Judge threatens to penalize Obama lawyers in state secrets, wiretap case

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rawstory.com, May 26th, 2009

A District court judge is threatening to "sanction" Obama Justice Department lawyers who've refused to respond to an order requiring the Department to provide a plan for how the case of a charity caught in a warrantless wiretap should proceed. ReportsThe Washington Post's Carrie Johnson:

The Obama administration has invoked the state-secrets privilege in resisting a lawsuit filed by an Oregon charity whose attorneys may have been subjected to warrantless wiretapping. Late Friday, Chief U.S. District Judge Vaughn R. Walker issued a terse order that raised the prospect of "sanctions" for government lawyers who have not responded to his order for a plan for how the case should proceed. The sanctions may include awarding monetary damages to the charity, the al-Haramain Islamic Foundation.

The Justice Department must respond by Friday.

"The Haramain case is one of the national security battles left over from George W. Bush's presidency," notes Johnson. "Civil liberties groups and left-leaning members of Congress have used the matter to argue that Obama's approach as president conflicts with his campaign promises of transparency."

Obama demurs. He says his administration is reviewing the practice under which state secrets claims are made.

Last Thursday, he said his administration was "nearing completion of a thorough review" of how state secrets claims are applied and averred that his Justice Department would apply a stricter legal test of when such claims would be made.

"We must not protect information merely because it reveals the violation of a law or embarrasses the government," Obama remarked.

It's unclear, however, just what those tests will be. The administration has invoked state secrets in two major areas: preventing documents in cases regarding terrorist suspects from being released, and stopping defense lawyers from gaining access to information collected by the National Security Agency's warrantless wiretapping program.

In a the case involving the terrorist suspect and his "extraordinary rendition," an appeals court struck down the government's use of the state secrets claim.

Adds Johnson:

In the Haramain case, officials at the National Security Agency have determined that attorneys for the charity, who mistakenly received documents reflecting that they may have been the subject of government eavesdropping, do not have a "need to know" about the electronic surveillance program.

That has set Justice Department lawyers who are defending the NSA on a collision course with Walker. Both sides in the case must appear before the judge in San Francisco on June 3 to explain their positions and discuss ways to proceed.

-John Byrne

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