The U.S. 9th Circuit Court of Appeals late last year rejected the Al-Haramain assertion that it was illegally wiretapped, but sent back to Walker the issue of whether FISA preempted government state secrets privilege claims. Walker ruled that it did.
In questions submitted to the lawyers ahead of Tuesday's hearings, Walker seemed to look askance at the government's argument that allowing the lawsuits to go to court would reveal national security policy to potential enemies.
Walker's rulings aren't expected before Bush leaves office, bequeathing the battle over the reach of presidential powers to Barack Obama.
"They would want to get rid of these cases, to move on," Pepperdine University law professor Douglas W. Kmiec said of the incoming administration. "But I also think there will be a proper impulse within the Obama Justice Department to get the law right. It's one thing to have a clean worktable, and another to have a clean worktable where the laws have been brushed to the floor and all lie broken and scattered."
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c arol.williams@latimes.com
