Intellectual Property Law

SAN FRANCISCO -- The Obama administration urged a federal judge on Friday to stay enforcement of a ruling favoring the plaintiffs in a lawsuit challenging President George W. Bush's warrantless eavesdropping program.

Justice Department special counsel Anthony Coppolino told U.S. District Judge Vaughn Walker during a 60-minute hearing here that the appellate courts should review his Jan. 5 decision allowing classified evidence into the case, a position the Obama administration took in court documents the day before.

Without the classified evidence, Coppolino said, the government wins the case by default, and two American lawyers who claimed they were unlawfully spied upon can't pursue their lawsuit.

"If we are right about this, the case gets dismissed," Coppolino said.

But Judge Walker said he wanted more briefing on the matter. He refused to immediately stay enforcement of his order, which requires the government to allow the plaintiffs' attorneys, and the court, to review a highly-classified document that  purportedly shows that the lawyers for a now-defunct Saudi charity had their telephone conversations wiretapped without warrants n 2004.

The lawyers -- Wendell Belew and Asim Ghafoo - sued the Bush administration after the U.S. Treasury Department accidentally released the Top Secret memo to them, then successfully demanded its return. The memo was barred from the lawsuit through years of litigation, until Walker recently ordered the government to turn it over, after the plaintiffs successfully gathered unclassified evidence to support their case.

As it stands, lawyers for the plaintiffs are scheduled to view the document as early as Feb. 13.

The documents' use in the case is central for the two charity lawyers to acquire legal standing so they may challenge the constitutionality of  Bush administration's warrantless-eavesdropping program.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither Coppolino nor Walker responded to that point. Disputes with pretrial decisions generally require the trial judge to permit an appeal.

Walker noted that there were few grounds to allow an appeal partway through this case. But he said he would consider granting an appeal under a statute that allows judges to kick cases up to the appellate courts if a substantial question of law is at issue. In this case: can a document that the government has declared a state secret be allowed in a lawsuit?

"We believe that we have a successful privilege assertion in this case," said Coppolino, citing the "state secrets privilege", which, when invoked, generally results in a dismissal of lawsuits against the government.

Three years ago Walker allowed the government to appeal a decision in a different spy case under similar circumstances. The Electronic Frontier Foundation sued AT&T for allegedly being complicit in Bush's warrantless spy program.

In that case, too, the government asserted the state secrets privilege, saying the lawsuit should be dismissed because it threatens to harm national security.

The 9th U.S. Circuit Court of Appeals dismissed the appeal as moot last year after Congress, including  then-senator Barack Obama, voted to immunize the nation's telecoms from the lawsuit. In a separate vote, Obama opposed immunity, but he finally endorsed it as part of broad legislation legalizing the once-secret warrantless spy program.

Last month, the EFF asked Walker to overturn the immunity legislation. A decision by Walker is pending in that matter.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

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