What State Secrets Lurk in Unresolved NSA - FISA Wiretap Case Showdown Between White House, Courts and Congress?

A BUZZFLASH NEWS ALERT
by Christine Bowman

There actually may be no more secrets in this ongoing case -- but there's serious wrangling between the branches of government.

The Washington Post and the website Wired have noted in recent headlines that a "showdown" could come as soon as Friday over claims of state secrets being made in court cases where government wrong-doing or cover-ups in the "war on terror" are suspected. The legal face-off pits government lawyers, now representing President Barack Obama's Executive Branch, against an increasingly impatient, Reagan-nominated, GHW Bush-appointed judge in California -- Vaughn R. Walker. The Senate, too, is poised to join the fray.

Although at this point it is a fight over use of the state-secrets privilege, originally the case before Judge Walker challenged the legality of the National Security Agency's (NSA) wiretapping of phone calls in secret and without FISA court approval as a tactic in fighting the "war on terror." In this instance, the NSA monitored phone calls between lawyers and their client, the director of a now defunct Islamic charity suspected of having ties with al Qaeda -- the al-Haramein Islamic Foundation. The case involves surveillance of what were probably "privileged" conversations between U.S. lawyers and their client. Early in the case, the government, in apparent sloppiness, let the wiretap transcripts be seen by the al-Haramein attorneys, who then alleged that there can be no "state secrets" claim since the wiretap contents were already made known.

What's going on now? The judge has given the Department of Justice a deadline of Friday, May 29 to respond in writing about their readiness to move the case forward. He also told attorneys for both sides to appear at a hearing on Wednesday, June 3. With the case already stalled for five years, defense attorney Jon Eisenberg is calling the current move "Judge Walker's enough-is-enough order."

Citizens who care about the Constitutional fight or who are trying to assess whether the Obama Administration will change course or, like their predecessors, play the "state secrets" trump card freely, should monitor the news closely in the coming days.

Elements of the story include:

• The State-Secrets Privilege
• Chief U.S. District Judge Vaughn R. Walker, Northern District of California
• The al-Haramein Islamic Foundation
• American attorneys Wendell Belew and Asim Gafoor
• FISA
• Reynolds 53 (the legal basis for state-secrets privilege claims)
• Attorney Jon B. Eisenberg
• A judge threatening to award monetary damages to an organization that was placed on a terrorists list

What else?

In a related development in the Legislative Branch, Senator and Judiciary Committee Chairman Patrick Leahy (D, VT) has scheduled discussion of a proposed "State Secrets Protection Act" for next week, June 4, in a committee hearing meeting. The bill was drafted but not voted on by the previous Congress, and it is sponsored now by:

• Sen. Edward Kennedy [D, MA]
• Sen. Joseph Biden [D, DE]
• Sen. Hillary Clinton [D, NY]
• Sen. Christopher Dodd [D, CT]
• Sen. Russell Feingold [D, WI]
• Sen. Patrick Leahy [D, VT]
• Sen. Claire McCaskill [D, MO]
• Sen. Robert Menéndez [D, NJ]
• Sen. Charles Schumer [D, NY]
• Sen. Arlen Specter [D, PA]
• Sen. Jon Tester [D, MT]
• Sen. Jim Webb [D, VA]
• Sen. Sheldon Whitehouse [D, RI]

When first introducing the bill in early 2008, Senator Leahy stated:

Over the past seven years, the Bush administration has aggressively sought to expand executive power in alarming ways.  Public accountability has been repeatedly frustrated because so many of the administration’s actions have been cloaked in secrecy.  Time and again, the administration has fought tooth and nail to prevent the American people and Congress from having information about its policies and practices.

Before long, as the three-way Constitutional "showdown" on state secrets plays out, it should become clear whether Executive Branch spies, a California judge, or the Senate will succeed in defining the terms for future state secrets claims.

A BUZZFLASH NEWS ALERT