Uh-oh! US Treasury gives Top Secret Spy Log Given to Subject of Spying by Mistake

SAN FRANCISCO (BCN)

Lawyers from the Bush administration Justice Department late Monday night asked a federal judge in San Francisco to suspend an order that would have allowed lawyers in a warrantless wiretapping case some access to classified documents.

The Justice Department attorneys asked U.S. District Judge Vaughn Walker to stay his Jan. 5 order while the government appeals the order.

Walker issued the order in a lawsuit in which a now-defunct charity, the Al-Haramain Islamic Foundation of Oregon, claims federal agents illegally listened on a phone call to a foundation officer in Saudi Arabia in 2004 without obtaining a warrant.

The group's lawsuit was initially partly based on a top-secret document, reportedly a phone log, accidentally released to the foundation by the U.S. Treasury Department in 2004.

Since then, agents have retrieved all copies of the document and the organization's lawyers have not been allowed to cite the papers, now known only as the Sealed Document, as evidence.

In his Jan. 5 order, Walker said the foundation had presented "sufficient facts" from publicly available sources, including an FBI official's speech, about the alleged wiretapping to allow the lawsuit to continue.

Walker said the foundation's lawyers must eventually be allowed to view some classified documents, although he did not say which ones, and he ordered the government to take steps to provide them security clearances.

But in last night's filing, the Justice Department lawyers said that only the National Security Agency and not a judge could determine whether the lawyers could see the classified documents. They said the agency has determined the lawyers are not entitled to see them.

The federal attorneys wrote that the case "raises profound constitutional questions" and said national security could be endangered.

Jon Eisenberg, a lawyer for the foundation, called the filing "a strong act of defiance" of the judge's order and said he will contest the bid for a stay. A hearing on the request for a stay has not been set.

Eisenberg said the filing was one of the last acts of the Bush administration Justice Department since it was submitted at 10:56 p.m. East Coast time. He said he believes the Obama administration Justice Department is not bound to maintain that legal position.

A Justice Department spokesman could not be reached for comment today.

JuliaCheever1153a01/20/09