Oregon Public Broadcasting

A judge has given the federal government until Friday afternoon to respond in the case filed on behalf of a defunct Southern Oregon charity.

The case contends that Al-Haramain Islamic Foundation of Oregon was the target of warrantless wiretapping. April Baer joins us now with a status update.

Beth Hyams: April, what do we have here?

April Baer:  To make a long story short, one very irate federal judge. As folks may remember, Al-Haramain of Oregon, a small Islamic charity based in Ashland, was accused in 2004 of having connections to terrorism. Whether Al-Haramain was wrongfully branded is the subject of another case.

For the last few years, Judge Vaughn Walker in a federal court in San Francisco, has been trying to determine whether Al-Haramain was illegally surveilled back in 2004.

The charity’s attorneys and the Justice Department have been engaged in a legal duel over what’s known in this case as “The Document”. No one’s supposed to talk on record about it, but it’s believed to be some sort of NSA call-log. And the Al Haramain lawyers think it might show surveillance of their clients.  Justice Department lawyers have said in court they will not let AL-Haramain’s attorneys get access to it, that it’s simply a matter of national security

Beth Hyams: Can they do that?

April Baer: Well, it’s going to be very tough to stop them. Last Friday Judge Walker issued an order basically telling the Justice Department defendants to give him one reason not to sanction them for refusing to allow access—even though two of Al-Haramain’s attorneys cleared background checks for top secret access.

I was talking to Bob Turner about this. He’s the Co-Founder of the Center for National Security Law at the University of Virginia Law School. He worked for several Presidents. He says the question of how much the executive has to tell the other two branches of government dates back to George Washington and the first Congress. 

Bob Turner   “The privilege we’re talking about—the state secrets privilege is founded in two things—the Constitution, and it’s founded in public policy.”

Just as we take for granted that a husband need not testify against his wife, we allow that not everything the government does can be public knowledge….It’s not legislated, it’s a privilege. And he’s basically saying you have to trust your clandestine services and their internal checks and balances.

Beth Hyams: So what does that mean for Al-Haramain?

April Baer: Well, there are several possibilities.

DOJ says OK we’ll let you see The Document.

Maybe they’ll try to come up with some mediated way of explaining themselves—letting the court assume the document is what plaintiffs claim it is. 

Or maybe they’ll just hold the line, and decline again to show it. That’s at odds with what President Obama says he wants the state secrets policy to be, but not without precedent. There’s a a famous case, United States v. Reynolds in which the Supreme Court took the executive branch’s word about a plane crash. Fifty years later, it was proved the government had misled the court about the nature of the plane's mission just to avoid liability and embarrassment. I tracked down a scholar named Lou Fisher who's written April Baerout the case, and state secrets. He's been following Al-Haramain.

Louis Fisher   “I think unless the judiciary just wants to be am arm of the exec branch the judge has to look at the documents to make sure the declaration is accurate. Otherwise they get treated the way the Supreme Court did in the Reynolds Case—they get snookered.”

It may be the feds are willing to take sanctions, or lose this case to keep from giving up the Document.

Beth Hyams: Has the Department of Justice responded?

April Baer: Not yet, but the court’s still open for twelve more minutes! And it’s not uncommon to see filings coming in at the last possible second.

Beth Hyams: Thanks April.

April Baer: Anytime.