The Bush administration may have passed into history, but its legal briefs linger on. Earlier this month, a federal court held that an Islamic charity could proceed with a lawsuit alleging it was subject to warrantless surveillance by the NSA—and ordered that the government turn over classified documents for review by the judge.
On the eve of the presidential inauguration, however, the Justice Department filed a motion urging the court to stay that ruling pending an appeal, citing the risk of irreparable harm to national security.
At the heart of the legal battle is a secret document accidentally turned over to lawyers for the Al Haramain Islamic Foundation, showing that the charity—which the government has classified as a "Specially Designated Terrorist Group"—was subject to warrantless surveillance, in violation of the Foreign Intelligence Surveillance Act as it stood when the surveillance occurred. The Justice Department successfully argued that the document was protected by the state secrets privilege, and so couldn't be used by Al Haramain to establish grounds on which to challenge the legality of the wiretapping.
But Judge Vaughn Walker, whose court has been hearing both this case and the more widely publicized EFF lawsuits against NSA-friendly telecoms, allowed lawyers for Al Haramain to submit unclassified evidence to establish that they'd been targeted, reasoning that the state secrets privilege was preempted by explicit provisions within FISA allowing "aggrieved persons" to have their cases reviewed in judges' chambers. The point of providing for in camera review, after all, was to permit the court to consider documents that would otherwise be state secrets. Earlier this month, Walker found that Al Haramain had provided enough evidence to trigger the FISA review clause, and ordered the government to both hand over the document that kicked off the litigation, and to begin the process of securing clearances for Al Haramain's attorneys, so that they could be given limited access to classified information in order to participate in the case.
The Justice Deparment isn't happy with that, and they're asking Walker to suspend his orders pending an appeal of that ruling. Noting that "secrecy is a one-way street," the government's motion argues that there will be no effective remedy on appeal once privileged information has been disclosed. Moreover, it argues that even if the "sealed document" at the heart of the case is only reviewed in chambers, any further action in the case would be tantamount to disclosure, because the appellate court recognized the government's privilege "not merely as to the 'content' of the sealed document but over the fact of whether or not plaintiffs had been subject to the alleged surveillance." That fact, of course, would be implicitly revealed by Walker's determination of whether the suit should proceed after reviewing the document.
There is, to be sure, an element of farce here. Not only has the document itself already been seen by uncleared parties, but as plaintiffs' attorney Jon Eisenberg observed this summer, copies of the document were sent to members of Al Haramain's board of directors located overseas. As far as anyone knows, those copies have not been retrieved. The government appears to be trying to close the barn door after the horse has not only left, but boarded a plane to Saudi Arabia.
Still more dismaying to the government is the prospect of further disclosures to Al Haramain's attorneys. Even if those lawyers were granted security clearances, the motion notes, actual access to classified documents typically requires a further "need to know" determination by an executive branch official. "The NSA Director has further determined," the motion somewhat drily observes, "that it does not serve a governmental function... to disclose the classified NSA information at issue in this case simply to assist the plaintiffs’ counsel."
The DOJ also takes issue with Walker's broader legal reasoning. "No court," the motion argues, "has held that an assertion of the state secrets privilege is preempted by statutory law—an issue that is plainly of constitutional dimension because the judgment made by Executive branch officials responsible for national security matters to protect certain information is rooted in the Article II powers of the President."
Attorneys for both Al Haramain and the Justice Department—now part of the Obama administration—will appear before Walker in a hearing this Friday.
