Terror Law Secrecy Lifts, Once, By Mistake
The story of the Al-Haramain Islamic Foundation, and the court decision it spawned Friday, should read like a feel-good tale about how the courts finally were allowed to play an important and respectable role in determining the level of secrecy the White House can maintain in its war on terrorism. It should be the sort of story many of us have been waiting to hear since the White House began its unprecedented expansion of presidential power following the terror attacks upon America.
The problem is that the "cooperation" came about as a result of an inexcusable mistake by another executive branch office, the G-men were forced to share classified information with the courts, and no federal judge in the country should expect such collaboration ever again. It's the exception, not the rule, and that's truly a shame.
Last week, the 9th U.S. Circuit Court of Appeals helped along, for a little while longer, a lawsuit by the foundation that challenges the government's power to eavesdrop without a warrant. The judges ruled that the Foreign Surveillance Intelligence Act might trump the "state secrets" doctrine that the White House has repeatedly used to block challenges to its power. The case now goes back to the trial court for further fact-finding and such.
The ruling is not all bleak for the feds. The judges -- all Democrat appointees, by the way -- prohibited the plaintiffs from using a "Top Secret" document that had inadvertently been transferred to them by the Treasury Department. It was the so-called "smoking gun" that helped prove the foundation's allegations that it had been the target of illegal wiretapping. The trial judge had tried to split the baby: refusing to allow the document itself into evidence, but allowing foundation lawyers to testify about their memories of it. The federal appeals court judges said no. No document. No recollections of it. Thus did the judiciary spare the executive from further embarrassment.
Now, the optimist in me looks at this scenario and says: Sure, the Justices ultimately may decide that the Foreign Surveillance Intelligence Act does not preclude the Justice Department from asserting the "state secrets" defense to block discovery in terror-law trials. But if the Supreme Court does, it will only be after many judges review the "secret" material to determine the legitimacy of the executive branch claim. That's a level of oversight with which I am comfortable.
But the pessimist in me says that the only reason the judges were given the opportunity to conduct their private (in camera) review of the "top secret" document was because the defendants already had seen it. I feel fairly comfortable assuming that, had the document not been turned over to the Foundation (which to its credit promptly gave it back), the Justice Department would have argued that the trial judge was not even entitled to review the document over which the "state secrets" doctrine had been asserted. That's just the way it's been in the Battle of the Branches since Sept. 11: "We can't really tell you why we must keep this information secret, Mr. Judge, but trust us, we're the government."
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