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
  (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.
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.

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.