Obama lawyers employ “state secrets” clause again, despite assurances for openness

Judge Walker

Judge Walker

By JOSEPH FITSANAKIS| intelNews.org |
Last week, US Justice Department officials employed a “state secrets” clause previously used by the Bush Administration, to block a lawsuit against CIA’s extraordinary rendition program. The move surprised many observers, as only days earlier the new US Attorney General, Eric H. Holder, had ordered “a review of all claims of state secrets used to block lawsuits” in an attempt to stop hiding “from the American people information about their government’s actions that they have a right to know”. Remarkably, last Friday the Obama Administration tried using the same “state secrets” clause again, this time to prevent a lawsuit filed by a now defunct Islamic charity against the Bush Administration’s post-9/11 warrantless wiretapping scheme. The Saudi-based charity, Al-Haramain, was taken to court in September 2004 by the US government, which accused it of maintaining terrorist links. Since that time, Al-Haramain executives had suspected their telephones were tapped under the Bush Administration’s warrantless wiretapping program. Their suspicions were confirmed last July, when US government prosecutors mistakenly gave the charity’s legal team a classified document showing that the FBI had indeed tapped the group’s office phones. The group’s legal team used the classified document as a basis to sue the Bush Administration, claiming that warrantless wiretapping violated the 1978 Foreign Intelligence Surveillance Act (FISA). The Bush Administration responded by writing to Judge Walker on the day before Barack Obama’s inauguration, asking him to reject Al-Haramain’s lawsuit on “state secrets” grounds. Interestingly, the new Obama Administration seconded the previous Administration’s argument by sending judge Walker a letter (.pdf), warning him that proceeding with the case could cause “grave harm to national security”. On February 13, however, Judge Walker rejected (.pdf) the Administration’s “state secrets” claim and ordered the government’s attorneys to proceed with the case. Moreover, the Obama legal team’s insistence on utilizing the “state secrets” clause has angered several progressive lawmakers, who have now decided to take matters into their own hands by reintroducing the State Secrets Protection Act in both houses of Congress. If passed, the legislation would “require courts to exercise more scrutiny of secrecy claims” made by the US government. Meanwhile, the government’s lawyers are preparing to fight the Al-Haramain lawsuit in court, beginning on February 27.

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Expert news and commentary on intelligence, espionage, spies and spying, by Dr. Joseph Fitsanakis and Ian Allen.

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