By Kenneth J. Theisen
You have to give Obama’s Department of Justice (DOJ) credit for consistency. In every so-called “national security” case they have argued since Obama took office, they have defended the interests of the national security state over the rights of the people. They did it again on Friday, February 27, 2009.
The Al-Haramain Islamic Foundation had previously brought a suit alleging that the federal 
government, under George Bush, had illegally conducted surveillance of the group. The case is in federal court before Chief U.S. District Judge Vaughn Walker. (Walker has dozens of “national security” cases pending before him.) DOJ has maintained the case should be dismissed because the Foundation can not prove it was a target of surveillance without the use of a classified document.
government, under George Bush, had illegally conducted surveillance of the group. The case is in federal court before Chief U.S. District Judge Vaughn Walker. (Walker has dozens of “national security” cases pending before him.) DOJ has maintained the case should be dismissed because the Foundation can not prove it was a target of surveillance without the use of a classified document. On January 5, 2009, Judge Walker ordered DOJ to explain how it would let attorneys for the Foundation review the classified document in the case after the attorneys obtained security clearances, which he expected would be provided to the attorneys by the federal government. At that time, Walker stated that Al-Haramain had demonstrated through government officials’ statements that the Foundation had probably been wiretapped. This then put the burden on the government to let the plaintiff’s attorney examine the document. Walker ordered DOJ to provide the explanation to the court by February 27th.
Instead of complying with the federal judge’s order, DOJ defied him by withholding security clearances for the Al-Haramain lawyers. DOJ also filed an emergency request with the Ninth U.S. Circuit Court of Appeals to suspend the Al-Haramain case. In its legal arguments DOJ took the lead from the Bush regime by arguing that the lawsuit must be dismissed because letting it proceed could reveal secret information that would harm “national security.”
On February 27th the appellate court upheld Judge Walker’s January 5th order, stating that DOJ wasn’t entitled to appeal his ruling granting Al-Haramain’s lawyers access to the classified document. DOJ then responded by filing legal papers saying the court does not have the power "to order the government to grant counsel access to the classified information."
DOJ argued that the National Security Agency (NSA) had decided that Al-Haramain’s attorneys had no legitimate need for the document. In its legal papers, DOJ wrote, “The Government respectfully submits that Congress has not specifically provided authority, in Section 1806(f) or in any other statute, for courts to ignore the determination of the Executive Branch agency responsible for classified information, determine for themselves whether a person has a need to know such information, and thus grant access to classified information.” The DOJ arguments sound like the Bush regime’s claims made during Bush’s imperial presidency. During the Bush presidency, Bush officials consistently argued for the supremacy of the executive branch over the other branches of government, particularly in “national security” areas.
The classified document in dispute has an interesting history. Back in 2004, Al-Haramain was under investigation by the Bush regime for alleged terrorist ties. That investigation resulted in listing Al-Haramain as a terrorist organization. But while the investigation was underway, a government agency inadvertently sent the classified document to Al-Haramain. According to the plaintiff’s lawyers, the secret document purportedly shows that Al-Haramain had indeed been wiretapped. If so, this evidence establishes Al-Haramain’s right to legally challenge the surveillance and the court will be unlikely to dismiss the case. After the government discovered the mistake it demanded that the document be returned and Al-Haramain complied. Since then the federal government has taken the stand that the document can not be used to show that the government did conduct a spy operation against Al-Haramain. DOJ wants the court and the plaintiffs to ignore reality and to pretend the document never existed.
DOJ hopes that if it can “legally” make the document go away that they can also make the case go away by forcing Judge Walker to dismiss the case. It was bad enough that the Bush regime attempted to get the court to go along with this charade, but now the Obama administration is also trying to hoodwink the court and the public.
In responding to the Justice Department’s latest actions, Jon Eisenberg, one of the plaintiff’s attorneys, stated, “The government’s temerity in this case has never ceased to amaze me. What’s amazing is that this is the Obama administration now." But we should not be amazed that the DOJ, under Obama, acts like the DOJ, under Bush. Obama is now the commander-in-chief of the national security state. He owes his allegiance to those who rule the country and if that means trampling on the rights of the people, so be it.