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Al-Haramain case headed to court this week

PORTLAND — The Obama administration is heading for a court showdown this week over warrantless wiretapping by repeating many of the same arguments the Bush administration made to justify it.

A ruling by a federal appeals court could come as early as Friday in the latest chapter of the long legal battle over the Ashland arm of the Al-Haramain Islamic Foundation.

The only U.S. chapter of the now defunct Islamic charity based in Saudi Arabia is the last major case with standing to challenge the Bush-era surveillance program after the government accidentally turned over documents that Al-Haramain lawyers said list the wiretapping.

Wrangling over those documents, which attorneys for Al-Haramain returned, has taken some surreal twists, including the government's insistence that lawyers review them in a sealed room, under heavy security, with only a pen and notepad.

"It was a crazy way to handle a case," said Steve Goldberg, a Portland lawyer who is among the attorneys representing Al-Haramain.

Al-Haramain's Ashland chapter was founded by arborist Pete Seda, who is fighting government charges of tax fraud and conspiracy in connection with the charity. He is scheduled to stand trial April 29.

The government eventually won its argument that the documents fell under the state secrets privilege that protects information considered vital to national security.

But the 9th U.S. Circuit Court of Appeals ruled that Al-Haramain could try to find another way to show it had standing to sue the government over wiretapping.

The appeals court sent the case back to U.S. District Judge Vaughn Walker, who ruled last July that the Foreign Intelligence Surveillance Act pre-empts the state secrets privilege.

On Jan. 5, Walker ruled that Al-Haramain had enough nonclassified evidence to show it had standing to sue the government under FISA, which was enacted in 1978 to allow courts oversight of surveillance requests and prevent domestic spying abuses. It was later amended by the USA Patriot Act.

But the government has dug in its heels again, this time under the direction of the man President Barack Obama appointed his attorney general, Eric Holder.

The government is arguing, Goldberg said, that even a federal judge cannot protect national security and has asked the 9th Circuit to stop the case, again, until it can appeal.

In a motion filed Monday with the 9th Circuit, Goldberg and other attorneys for Al-Haramain said the government is arguing that a federal judge can never decide the case "because to do so would confirm a secret fact — the fact of (the government's) unlawful surveillance ... "

"It's a blatant statement that you'll never be able to decide what we've done is illegal," Goldberg said Tuesday.

The Al-Haramain attorneys noted in their motion that FISA "gives the judge authority to employ appropriate security measures as this case moves forward, and he has amply assured that he will use those measures effectively to protect national security."

A Justice Department spokesman in Washington, D.C., declined comment.

The 9th Circuit gave the government until Wednesday to file additional arguments for its request for an emergency stay of Walker's order allowing Al-Haramain to proceed. Lawyers said they expected a ruling quickly after the deadline for filing of court papers, on Friday.

Earlier this month, Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.

The Obama administration has already sought to uphold the state secrets claim in another case involving the government's extraordinary rendition program, in which foreign nationals have been seized by U.S. agents and secretly transferred to other governments for interrogation.

In court papers filed last week, prosecutors said they expect they will continue to invoke the state secrets privilege in the Al-Haramain case, as well.