Legal scholars, the blogopshere and the twitterati have been scratching their heads for a week following the Obama administration's assertion that it might "withdraw" (.pdf) classified documents at the center of a closely watched spy case.

Some are wondering whether the feds will use storm-trooper-like tactics to physically remove the data from the case. Others suggest the Obama administration's threats portend a constitutional showdown between the judicial and executive branches.

Yet strangely enough, the closest legal analogy seemingly pertains to the 1990s litigation surrounding Area 51, the once-secret military waste dump in the Nevada desert.

The spy lawsuit tests whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants. Bush acknowledged the spy program in 2005, and Congress ratified it in July.

The classified data the administration is threatening to withdraw from the spy case shows that the U.S. government eavesdropped without warrants on the 2004 telephone conversations of two lawyers for a now defunct Saudi charity called the al-Haramain Islamic Foundation that the United States had designated as a terror group.

Without the classified documents, the aggrieved lawyers cannot establish a legal basis to earn them a day in court.

The eavesdropping evidence in the al-Haramain case came to light after the Treasury Department accidentally disclosed it to the plaintiffs in the case. The evidence, which the Bush administration and Obama administration have declared a state secret, has never been made public.

The judge in the case, Vaughn Walker of the U.S. District Court in San Francisco, said its admission to the case does not mean it would become a public document. Last week, a federal appeals court sided with Walker's January 5 order.

Yet, would the Obama administration take a Gestapo-like approach and physically remove the documents without the blessing of the court, as many lawyers and non-lawyers alike have suggested? It's not completely without precedent, and the government could easily block the judge from accessing the documents.

That's because the al-Haramain material remains locked under the control of the Obama administration's Litigation Security Section of the Justice Department, according to the record (.pdf) in the case.

And days ago, the government acknowledged that, in 2005, it purposely destroyed 92 videotapes (.pdf) 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.

"How paranoid do you want to get? It's totally paranoid to say the government would destroy evidence, but look at what just happened with the CIA," said John Strait, a Seattle University constitutional scholar and expert on the Patriot Act. "The thrust of the Obama administration's argument in al-Haramain is the executive branch controls access to any information that falls within the state-secrets exemption. Therefore, they can do anything they want to pull it out of the case. What they're saying is they get to decide as the executive branch and the court cannot interfere."

The Justice Department declined comment.

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. Generally, lawsuits in which national-security information may be divulged are usually tossed by judges at the request of the government –- often by judges who never reviewed any classified data.

Walker is believed to be the only judge not to acquiesce to the government's invocation of the privilege. The Bush administration invoked the privilege at least 39 times whereas all other administrations have done so about 16 times.

In the al-Haramain case, the flames of storm-trooping paranoia began whipping about the morning after the Obama administration told Walker on Feb. 27 that it was considering to "withdraw that information from submission to the court and use in this case."

Jon Eisenberg, the California lawyer for the two attorneys in the case, sent out e-mails to those following the lawsuit, saying:

That's just astounding! It's a not-so-thinly-veiled threat to send Executive Branch authorities (the FBI? the Army?) to Judge Walker's chambers to seize the classified material from his files! In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.

In an interview, Eisenberg said he read the administration's words "to mean they are going to take back the documents."

Douglas Kmiec, a Pepperdine School of Law constitutional scholar and President Ronald Reagan's chief attorney under the Office of Legal Counsel, said he has never heard of a lawsuit in which evidence ruled admissible was simply pulled from a case by the government.

"To say there is a body of law that gives good, certain and sufficient guidance on this is to indulge a fabrication," Kmiec said. "The state secrets privilege is as large as the universe at the moment. It's in great need of study and re-examination for purposes of anchoring genuine claims of national security."

Jonathan Turley, a George Washington University legal scholar, agrees with Kmiec. "I've never heard of a case where the government withdrew a document considered relevant without the court's permission."

Such a proposition, he said, "is admittedly a gray area."

Turley, meanwhile, is trying to acquire classified data to learn whether his client, Ali al-Timimi, an Islamic cleric convicted of supporting terror, was illegally spied upon in the United States as part of a bid to win a new trial. Citing a gag order, Turley declined to discuss the al-Timimi case.

But Turley said litigation in the 1990s he was involved in over Area 51 might provide limited legal guidance in the al-Haramain case.

"We had a huge fight over a manual we submitted to the court to prove the existence and presence of hazardous waste," Turley said. "After we submitted it, the government classified it and we were prevented from using it."

The 9th U.S. Circuit Court of Appeals, he said, "upheld their right to classify the document."

Despite the storm trooper fantasy, Threat Level suspects the Supreme Court is likely to intervene and resolve the dispute. All of which means a president's power to bypass Congress and secretly eavesdrop on Americans without warrants remains, admittedly, a gray area.

Photo: brcake

See Also: