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OpEdNews Op Eds    H2'ed 4/3/10

Al Haramain: Waiting for the Other Shoe to Drop

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"With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times' revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it."

Daphne Eviatar of Human Rights First:

"The Al Haramain case is a great example of why courts shouldn't simply accept the government's claims that turning over information about possible government lawbreaking will endanger state secrets. Judge Walker was able to adjudicate this case without jeopardizing national security in any way.

"At the same time, this case underscores why Congress needs to pass a new law that prevents the government from seeking to dismiss these sorts of cases on "state secrets" grounds. The Obama administration insists that its new procedures for invoking the state secrets privilege are an adequate protection against its abuse. But in this case, the Justice Department once again tried to use the privilege to have a case dismissed that charged that the government had engaged in illegal conduct.

"Judge Walker has just affirmed that the government did indeed break the law by wiretapping an Islamic charity and its lawyers without a warrant. Unfortunately, many judges in other cases have simply accepted the government's 'state secrets' claims without question. Only by passing a new law narrowing the government's ability to invoke the state secrets privilege to dismiss a lawsuit can we be sure that the government isn't using the claim of "state secrets" to shield itself from liability for breaking the law."

Prof. Peter Shane of Ohio State University law school:

"The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims. News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.

"An equally important detail, however, is that the Court of Appeals had actually engaged in a confidential review of the classified document asserted to be privileged, and upheld the Government's right to protect the document only after judicial inspection of its contents. This strongly supports the notion that a properly circumscribed state secrets privilege can co-exist with the added protection of judicial review, and that it may be possible to allow national security cases to go forward in certain circumstances without compromising intelligence sources and methods."

Scott Horton, civil rights attorney, lecturer at Columbia University law school and contributing editor to Harper's Magazine:

"The Justice Department has loudly touted its new standards for the invocation of state secrets, in which a large number of high-level employees are involved before a decision is taken to claim it. That's fine and good, but it's strictly a matter of internal administration. And experience with Justice shows that their practice is quite simple: when in doubt claim state secrets.

"When a case will be embarrassing to Justice, claim state secrets to prevent embarrassment. And when a case will implicate the Justice Department in criminal conduct--by all means, claim state secrets. The Al-Haramain case shows, beyond any doubt, that state secrets was invoked to avoid disclosure of official government criminality, which is absolutely forbidden--a point that even Justice acknowledges.

"There is no discernible difference between the Bush and Obama Justice Departments on this point (and I would add that the conduct of the Obama Justice Department cannot be squared with official statements of policy made by President Obama, which suggests that it is still in some measure a rogue Justice Department).

"The Al-Haramain case reflects growing, and appropriate, judicial skepticism about the use of state secrets, and a growing recognition that Justice has made false or at least very tendentious statements to courts in connection with its invocation of state secrets. It also shows that courts can get around state secrets by precluding the use of classified information and instead deciding the matter entirely on the basis of what is not and cannot be classified. And it shows the courts drawing absolutely appropriate adverse inferences from the Justice Department's obsessive use of secrecy. It's a landmark case, and future litigants can find a road map to suing the government over illegal surveillance in it."

And finally, there's Jon Eisenberg, one of the lawyers in the case. Eisenberg says his law firm has done little else in the past four years than attempt to litigate the al Haramain case. He says he has spent much of that time "suspended between rage and disbelief."

He said he could not understand why President Obama seemed "so determined to morph into former president George W. Bush."

He speculated: Perhaps it was believing that he would need Republican votes to complete his legislative agenda and not wishing to alienate the opposition party. Perhaps he did not want to be the chief executive remembered for rolling back executive power. Maybe he believes that taking any other course would leave him and his party vulnerable to charges of being 'soft on terrorism'.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)
 
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