The Justice Department has filed an emergency stay motion at the 9th Circuit, asking it to freeze a district judge's order in a lawsuit challenging the legality of President Bush's warrantless surveillance program.
It is the second move in the 9th Circuit by Obama's Justice Department this month to continue shielding controversial Bush counterterrorism policies in such lawsuits. And it is likely to give a fresh push to Democratic legislation pending in Congress to circumscribe Obama's use of the "state secrets privilege" to withold government information.
"Disclosure of the material at issue here would cause exceptionally grave harm to the national security and result in irreparable injury to the United States," Justice Department lawyers wrote in their brief. The Obama administration's stance is all the more striking because the immediate question is whether the plaintiffs in the case can have access to classified material they have already seen.
U.S. District Judge Vaughn R. Walker ruled last year, in a case now known as Al-Haramain Islamic Foundation v. Obama, that the Foreign Intelligence Surveillance Act trumps the state secrets privilege, which Bush used to stymie the lawsuit challenging the legality of the surveillance.
What sets this lawsuit apart from others against what the Bush administration called the "Terrorist Surveillance Program," is that the plaintiffs saw a classified document accidentally shown to them by a Treasury Department official that they say proves they were surveilled under the program, run by the National Security Agency. The plaintiffs were ordered to return the document to the government. The Bush administration then successfully employed the state secrets privilege to keep the document out of the litigation.
But by January 5, the plaintiffs had shown Walker enough unclassified evidence that they were targeted by the NSA to convince him they had a right to proceed under FISA. He ordered the government to give him the "Sealed Document" for his private review. And he also ordered the government to process top-secret clearances for as many as three of the plaintiffs' attorneys, so they could read and respond to orders Walker might issue after he reviews the material.
According to the Justice Department, there is also a possibility Walker will show the actual material to the plaintiffs' attorneys. The purpose of the emergency stay motion is to block that from happening. But in its filing, the Justice Department made clear that it thinks Walker was wrong to rule that FISA displaced the state secrets privilege.
All in all, it's a lot of trouble for the Obama Justice Department to go to to block the release of information that was already accidentally disclosed, concerning a controversial Bush program that is no longer in existence.
On Feb. 9, the Justice Department maintained Bush's state secrets privilege defense in a 9th Circuit appeal of a case in which a group of people sued a company allegedly involved in the CIA "rendition" program of transferring suspected terrorists to other countries, allegedly to be tortured..
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