The Washington Independent
The Washington Independent

Federal Judge Rejects Obama DOJ’s Argument for Hiding Evidence in Wiretapping Case

April 20, 2009 | Last updated: July 31, 2020

While most of us were still reading or recovering from the latest batch of gruesome torture memos released by the Justice Department last week, bmaz at Emptywheel learned and reported that U.S. District Court Judge Vaughn Walker issued his ruling in the al-Haramain warrantless wiretapping case.  In his order, Judge Walker rejects the government’s latest attempt to defy the court, hide the evidence of warrantless wiretapping, and begin an interlocutory appeal to the Ninth Circuit.

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.

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