In Critical NSA Case, Government Still Rests On State Secrets Claim

By Marc Ambinder
May 18 2009

Late Friday, the federal government signaled its intention to keep fighting for its right to prevent a judge from requiring that plaintiffs attorneys in Al-Haramain Islamic Foundation, Inc., et al. v. Obama, et al.case be given access to classified information. On April 17, Judge Vaughn Walker ordered the attorneys for the Al-Haramain charity and the government to design a mechanism for protecting classified information. (Background here: the government investigated whether the charity was a conduit for terrorist financing; inadvertently, the charity's lawyers received documents suggesting that the charity's phones had been tapped by the NSA; the charity is suing the government.)

The plaintiff's lawyers quickly sent a proposal to the Justice Department's lead attorney, Tony Coppilino. Late last week, Coppolino sent word that the administration still was not ready to comply with the judge's order.

As a result, the "joint filing" of 38 pages contains two parts.joint submission 5 15.pdf One is a comprehensive security program to protect classified information; the other is a repetition of the government's argument that it ought not be required to share highly classified information with the plaintiffs. Though the two Al-Haramain attorneys have been cleared to see "Top Secret/SCI" information, the government argues, based on an affidavit filed by the National Security Agency, that the lawyers don't have the requisite "need to know" about the specific intelligence in question here, which relates to the NSA's domestic collection program. "In the circumstances of this case, any disclosure of classified information to plaintiffs' counsel, even under seemingly secure terms and conditions, would abrogate the state secrets privilege, and thus none of the terms of the proposed order would be consistent with the law or sufficient to protect the Government's national security interests in the circumstances of this case," the government claims.

http://politics.theatlantic.com/2009/05/in_top_nsa_case_government_makes_the_same_arguments.php