Analysis: Secrets and “need to know”
Analysis
NOTE: Nearly a quarter-century ago, in Navy Department v. Egan, the Supreme Court ruled that the President has broad constitutional power — even apart from any grant of power by Congress — to decide who gets access to classified secrets. The Obama Administration, continuing efforts begun in the Bush Administration, has been maneuvering toward a new test — very likely aiming at the Supreme Court – of the authority to decide who has a “need to know” secret data. A filing late Friday night before a federal judge in California intensified that effort.
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The Justice Department, facing an impatient federal judge’s threat to rule summarily that the federal government has engaged in illegal electronic wiretrapping on a Muslim organization within the U.S., asked the judge Friday night to issue a direct order to disclose secret data over the government’s objections that would then set the stage for an appeal on issues “of extraordinary constitutional significance.”
Among those issues is whether a court has any authority to order disclosure of “state secrets” for use by a private party in a damages lawsuit, whether a law allowing such damages lawsuits overrides the government’s claim of a “state secrets” privilege against disclosing classified information, and whether a judge, not the government, can decide what a private party “needs to know” from secret government data for use in a lawsuit.
Although it failed in February to get permission to appeal, the Department renewed that plea as a way to avoid court-imposed sanctions that federal officials regard to be severe and a deep intrusion on Executive power. In a 28-page response to the threat of sanctions by U.S. District Judge Vaughn R. Walker of San Francisco, the government contended that the judge has no authority to issue any punishment at this stage. In any event, it said, the government should not be penalized before it has a chance to appeal to defend its control on access to classified information.
The filing came in Al-Haramain Islamic Foundation, et al., v. Obama, et al. — a case now in its fourth year — involving a claim that the federal government engaged in illegal electronic eavesdropping on the Foundation and its officials. Al-Haramain is a Muslim group that insists it is a charity, but that the U.S. government has labeled a terrorist organization with links to Al-Qaeda. The eavesdropping allegedly was aimed at its actvities at a branch in Ashland, Ore. (The case is in U.S. District Court in Northern California, docket 07-109.)
