OPEN GOVERNMENT -- The Associated Press reports that the Obama administration has lost its argument, echoing the Bush Justice Department's position, for a state secrets privilege terminating a lawsuit challenging the government's warrantless wiretapping program. A federal appeals court in San Francisco today rejected the department's request for an emergency stay in the case involving warrantless surveillance of a defunct Islamic charity. (Case documents here)
Now, civil libertarians hope the case will become the first chance for a court to rule on whether the warrantless wiretapping program was legal or not. It cited the so-called state secrets privilege as a defense against the lawsuit.
"All we wanted was our day in court and it looks like we're finally going to get our day in court," said Al-Haramain's lawyer, Steven Goldberg. "This case is all about challenging an assertion of power by the executive branch which is extraordinary."
A Justice Department spokesman declined to comment.
The decision by the three-judge appeals panel is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.
Earlier this month, Attorney General Eric Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.
Yet even as that review continues, the administration has invoked the privilege in several different cases, including Al-Haramain.