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A federal appeals court rejects the Obama administration’s assertion that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. The Justice Department had requested an emergency stay in a case brought by a defunct Islamic charity, the Al Haramain Islamic Foundation (see February 28, 2006). Al Haramain has asked that classified information be made available to the court to prove its case that the electronic surveillance brought to bear against it by the government was illegal; Justice Department lawyers contend that the information needs to remain classified and unavailable to the court, and cite the “state secrets” privilege (see March 9, 1953) as legal justification. Although the court rejects the request for the stay, Justice Department lawyers say they will continue fighting to keep the information secret. “The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” says a filing made by the Justice Department in regards to the ruling. A lawyer for Al Haramain, Steven Goldberg, says: “All we wanted was our day in court and it looks like we’re finally going to get our day in court. This case is all about challenging an assertion of power by the executive branch which is extraordinary.” The American Civil Liberties Union’s Ann Brick says the court has now crafted a way to review the issue in which “national security isn’t put at risk, but the rule of law can still be observed.” (Barrett 2/27/2009) Days later, the Justice Department will file a brief announcing its intention to refuse to honor the appeals court’s decision (see March 2, 2009).
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