Analysis: Secrets and “need to know”

By Lyle Denniston
on May 30, 2009 at 11:05 am

Analysis

NOTE: Nearly a quarter-century ago, in Navy Department v. Egan, the Supreme Court ruled that the President has broad constitutional power — even apart from any grant of power by Congress — to decide who gets access to classified secrets.  The Obama Administration, continuing efforts begun in the Bush Administration, has been maneuvering toward a new test — very likely aiming at the Supreme Court — of the authority to decide who has a “need to know” secret data.  A filing late Friday night before a federal judge in California intensified that effort.

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The Justice Department, facing an impatient federal judge’s threat to rule summarily that the federal government has engaged in illegal electronic wiretrapping on a Muslim organization within the U.S., asked the judge Friday night to issue a direct order to disclose secret data over the government’s objections that would then set the stage for an appeal on issues “of extraordinary constitutional significance.”

Among those issues is whether a court has any authority to order disclosure of “state secrets” for use by a private party in a damages lawsuit, whether a law allowing such damages lawsuits overrides the government’s claim of a “state secrets” privilege against disclosing classified information, and whether a judge, not the government, can decide what a private party “needs to know” from secret government data for use in a lawsuit.

Although it failed in February to get permission to appeal, the Department renewed that plea as a way to avoid court-imposed sanctions that federal officials regard to be severe and a deep intrusion on Executive power.  In a 28-page response to the threat of sanctions by U.S. District Judge Vaughn R. Walker of San Francisco, the government contended that the judge has no authority to issue any punishment at this stage.  In any event, it said, the government should not be penalized before it has a chance to appeal to defend its control on access to classified information.

The filing came in Al-Haramain Islamic Foundation, et al., v. Obama, et al. — a case now in its fourth year — involving a claim that the federal government engaged in illegal electronic eavesdropping on the Foundation and its officials.  Al-Haramain is a Muslim group that insists it is a charity, but that the U.S. government has labeled a terrorist organization with links to Al-Qaeda.  The eavesdropping allegedly was aimed at its actvities at a branch in Ashland, Ore.  (The case is in U.S. District Court in Northern California, docket 07-109.)

At an earlier stage, a secret document indicating that Al-Haramain was, in fact, the target of electronic eavesdropping was disclosed by mistake to lawyers for the group. But that has since been pulled back, and the courts have ruled that it cannot be used to advance the lawsuit seeking damages for the surveillance.

Judge Walker, however, has been attempting to work out arrangements so that Al-Haramain’s lawyers could have some access to classified data as they seek to prove their case.  On May 22, clearly showing his discontent with what he considered the government’s resistance, Walker told the government to tell him  — by Friday — why he should not rule, without any further proceedings, that the government did eavesdrop illegally, and move on to assess how high a damage award should be. 

The Department’s new filing was its response.  Earlier Friday evening, Al-Haramain’s lawyers, in their own new filing, asked the judge to go ahead and award the group a default judgment and assess damages.  They said they would prefer a full-scale decision that the goverment’s “warrantless electronic surveillance program” begun by the Bush Administration was illegal, but would settle for a ruling in their favor that would set no legal precedent.

“The American people,” the lawyers wrote, “deserve a decision by this Court resolving the extraordinarily important issues presented in this case.”

The Justice Department’s response, however, insisted that Judge Walker has yet to issue any direct orders that the government has violated, so he cannot impose any penalties.  So, it first asked that the judge reconsider his earlier refusal to allow an appeal on the basic issues involved.

The Department, it said, “respectfully urges the Court to pursue a way forward that balances the inerests of all sides by allowing appellate review of the significant questions at hand before the government’s [state secrets] privilege assertion is negated.”

If Walker is not willing to reconsider his refusal to permit an appeal, it said, he should “issue an order over the government’s objection concerning the disclosure of classified information” to Al-Haramain’s lawyers so that an appeal would then be open to the government.

“This is not an ordinary discovery dispute in an ordinary case,” it argued.  “It concerns information that our nation’s highest officials have determined must be protected, and these officials have submitted lengthy explanations for their reasoning.”

Earlier in the case, the Ninth Circuit Court upheld the government’s claim of a “state secrets privilege” not to disclose classified information to Al-Haramain’s lawyers.  Since then, however, Judge Walker has ruled that the federal law allowing damage lawsuits by targets of illegal government eavesdropping displaces the “state secrets privilege.” (The law allowing such lawsuits is the Foreign Intelligence Surveillance Act, 50 U.S.C 1810.)

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