Ratcheting up the showdown between the Obama administration and the judiciary that began in March, the Justice Department on Friday insisted to a federal judge
Ratcheting up the showdown between the Obama administration and the judiciary that began in Marchthe Justice Department on Fridayinsisted to a federal judge (pdf) in San Francisco that it had no right to sanction the government for repeatedly defying the court’s order.
The government brief was filed in the case of Al-Haramain Islamic Foundation v. Obama, the controversial case I’ve been following in which the Obama administration has repeatedly refused to comply with court orders to allow the plaintiff in the case — a now-defunct Islamic charity that says it was spied on without a warrant by the federal government — to use the document that apparently proves it was indeed the victim of the Bush administration’s warrantless wiretapping program.
Although the Justice Department has repeatedly argued that the “state secrets privilege” requires the case to be dismissed, the court has ruled that it doesn’t. Instead, U.S. District Court Judge Vaughn Walker has ruled, the court can provide Al-Haramain and its lawyers access to the document using standard federal court procedures to protect the evidence from public disclosure. The document is critical because without it, the defunct charity can’t proceed with its lawsuit, and it can’t prove that the National Security Agency under the Bush administration violated the law.
That’s not a good enough reason for the Obama administration to allow the group access to the document, according to the Justice Department. President Obama has only authorized access to such classified information on a “need-to-know” basis, the government argues, so the government “cannot be sanctioned for its determination that plaintiffs do not have a need-to-know classified information.”
That argument seems to beg the question of who gets to decide what the plaintiff “needs to know” — Walker has already ruled, repeatedly, that the plaintiff does “need to know” the information, as it’s the only way for the organization to find out if it was spied on by the government in violation of federal law.
This case has outraged advocates for open government (and attentive bloggers like Marcy Wheeler and Glenn Greenwald), who say it’s a direct violation of Obama’s promises not to classify or otherwise conceal government information unnecessarily.
We’ll be watching to see how the judge responds to this latest government maneuver, but the ultimate question — who gets to decide whether a private party suing the government “needs to know” particular classified information — could well end up before the Supreme Court.
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