For the second time in his short presidency, Barack Obama's lawyers have invoked the 'state secrets privilege' to contain the disclosure of information in a case about U.S. intelligence activities. You'll remember the case -- the al-Haramain Charity Foundation was accused by the government of aiding terrorists. The government blundered in the discovery phase of the case, sending the charity's lawyers a document that seemed to indicate that the FBI derived some of its evidence from the National Security Agency's domestic wiretapping program. The charity is now suing the government. The government wants a judge to throw out the case on the grounds that the government shouldn't be forced to divulge classified information in a civil case and argued that the judge has no authority to force the government to disclose such information to defense attorneys. As the Washington Post points out, the State Secrets Privilege Act -- a version of which Vice President Joe Biden supported as a senator --would obviate the need for legal wrangling in this case, as specially-cleared federal judges would be granted the power to examine the classified evidence and determine independently whether the material justifies the privilege claim. At issue here is not the classified information itself. Multiple published accounts of the NSA program strongly suggest that the NSA information was given regularly to the FBI -- the wheat and the chaff -- and that domestic phone calls between American citizens with only a tangential connection to terrorism were routinely monitored. I've written before that civil libertarians overread Obama's campaign promises, and I still think that's true, to some extent. Abstract or concrete justice for those wronged by the Bush Administration's legal errors/sins of commissions is much less important to the Obama administration than the correct application of the rule of law in the present. They seem to be worried that any concession to the principle of disclosure in these cases would jeopardize information that is and ought to be properly protected. This isn't an easy explanation to swallow, but it's the one the administration has settled on.
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