Courts to Test Executive Power, Secrecy

By William Fisher

In two court cases that could test the limits of the Obama Administration’s executive authority as well as its commitment to transparency, human rights lawyers are challenging the government’s right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.

In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as “terrorists” and close them down without providing these groups a way to contest the decision in court.

In the Al Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. Now the lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.

The organization sued the Bush Administration. But when the case came to court, in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.

But the judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government’s claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.

The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.

And when the Obama Administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco last week, it hoped for a reversal of the lower court’s ruling. But the appeals court surprised government lawyers – and legal scholars – by rejecting their appeal, thus allowing the lower court decision to stand.

The decision was a significant victory for Al-Haramain’s lawyers, who said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.

“I did not expect this from the Obama justice department,” said Jon Eisenberg, the Oakland, California, lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”

“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”

Eisenberg told us, “In three years of litigating this case, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.

The Al-Haramain case represented the second time the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal.

In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed. There has not yet been a court decision in that case.

The Administration of George W. Bush invoked the state secrets doctrine more than any other government in U.S. history. In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons with first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."

In the second case, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the funds and operations of another Muslim-oriented charity, KindHearts, three years ago. The American Civil Liberties Union (ACLU), which is representing KindHearts, said the shut-down was carried out “without notice or a hearing, based simply on the assertion that the charity was ‘under investigation’." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, “again without providing it with a reason or meaningful opportunity to defend itself.”

The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.

"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.

"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.

KindHearts was founded in 2002 – after the government shut down a number of Muslim charities –to provide humanitarian aid abroad and at home in the U.S. in full compliance with the law. Shamsi said that “Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.”

In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.

The ACLU’S Shamsi told us, “The government’s actions in KindHearts’ case show the extent to which the government has unconstitutional and unfettered authority. The government has shut the charity down based on secret evidence, without any notice of wrongdoing, any probable cause, and without providing KindHearts an opportunity to defend itself or any judicial review.”

“These violations of fundamental due process guarantees were committed against a humanitarian organization that sought to alleviate human suffering both at home and abroad. The government’s actions send a profoundly negative message to other U.S. non-profits and do nothing to serve this country’s security or its image in the eyes of the world,” she said.

She added, “We think that the entire regime is unconstitutional because it fails to provide constitutionally adequate substantive criteria or procedural safeguards.”

“The government’s unfettered authority to shut down KindHearts based on suspicion alone has not only left the charity unable to fulfill its humanitarian mission; it sends a profoundly negative message to other U.S.-based non-profits that seek to alleviate human suffering. At a time when the United States needs to restore its image in the eyes of the world, the government’s actions do not serve either this country’s security or its commitment to justice, ” she told us.