"As TWI reported on Friday, the case of Al-Haramain v. Obama presents one of the first direct challenges by a victim of the Bush National Security Agency’s warrantless wiretapping program against government officials. But the government has argued vigorously to have the case dismissed, invoking the so-called “state secrets privilege” to refuse to turn over information about the program, and has refused to provide the organization’s lawyers use of a document that reportedly reveals that Al Haramain was one of the program’s victims. Although U.S. District Judge Vaughn Walker has repeatedly rejected the Justice Department’s argument, DOJ lawyers filed an emergency appeal; on Friday afternoon, the Ninth Circuit Court of Appeals rejected it.

"So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”

"Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court. (Bold added.)

“ 'It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge Walker’s chambers to seize the classified material from his files!' wrote Jon Eisenberg, Al-Haramain’s lawyer, in an e-mail on Saturday. 'In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.' 

"The result was a world awash in cheap money, looking for somewhere to go.

"Most of that money went to the United States — hence our giant trade deficit, because a trade deficit is the flip side of capital inflows. But as Mr. Bernanke correctly pointed out, money surged into other nations as well. In particular, a number of smaller European economies experienced capital inflows that, while much smaller in dollar terms than the flows into the United States, were much larger compared with the size of their economies.

"There are no significant amounts of asbestos in the mountains near Libby, Montana, they asserted, and Grace’s vermiculite-based products carry no death. “There is no question that miners and their families suffered tragic losses as a consequence of the operation of this mine,” conceded Grace defense attorney David Bernick in his opening statement. But those deaths were the result of unregulated fibrous minerals—not asbestos—and all related to the bad, dusty old days before Grace reformed its milling processes. It was a terrible tragedy, but no one’s to blame.

"As for those others, the townsfolk whose hoarse voices foretell a relentless decline from oxygen tank to perpetual breathlessness, well, it may be they got their various asbestos-related diseases from doing brake jobs, or the sort of pick-up construction work men all across the rural West use to get by on. It may be that many of them are not sick at all, just walking around under the pall of false diagnoses. In fact, the lawyers said, the idea that more than 1,200 people in this tiny community have asbestos-related diseases from Grace’s now-defunct vermiculite mine is a grim fairy tail, the invention of one greedy law firm, two incompetent doctors, and three meddlesome federal agents.

"That was the message delivered between the lines during opening statements in Judge Donald Molloy’s Missoula, Mont., courtroom, where five former Grace officials as well as the corporation itself stand 

"These arguments are believable, because the alternative—stated succinctly by one defense attorney—is horrific.

“ 'What they are trying to say is that Harry Eschenbach is a bad man,' lawyer David Krakoff said plainly. 'That he didn’t care about the workers of Libby and was willing to let them suffer death and disease.'

"The case against W.R. Grace is of enormous consequence: in terms of potential jail time and fines, it ranks as one of the largest criminal environmental cases in the history of the United States. The Denver Environmental Protection Agency has been so closely tied to the matter—both in terms of the cleanup and the prosecution—that acquittals would be an enormous blow to the office’s credibility. 

"As well, guilty verdicts would vindicate the EPA’s controversial cleanup in Libby, and might finally force the federal government to acknowledge and do something about the risk to those living in upwards of 15 million buildings in the United States insulated with vermiculite-based products from Grace’s Libby mine.

"The truth is, Grace and its executives are not being charged with murder, nor with any actions that contributed to the deaths of those miners. The miners’ family members who died of the dust brought home on their husbands’ and fathers’ clothing are not being avenged directly here; nor are those whose disease stems from living in a home insulated with asbestos-contaminated vermiculite.

"The charges prosecutors have been able to stick beyond the reach of statutes of limitation are environmental in nature: that Grace and its managers conspired to defraud the government and violate the Clean Air Act by knowingly releasing a hazardous material into the ambient air that would cause the imminent endangerment of those who came in contact with it."