http://politics.theatlantic.com/2009/04/court_rejects_states_secrets_privilege_for_nsacharity_case.phpApr 17 2009, 6:49 pm by Marc Ambinder
Judge Skeptical Of State Secrets Privilege For NSA/Charity Case
The Obama administration suffered a bit of a legal setback this afternoon: a federal judge in California rejected the administration's assertion of the state secrets privilege in the civil suit brought by an Islamic charity that was allegedly subjected to illegal NSA surveillance. The order, in Al-Haramain v. Bush, requires the government to come up with a way to safeguard the classified information it plans to present in the NSA's defense by May 8. Judge Vaughn Walker noted that the government has elsewhere made provisions for the discussion of Top Secret/SCI information. It so happens that the plaintiffs attorneys have been cleared to that level. Walker crafted his order narrowly to prevent the government from appealing it immediately to the Ninth Circuit. On May 8, it will be interesting to see whether the administration presents a plan for safeguarding classified info -- or whether it re-asserts the state secrets privilege.
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http://tpmmuckraker.talkingpointsmemo.com/2009/04/yesterday_we_told_you_about.phpNot Just State Secrets: Obama Continuing Bush's Stonewalling On Gitmo Cases, Lawyer Claims
By Zachary Roth - April 10, 2009, 3:43PM
Yesterday we told you about the Obama Justice Department's invocation of a sweeping state secrets privilege in a warrantless wiretapping case. But that may not be the only area in which the new administration's war on terror tactics recall the worst excesses of the Bush years.
SNIP
Cynamon detailed three specific areas in which the government is stonewalling. First, he said, it has taken an unduly long time to produce declassified evidence. Indeed, in February, Judge Colleen Kollar-Kotelly ordered one government lawyer removed from the case for failing to comply with repeated orders to make the evidence available. In a court document, the judge wrote that the lawyer's "compliance was not optional," and added that the court "has serious concern about counsel's ability to read and comprehend its orders."
Second, Cynamon said the government is resisting requests for discovery, slowing things down by forcing defense lawyers to go to court at each stage. "Across the board they basically say no," he said. "It's whatever bullshit excuse - 'it's too burdensome, its not relevant, its beyond the narrow...."
But the government's "most egregious" stonewalling tactic, said Cynamon, parallels the misconduct famously displayed by the prosecutors in the Ted Stevens case: It has consistently failed to produce exculpatory evidence in its possession, as it is legally required to do. "They have completely, in my view, ignored that obligation," said Cynamon. "We have come across a number of items of exculpatory evidence that the government should have given us and didn't."
For instance, said Cynamon, one his clients had military commission charges issued against him, and as a result was appointed a military defense counsel, who has access to a secure government database. The defense counsel, Cynamon explained, "fairly quickly and fairly easily found some documents on that secure database that were very helpful and exculpatory and helpful to our clients...that should have been produced to us in our case."
Cynamon said that Obama should be given credit for his pledge to close Guantanamo within a year. But he said that doesn't address the core issue. "The fundamental problem is that there has been a complete abandonment of the rule of law and a denial of the most basic due process, which is: 'If you get thrown in jail, you ought to have the right to have an independent judge look at the basis on which you're in jail to decide whether you should be there,'" he said. "And closing Guantanamo doesn't address that, if they just end up getting transferred to prisons in other places."
SNIP
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http://www.nytimes.com/2009/02/10/us/10torture.htmlObama Backs Off a Reversal on Secrets
By JOHN SCHWARTZ
Published: February 9, 2009
SAN FRANCISCO — In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
That produced an angry response from Anthony D. Romero, executive director of the American Civil Liberties Union, which is representing the plaintiffs. “This is not change,” he said in a statement. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
SNIP - MORE AT LINKS
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