OPEN GOVERNMENT -- The Associated Press reports that the Obama administration has lost its argument, echoing the Bush Justice Department's position, for a state secrets privilege terminating a lawsuit challenging the
government's warrantless wiretapping program.  A federal appeals
court in San Francisco today rejected the department's
request for an emergency stay in the case involving warrantless surveillance of a defunct Islamic
charity.
  (Case documents here)

The Obama administration, like the Bush administration before it,
claimed national security would be compromised if a lawsuit brought by
the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was
allowed to proceed.

    Now, civil libertarians hope the case will
become the first chance for a court to rule on whether the warrantless
wiretapping program was legal or not. It cited the so-called state
secrets privilege as a defense against the lawsuit.

    "All we
wanted was our day in court and it looks like we're finally going to
get our day in court," said Al-Haramain's lawyer, Steven Goldberg.
"This case is all about challenging an assertion of power by the
executive branch which is extraordinary."

    A Justice Department spokesman declined to comment.
    The
decision by the three-judge appeals panel is a setback for the new
Obama administration as it adopts some of the same positions on
national security and secrecy as the Bush administration.

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

    Yet even as that review
continues, the administration has invoked the privilege in several
different cases, including Al-Haramain.