SAN FRANCISCO – Setting the stage for a constitutional showdown, the Obama administration dared a federal judge here late Friday to do what no judge has yet done: disclose classified data the government has declared a national security state secret.

The administration urged (.pdf) U.S. District Judge Vaughn Walker to order such a disclosure in a 3-year-old lawsuit weighing whether a sitting U.S. president may bypass Congress and adopt a program of eavesdropping on Americans without warrants. Such an order, the administration said, could halt three years of convoluted litigation and force the appellate courts to weigh in on the hotly contested issue.

The classified data in question shows that telephone calls by two American lawyers for a now-defunct Saudi charity were intercepted by the government without warrants in 2004. Without the classified documents admitted as evidence in the case, the aggrieved lawyers for the al-Haramain charity, which the Bush administration designated as a terror group, cannot establish a legal basis to earn them a day in court.

The eavesdropping evidence in the Islamic charity's case came to light after the Treasury Department accidentally disclosed a classified document to the plaintiffs five years ago.

The evidence, which the Bush and Obama administrations have declared a state secret, has never been made public. Counsel for the charity lawyers returned the document to the government, but have continued fighting to use the document to challenge Bush's spy program, which was adopted in the wake of the 2001 terror attacks. Bush acknowledged the program in 2005, and Congress legalized it in July.

Judge Walker has ordered the government twice to work with the plaintiff's lawyers to craft a so-called "protective order" by which only the plaintiffs lawyers would have access to the document to enable the case to be litigated. There would be no public disclosure of the evidence.

Walker, in January and again in April, demanded the Justice Department, in conjunction with plaintiff's lawyers, to craft the protective order like those used to prosecute Guantanamo Bay detainees.

But Walker has never pulled the trigger and actually ordered the disclosure of the documents to the plaintiffs' lawyers in the case.

So in a court filing late Friday, the Obama administration again refused to cooperate in creating a protective order. Instead, the administration challenged Walker to go beyond a protective order and actually demand disclosure of the records.

That would commence the first constitutional showdown surrounding the disclosure of state secrets in a bid to get the 9th U.S. Circuit Court of Appeals to review Walker's decision.

Walker's earlier orders in the case have not been ripe enough for the San Francisco appellate court to review.

"Accordingly, the government respectfully requests that, before the court grants plaintiffs’ counsel access to state secrets, the court enter an order directing disclosure or otherwise provide adequate notice of any disclosure to enable the government to seek a stay and take an appeal," Anthony Coppolino, the Justice Department's special litigation counsel, wrote Judge Walker.

The state secrets defense was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Lawsuits in which national-security information may be divulged are always tossed by judges at the request of the government –- often by judges who never reviewed any classified data.

In this case, Walker reviewed the classified material and said the evidence pointed toward illegal spying.

A George H. W. Bush appointee, Walker has defied the government on state secrets before, but has never ordered the disclosure of evidence the government has declared classified.

He rejected the Bush administration's state secrets claim in lawsuits challenging the nation's telecommunication companies' complicity with Bush's once-secret electronic eavesdropping program. But Congress stepped in and immunized the telcos from the lawsuits.

With then-Sen. Barack Obama's vote in July, Congress also sanctioned Bush's spy program that authorized warrantless wiretapping on Americans if they are communicating overseas with suspected terrorists.

Walker is also weighing a challenge to that immunity legislation.

Jon Eisenberg, an attorney for the al-Haramain lawyers – Wendell Belew and Asim Gafoor – is urging Walker to disclose the information without the government's consent.

"For this case to resume forward progress, the court can simply adopt a protective order under which the court will afford plaintiffs access to the classified filings," Eisenberg wrote Walker late Friday.

But if Walker obliges Eisenberg, another constitutional crisis may surface. The Justice Department, in an earlier filing, suggested it may "withdraw" the documents at issue regardless of Walker's orders.

That’s because the al-Haramain Islamic Foundation material likely remains locked under the control of the Obama administration’s Litigation Security Section of the Justice Department, according to the record in the case.

Last month, the government acknowledged that, in 2005, it purposely destroyed 92 videotapes to cover up evidence of mistreatment of U.S. terror suspects — evidence the American Civil Liberties Union was trying to bring to light in a New York federal court lawsuit against the Defense Department.

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