Intellectual Property Law

The Obama administration on Thursday invoked the state secrets privilege for the second time in a week, this time in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

The move came days after U.S. Attorney General Eric Holder announced the department was reviewing all the litigation it inherited from the Bush administration in which the privilege was invoked.

Also this week, the Justice Department invoked the privilege before a federal appeals court to scuttle a case brought by five U.S. prisoners who claim the CIA was behind their kidnapping, which brought them overseas where they claim they were tortured. 

The litigation tactics underscore that, while the Obama administration has denounced many of the policies of the Bush administration, it has so-far not changed litigation tactics in defending lawsuits challenging those policies.

The state secrets privilege 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.

The latest move for state secrets came when the Justice Department urged a San Francisco federal judge to stay enforcement of a ruling admitting key evidence in a case ? evidence the government claims is a state secret.Justice Department  lawyers asked U.S. District Judge Vaughn Walker to permit the government to ask a federal appeals court to review his Jan. 5 ruling.

The government  wrote that the exposure of the evidence could pose "grave harm to national security."

The Justice Department took the same position in the same case on Jan. 22, two days after President Barack Obama was inaugurated. Many pundits, bloggers and civil rights groups suggested at the time that it was not the administration's true position.

The legal brouhaha in the spy case concerns Walker's decision to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004.

The document's admission to the case is central for the two former lawyers of the Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in 2005.

See Also:

• Bill Would Limit Judges on State Secrets
• Judge: President's 'State Secrets' Privilege Can't Shield ...
• New Attorney General Orders Review of Bush-Era State Secrets ...
• Verizon and Feds To Seek Dismissal of Anti-Spying Suit Thursday ...
• Judge Elides State Secrets Claim
• State Secrets Prevails in Illinois
• State Secrets Privilege Misused From the Start
• Analysis: Spy Ruling Bodes Well for AT&T Eavesdropping Case ...
• Data-Mining the EFF and ATT Legal Papers
• Analysis: Spy Ruling Portends Hurdles for AT&T Eavesdropping Case ...
• Ninth Circuit Accepts Appeal of Anti-State Secrets Decision ...
• Feds Appeal State Secrets Decision
• Secret Spying Showdown Hits Federal Appeals Court Wednesday ...
• State Secrets Expert: EFF Decision Unprecedented
• Judge Questions "State Secrets" Claim in ATT Spy Case