Intelligence Surveillance Act.