Wednesday, March 11, 2009

I told you so, Chapter Four

Just days later, the Obama White House again invoked the "state secrets privilege," this time in a suit filed by two former lawyers of the Al-Haramain Islamic Foundation, a now-defunct Muslim charity that was the target of government surveillance. The government had accidentally revealed - and then successfully demanded the return of - a document showing that the two had been illegally wiretapped. They sued and last summer the judge in the case, San Francisco District Court Judge Vaughn Walker - gasp! - refused to accept a claim of the state secrets privilege on the reasonable grounds that the White House could not use it to suppress evidence of its own criminality.

On January 5, he issued an order allowing the attorneys to view the document, which they need to prove standing to sue, but not to release it. At January 23 hearing on the order, Obama's DOJ argued for a stay pending an appeal, which Walker was disinclined to give. So the Obama team scurried, and on February 12, they filed an appeal, repeating the Shrub claim of state secrets.

On February 27, the appeals court refused to block the order - as a result of which, the "Everything is Different Now" White House told Walker that it was considering "withdraw[ing] that information from submission to the court and use in this case."

It seems no one is quite sure what that means and some have suggested the administration plans to physically seize the documents - or, more exactly, maintain physical control of them, as they are now
locked under the control of the Obama administration's Litigation Security Section of the Justice Department, according to the record in the case.
That is, they could physically prevent the judge from having access to them.
Douglas Kmiec, a Pepperdine School of Law constitutional scholar and President Ronald Reagan's chief attorney under the Office of Legal Counsel, said he has never heard of a lawsuit in which evidence ruled admissible was simply pulled from a case by the government. ...

Jonathan Turley, a George Washington University legal scholar, agrees with Kmiec. "I've never heard of a case where the government withdrew a document considered relevant without the court's permission."
It seems this may be another area that is open for "change."

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