The legal brouhaha concerns Walker's decision to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004.
The lawyers — Wendell Belew and Asim Ghafoo — sued the Bush administration after the U.S. Treasury Department accidentally released the Top Secret memo to them. At one point, the courts had ordered the document, which has never been made public, returned and removed from the case.
To the extent any briefing on this topic is necessary in this Court, the appropriate course would be for parties to do so in connection with the pending stay motion. For now, we note simply our disagreement with plaintiffs’ specific contention that the collateral order doctrine would not provide grounds for an appeal under 28 U.S.C. § 1291. See Pls. Rep. at 4-5. The Court’s Order conclusively determined that Section 1806(f) of the FISA has preempted the state secrets privilege and that those procedures now will be applied in this case, first to determine whether the plaintiffs have been subject to the alleged surveillance and thus whether they in fact have Article III standing. That issue is separate from the merits question of whether any surveillance violated the law. Also, for the reasons set forth in the Government’s stay motion, any decision on the issue of standing under Section 1806(f), in the unique context here, would be effectively unreviewable because the proceedings ordered by the Court would not only inherently risk disclosure of the privileged information, they provide for its disclosure to plaintiffs’ counsel based on due process considerations. See USG Stay Mem. at 9-14. Plaintiffs’ plan for proceeding does not contend otherwise, but confirms their agreement that further proceedings under the Order would involve the disclosure of classified information to plaintiffs’ counsel, including possibly of the Government’s prior classified filings. Under these circumstances, the Government need not wait until the last minute for an actual physical disclosure of classified information to the plaintiffs’ counsel before appealing. See id. at 14, n.9. 3 The order is appealable under Sections 1291 and 1292(a)(1). The government has also sought certification under 28 U.S.C. § 1292(b). But this has nothing to do with the present question regarding a stay of this Court's order pending appellate proceedings. The fact that the Order provides for declassification review of information implicates an issue of timing, not the legal effect of the Order, which provides that due process requires the disclosure of classified information to the plaintiffs under Section 1806(f) after the 45 day review period.
Finally, in arguing that the Order is not appealable, plaintiffs refer to some statements of two individuals who have been nominated to offices in the Department of Justice regarding the lawfulness of some particular forms of surveillance. See Pls. Rep. at 5-6. These observations are alsoirrelevant to whether the Court should grant a stay pending appeal. The concern raised by the Government’s stay motion is that the privilege assertion not be irreparably harmed pending appeal. The Government’s position remains that this case should be stayed.
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