After campaigning against this secrecy Obama now supports it. Another example of new beginnings that are beginning to look like old style politics.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/02/12/BA8615T51C.DTL&type=politics&tsp=1
Obama administration goes to bat for secrecy Bob Egelko, Chronicle Staff Writer
Friday, February 13, 2009
(02-12) 18:16 PST SAN FRANCISCO -- For the second time this week, the Obama administration has gone to court in San Francisco to argue for secrecy in defending a terrorism policy crafted under George W. Bush - in this case, wiretapping that President Obama denounced as a candidate.
-------------------------------------------------------------------------------- In papers filed Wednesday night, the new Justice Department asked a federal judge to suspend action on a suit challenging the wiretapping program, arguing that proceedings would jeopardize national security. Government lawyers also said the administration, not the courts, controls access to classified material at the heart of the case.
In combative tones, the lawyers told Chief U.S. District Judge Vaughn Walker that they would ask a federal appeals court to put the case on hold unless he acts by 3 p.m. today.
The dispute involves Walker's Jan. 5 order to allow plaintiffs who say the government illegally wiretapped their phones to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit. Lawyers for the Obama administration say the judge's decision "presents a clear-cut conflict between the court and the executive branch."
Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do.' "
The government inadvertently sent the classified document to Al-Haramain in 2005. It reportedly showed that the now-defunct Islamic charity had been wiretapped before the government designated it a terrorist organization.
Al-Haramain returned the document at the request of the government, which then argued in court that without the document, the group could not prove it had been wiretapped.
Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.
Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech. His future attorney general, Eric Holder, said in June 2008 that Bush had defied federal law by authorizing the program.
The new Justice Department filing, which elaborated on arguments by the same lawyers under the Bush administration, addressed only the need to freeze the lawsuit and keep information secret and did not discuss the legality of the surveillance program. But if the department's position is upheld, Al-Haramain's suit will be dismissed.
Department spokesman Charles Miller confirmed that the brief represented the views of the new administration and its attorney general.
On Monday, a Justice Department lawyer told the Ninth U.S. Circuit Court of Appeals in San Francisco that the Obama administration endorsed a Bush argument that a suit over the CIA's rendition program endangers state secrets and should be dismissed. The five plaintiffs in that suit say a San Jose subsidiary of Jeppesen Dataplan, a flight-planning company, helped the CIA transport them to foreign nations for torture.
In Al-Haramain's case, the appeals court ruled last year that the organization could not use any information it had seen in the classified document to prove it had been wiretapped. But Walker, an appointee of former President George H.W. Bush, said in his Jan. 5 ruling that the Islamic organization had presented enough evidence from public statements to show that it had probably been a target of the surveillance program.
The judge said he would examine the document in private, then make it available to Al-Haramain lawyers with security clearances so they could oppose dismissal.
The Justice Department contends Walker was wrong on two counts: that the material can be safely disclosed, even in private, and that an alleged surveillance victim can sue without government acknowledgement that wiretapping occurred. The department asked Walker to put the case on hold while it asks the court to consider those issues.
Failing to do so could cause "grave harm to national security," the lawyers wrote.
Eisenberg, Al-Haramain's lawyer, said the filing was "disappointing to a great many people who have had much hope for change."
E-mail Bob Egelko at begelko at sfchronicle.com.
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