As a case against President Bush for withholding documents about allegedly illegal wiretapping became a case against President Obama for withholding documents about allegedly illegal wiretapping, President Obama has once again assumed the same "state secrets" arguments as his predecessor. And a judge that rejected the argument under Bush yesterday rejected the argument under Obama.
In the case, Al-Haramain v. Obama, (formerly Al-Haramain v. Bush) the leaders of a now-defunct Islamic charity, allege that the National Security Agency under President Bush engaged in illegal warrantless wiretapping.
In 2004, while preparing to defend the charity — which had been placed on the government’s terrorist watch list — the charity’s lawyers accidentally obtained a document indicating the wiretapping had taken place.
The lawyers returned the document and have ever since been denied the ability to obtain it again to use it to show the charity had been allegedly illegally wiretapped.
The Bush administration had argued that the document could not be "disclosed without causing serious harm to national security," even if the plaintiff’s lawyers are given access to the document under secure conditions after extensive background checks.
U.S. District Chief Judge Vaughn Walker denied the Bush administration’s argument repeatedly. The Obama administration repeated the same "national security" argument in February, and yesterday Judge Walker said that the government "should now comply with the court’s orders" to hand over the documents.
Justice Department spokesman Matthew Miller says the department is "reviewing the judge’s order."
Despite opposing the Bush administration’s repeated use of the "state secrets" argument as a candidate, President Obama has shown a proclivity for making the argument himself since becoming president. It has tried to block a civil suit brought by detainees alleging a private company helped the U.S. government conduct extraordinary renditions, as well as a case against the NSA for allegedly illegal wiretapping.
Last month in Salon, one of Al-Haramain lawyers, Jon Eisenberg, wondered "Have Obama’s people really decided to continue traveling the Bush path of abusing the state secrets privilege — perhaps for reasons of political expediency — or do they just need more time to get up to speed on the Al-Haramain case before they start doing the right thing? We wait to see. And we wait to see how Judge Walker responds to these latest outrages by the Bush — oops, I mean the Obama — administration."