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The 9th Circuit Court of Appeals in San Francisco Friday rejected an attempt by the Obama administration to use the state secrets privilege to block a lawsuit concerning the Bush administration’s domestic surveillance program.
Obama’s Justice Department, in legal arguments identical to those made by Bush administration officials, had sought an emergency stay and said national security would be at risk if the lawsuit proceeded.
In a one-page opinion, the 9th Circuit said it agreed with the "district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED [sic] as moot."
U.S. District Court Judge Vaughn Walker ruled Jan. 5 that a classified document purportedly proving plaintiffs were under surveillance could be admitted into evidence and that the case could proceed.
The lawyers, Wendell Belew and Asim Ghafoor, appear to be the only American citizens who say they have hard evidence that proves the government spied on them.
Belew and Ghafoor had represented the Islamic charity Al-Haramain. The US Treasury Department accused the charity of funding al-Qaeda and in 2004 froze the organization's assets. During the exchange of documents between Belew and Ghafoor and the Treasury Department in August 2004, the lawyers were sent a top secret document Eisenberg claims is evidence the attorneys' phone calls with the Saudi director of Al-Haramain were monitored in violation of the Foreign Intelligence Surveillance Act, which requires the US government to obtain a warrant from a special court in order to spy on American citizens.
The top secret document the Treasury Department said it inadvertently gave to Belew and Ghafoor has since been retrieved by FBI agents and is being held in a secure facility in San Francisco. By law, Eisenberg is prohibited from discussing the specific contents of the document because it remains classified.