1115.org

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First came Bushworld attempts to suppress public scrutiny of questionable decisions taken in the name of national security, most of which involved violence to the constitution and/or other laws of the land.

Then came multiple instances of the Obama administration’s full-throated support of these suppression attempts.

— Early in February we saw Obama’s Department of Justice support the Bush Department of Justice’s assertion of the state secrets privilege in an extraordinary rendition lawsuit.

— Late in February, we saw Obama’s Department of Justice support the “provision in a 2008 surveillance law that provides legal immunity to telecommunications companies that cooperated with the Bush administration’s warrantless surveillance program” with a view to dismissing “a raft of consolidated lawsuits challenging the legality of the warrantless surveillance”.

— In between, we had Obama’s Department of Justice endorsing a patently absurd Bushworld “proceedings would jeopardize national security” argument in another suit challenging the warrantless wiretapping program.

But Obama’s Department of Justice obviously got tired of just meekly supporting or endorsing Bushworld the-truth-must-be-buried-forever-at-all-costs tactics. Someone in Obama’s Department of Justice with a sense of pride must have asked themselves: “Surely we can do better? Surely we can out-Bush Bush?” The resounding “Yes!” they evidently came up with is making that last lawsuit curiouser and curiouser.

To recap, an Islamic charity called Al-Haramain had filed a lawsuit in San Francisco claiming that the government had illegally wiretapped their phone.

Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain’s case survives.

All the other lawsuits were dismissed because the plaintiffs could not prove that they had legal standing to sue: they could not prove that they had suffered under Bush’s order by being subjected to warrantless wiretapping, because all records were and are still secret.

Al-Haramain alone had some basis for claiming they were wiretapped under Bush’s order:

The government inadvertently sent the classified document to Al-Haramain in 2005. It reportedly showed that the now-defunct Islamic charity had been wiretapped before the government designated it a terrorist organization.

Al-Haramain returned the document at the request of the government, which then argued in court that without the document, the group could not prove it had been wiretapped.

Since then there has been an ongoing tussle between Al-Haramain and DOJ lawyers over whether Al-Haramain can be allowed to view (and then use in their lawsuit) this still-secret document, which has already been in their possession.

On January 5, Judge Vaughn Walker issued an order “to allow plaintiffs who say the government illegally wiretapped their phones to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit.”

On February 11, the Obama DOJ responded by reprising earlier Bush arguments, but in a particularly combative tone:

In papers filed Wednesday night, the new Justice Department asked a federal judge to suspend action on a suit challenging the wiretapping program, arguing that proceedings would jeopardize national security. Government lawyers also said the administration, not the courts, controls access to classified material at the heart of the case.

In combative tones, the lawyers told Chief U.S. District Judge Vaughn Walker that they would ask a federal appeals court to put the case on hold unless he acts by 3 p.m. today.

Judge Walker “tersely denied the Obama administration’s request”, but gave the DOJ till February 27 to comply with his order directing that the document in question be made available to Al-Haramain.

The DOJ, naturally, used the breathing room to file an emergency appeal of Judge Walker’s order. On February 27, the Ninth Circuit Court of Appeals rejected the appeal. And here’s what the DOJ then came back to Judge Walker with:

A heated confrontation is brewing between the Obama administration and the federal judiciary.

Late on Friday, the Justice Department’s lawyers filed a brief with a federal district court in California challenging the court’s power to carry out its own order. The government lawyers insisted that the court has no right to make available to the opposing lawyers in the case a classified document regarding the Bush administration’s warrantless wiretapping program, even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret security clearances, and the document would not be released publicly.

As TWI reported on Friday, the case of Al-Haramain v. Obama presents one of the first direct challenges by a victim of the Bush National Security Agency’s warrantless wiretapping program against government officials. But the government has argued vigorously to have the case dismissed, invoking the so-called “state secrets privilege” to refuse to turn over information about the program, and has refused to provide the organization’s lawyers use of a document that reportedly reveals that Al Haramain was one of the program’s victims. Although U.S. District Judge Vaughn Walker has repeatedly rejected the Justice Department’s argument, DOJ lawyers filed an emergency appeal; on Friday afternoon, the Ninth Circuit Court of Appeals rejected it.

So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”

Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court.

Realizing this, the Justice Department lawyers on Friday wrote: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”

In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.

“It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge Walker’s chambers to seize the classified material from his files!” wrote Jon Eisenberg, Al-Haramain’s lawyer, in an e-mail on Saturday. “In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.”
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The Obama administration “seems to be provoking a separation-of-powers confrontation with Judge Walker,” said Eisenberg.

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There are some more world-class absurdities here, as well:

Another interesting piece of the government’s filing on Friday – actually, its second filing, at 1:00 AM Eastern time – is that the government, which was supposed to report to the judge about which documents it will declassify, says that it won’t declassify anything. While that’s not a big surprise, the declassification report also says that its previous classified submission to the court contained an error – though it can’t say what that error was, because it’s classified. And, to support all this, the government filed four secret declarations by government officials — which no one but the judge is allowed to see.

“We’ve always suspected that the previous secret filings contained inaccuracies and maybe even outright lies, which is why we have been fighting so hard to see them,” said Eisenberg. “Now it seems we might have been right. Maybe, now that Judge Walker may be about to let us see them, the Government is worried that we’ll spot the lie, so they’re trying to ‘take it back.’ This is extremely weird.”

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Let’s also take a moment to appreciate just how truly absurd the Bush-Obama position on this lawsuit is.

According to the Federal government, Al-Haramain is a personification of The Enemy, a front for terrorist organizations. According to the Department of Justice, national security will be compromised if Judge Vaughn Walker gives Al-Haramain access to a document that has already been in their possession before, for an extended period, without any safeguards. If Al-Haramain are indeed the bad guys the Federal government believes, then copies of that document are already in the hands of terrorists. It is, prima facie, absurd to argue that national security would now be compromised if Al-Haramain is given permission to use in legal proceedings a document they have already had ample opportunity to photocopy and disseminate worldwide.

It’s not just absurd, it’s Lewis Caroll absurd.