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The Crumbling State Secrets Ploy

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In a striking reversal to the Bush Administration’s efforts to use the state secrets doctrine, left undisturbed by the Obama Administration, the Court of Appeals for the Ninth Circuit ruled today that a lawsuit challenging warrantless government surveillance could proceed. The Associated Press reports:

A federal appeals court in San Francisco on Friday rejected the Justice Department’s request for an emergency stay in a case involving a defunct Islamic charity. The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed. 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.”

Actually, there isn’t any serious issue as to whether the warrantless wiretapping program was legal. It wasn’t. It was a large-scale felony. The Bush Justice Department wasn’t even capable of articulating a case for it being lawful.

Normally the Justice Department prosecutes crimes. Under President Bush, however, cooking up schemes to commit large-scale crimes was a Department of Justice specialty, which raised the acute problem of what to do when you got caught. The answer came in a one-size-fits-all formulation: claim state secrets! In the Al-Haramain case, like a number of others, the state secrets doctrine was invoked not because of any actual state secrets—indeed the gig was up when documents about the unlawful surveillance were disclosed—but because the litigation, if it proceeded, would tend inevitably to show that Bush Administration engaged in systematic warrantless surveillance.

Now it’s time for the truth to out. And for the Justice Department to take the energy it put into fending off a legitimate civil suit into honest-to-goodness law enforcement. Like prosecuting the people who cooked up and implemented the warrantless surveillance scheme, including the conspirators at the Justice Department.

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