In two court cases that could test the limits
of the Barack 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 George W. 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
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.
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, Calif., 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
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 Bush administration invoked
the state secrets doctrine more than any other government in U.S. history.
In 2005, 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 U.S. citizens
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 ACLU, which is representing KindHearts, said
the shutdown 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
"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 IPS.
"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, "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 IPS, "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.
(Inter Press Service)