National Security: The Government Prepares A Move In Al-Haramain

Today, we were supposed to learn whether the administration was easing its absolutist stance on sharing classified information in civil cases. May 8 had been the deadline for the Justice Department to respond to a protective order drawn up by attorneys representing the Al-Haramain charity in Seattle.  The charity alleges that the government used the National Security Agency to illegally spy on its activities; the government believed that the charity had terrorist connections. Complex legal arguments ensued, but the court seems to be of a mind to press the government to fight the case on the grounds that the law allegedly broken -- the Foreign Intelligence Surveillance Act -- preempts any claim of state secrets privilege.

On April 17,  for what I believe was the fourth time, Judge Vaughn Walker ignored the government's contention that the executive branch's duty to safeguard classified information ought to be enough to kick the case out of court. Instead, he ordered the government and plaintiffs attorneys -- attorneys who have been cleared to see Top Secret and collateral information, known as SCI -- to find a way to protect the information so that it could be used in court but not revealed to the public. (By the way: the plaintiffs attorneys have already seen some of the classified evidence in question -- accidentally, it turns out -- and though the government was able to get the document classed as a "state secret," an appeals court later asked Walker to examine whether the plaintiffs could establish enough standing to pre-empt the privilege.)

The government asked for a three-week extension; the judge gave them one week. On April 24, Al-Haramain's lawyers presented a draft protective order to the lead government attorney, Tony Coppolino.

Then the broader world intervened in the form of a presidential news conference. Barack Obama said that the policy of his administration would be to find ways of "searching for ways to redact, to carve out certain cases" and for "a judge in chambers [to] review information without it being in open court."

That's exactly what the plaintiffs asked for in this case. Unfortunately, it's also what the government said would be impossible.

This isn't the Big state secrets case, capitalized "B" intended. We'll know within a month whether the government intends to appeal a ruling against its use of the privilege in the Jeppesen case.