Intellectual Property Law

Obama Says Government Sanctions Unwarranted in Spy Case

By David Kravets

SAN FRANCISCO — The Obama administration refused to budge late Friday and reveal state secrets in a lawsuit weighing whether a sitting president may lawfully bypass Congress and spy on Americans without warrants as President George W. Bush did following the 2001 terror attacks.

In court briefs filed at nearly midnight White House time, the Justice Department was responding to a federal judge’s week-old inquiry on whether the administration should be sanctioned for “failing to obey the court’s orders” in a key National Security Administration lawsuit. The government, as it has repeatedly, urged U.S. District Judge Vaughn Walker to allow the government to appeal his January 5 order requiring the government to develop a plan ? a so-called “protective order” ? that would pave the way to the release of state secrets to plaintiff’s attorneys.

“The United States again respectfully urges the court to consider that the best way out of the present dispute, in which the position of all sides is preserved, would be to permit appellate review over the fundamental and significant separation of powers questions presented before any disclosure or risk of disclosure in further proceedings,” Anthony Coppolino, special litigation counsel for the justice department, wrote Walker.

Coppolino said only the government can decide whether to disclose documents it believes are state secrets.

Walker, who has refused what is known as an “interlocutory” appeal, last week threatened to summarily decide the 3-year-old lawsuit in favor of the plaintiffs, and award unspecified monetary damages to two American lawyers who claim their telephone calls were illegally intercepted by the NSA under the Bush administration. The lawyers represented a now-defunct Saudi charity that the Treasury Department claimed was linked to terrorism.

If Walker issues a default judgment against the government, such a ruling would be a blow to the government, but it would fall far short of deciding the important question the litigation broaches.

Jon Eisenberg, the attorney for the two American lawyers, told Walker earlier in the day in court briefs that the “singular purpose” of the lawsuit was to “obtain an adjudication of the legality of President George W. Bush?s warrantless electronic surveillance program and, more broadly, the Bush Administration?s expansive theories of presidential power.”

Bush said his war powers gave him the authority to eavesdrop on Americans’ electronic communications without warrants.

Eisenberg told the judge that a “win by default” establishes “no legal precedent” and that he wants to have the case decided on the merits.

“Plaintiffs? first choice is a binding decision on the merits. More important than plaintiffs? preference, however, is what the American people deserve: a decision by
this court resolving the extraordinarily important issues presented in this case,” Eisenberg wrote.

The San Francisco lawsuit began when the government accidentally sent the plaintiffs documents that showed their overseas communications with Al-Haramain Islamic Foundation officials were intercepted without warrants. The pair sued, but was forced to return the document because it was marked “top secret.”

The Justice Department, under the Bush and Obama administrations, has repeatedly maintained that the lawsuit should be dismissed because it threatens to expose state secrets.

But after years of legal wrangling, Walker decided in January that the documents were admissible, and ordered the government to craft a protective order that would allow the plaintiff?s counsel to review the documents in secret, without them being disclosed to their clients or the public. A similar process has been applied to lawyers representing Guantanamo Bay prisoners.

The Obama administration refused to comply with Walker?s order. The government is refusing to cooperate with the court?s orders because, as it asserted two weeks ago and again on Friday, that plaintiffs? attorneys do not “need to know” the information that Walker has “determined they do need to know.”

Months ago, the 9th U.S. Circuit Court of Appeals declined to override the judge. Until Walker directly orders the government to turn over the classified document to the plaintiff lawyers, the appeals court will not consider hearing the case, the government told Walker for the second time Friday.

Like it did two weeks ago, the government on Friday urged Walker to go ahead and order the release of the secret documents to the lawyers, so the Justice Department could appeal.

Walker is the same judge overseeing a class-action lawsuit targeting the nation?s telecommunication companies of being complicit in Bush?s once-secret spy program. Congress, with the vote of then-Sen. Barack Obama, legalized the spy program last summer.

That legislation allows electronic eavesdropping of Americans without obtaining a warrant if the subjects of the wiretap are communicating overseas with somebody believed connected to terrorism.

No such congressional authority was in place when lawyers Wendell Belew and Asim Gafoor?s telephone calls were intercepted in 2005. The United States had designated the Al-Haramain charity a terror organization.

The legislation authorizing the spy powers also immunized the telcos from being sued for their part in Bush?s eavesdropping program. Walker is entertaining a constitutional challenge to the immunity legislation.

Full post as published by Threat Level on May 30, 2009 (boomark / email).