Obama Justice Department Continues Bush's 'State Secrets' Argument...Again


Jake Tapper and Jason Ryan
May 30, 2009 10:09 PM

In a court filing submitted in the middle of the night, President Obama's Justice Department is continuing the "state secrets" argument of his predecessor in litigation over the National Security Agency's Terrorist Surveillance Program.

The al-Haramain Islamic Foundation, investigated for terrorist financing out of its Oregon offices, sued the government alleging it was targeted under the NSA's warrantless wiretapping program.

In the middle of the night the Justice Department filed its response in the court case, telling a federal judge, who has ordered it to disclose information in the case, that Justice is still asserting the state secrets privilege.

"The Government must continue to oppose the disclosure of state secrets in any further proceedings," the Justice Department wrote.

The judge has said he will institute sanctions against the Justice Department for not complying with the court's orders.

"The Government has merely declined voluntarily to agree to a protective order that would, in the Government's view, require disclosures that would irretrievably compromise important national security interests," the Justice Department filing said.

"The Government recognizes that the underlying dispute in this case raises the fundamental separation-of-powers question concerning whether the Court has the ultimate authority under the Foreign Intelligence Surveillance Act (FISA) to order the disclosure of state secrets to a private party over the Government’s objection."

The Justice Department wrote that "this is not an ordinary discovery dispute in an ordinary case. It concerns information that our nation’s highest officials have determined must be protected."

We've looked before at the President's frequent invocation of the "State Secrets" argument despite the pledge on the Obama-Biden campaign Web site where "The Problem" is described in part as the Bush administration having "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court."

Justice Department spokeswoman Tracy Schmaler said in a statement that the Obama administration "recognizes that invoking the states secret privilege is a significant step that should be taken only when absolutely necessary. In keeping with the administration’s commitment to transparency, the President just this week announced the formation of an interagency task force to be headed by the Attorney General and the Secretary of the Department of Homeland Security to review procedures for labeling and sharing sensitive information to ensure that the needs of law enforcement, privacy and civil liberties strike the proper balance. At the same time, the Justice Department has been reviewing the state secrets on a case by case basis and hopes to make the results of that review public."