Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling:

The evidence shows that an inferred surveillance period lasting from February 19, 2004 to September 9, 2004 is reasonable. Based on statements by the Office of Intelligence and Analysis, at least four of al-Buthi’s telephone calls were intercepted as early as February 2003. Doc #657-4/99-4 at 32-38. Between this time and September 9, 2004, when the OFAC declared Al-Haramain a SDGT organization, governmental interest in Al-Haramain’s activities appears to have increased. Various officials involved acknowledged using surveillance and other classified information in this investigation. See Doc #721/115 at 37-41.

Accordingly, the most reasonable inference is that defendants had already begun electronic surveillance of Al-Haramain before its assets were blocked on February 19, 2004 and continued the surveillance at least through September 9, 2004. Plaintiffs Belew and Ghafoor were associated and in frequent contact with Al- Haramain and its officials during this time and were similarly subjected to electronic surveillance. See Doc ##657-6/99-6; 657- 23 7/99-7. Although plaintiffs have not had access to classified information that could prove the precise details of defendants’ surveillance, plaintiffs have nevertheless put forth sufficient evidence to raise a strong inference that the period of surveillance lasted at least 204 days.

Walker, and likely correctly, notes (see: p. 14-15) that al-Haramain itself is not eligible for damages or attorney fees due to its status as a designated terrorist organization. The court rejected Eisenberg’s relatively creative attempt to get the damages awarded under thecy pres” doctrine.

As to Plaintiffs’ request for injunctive relief, the court effectively holds they already have all they can get under the circumstances in light of the “surveillance program” being discontinued (could sure be argued that this is a pretty shaky assumption) among other circumstances:

The court first turns to plaintiffs’ request for a declaration that the warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA. Defendants argue that FISA does not authorize the entry of any declaratory relief. Doc #727/119. Defendants further argue that a declaratory judgment cannot issue if the “program or activity” no longer exists. Doc 15 #727/119.

It is unnecessary to decide whether and under what circumstances FISA authorizes the entry of a declaratory judgment because the equitable relief sought by plaintiffs is neither necessary nor appropriate. This court already determined in its March 31 order that plaintiffs established a prima facie case of unlawful electronic surveillance in violation of FISA. Doc #721/115 at 3. In the present order, the court awards compensatory damages and attorney fees based on defendants’ actions. A declaration that defendants’ actions were illegal would not provide plaintiffs with any additional relief or remedy.

Furthermore, because the TSP under which plaintiffs were monitored in violation of FISA ended in January 2007, Doc #668/103 at 18, there is no reason to believe that plaintiffs will be subjected to the same injury in the future. Under 28 USC § 2201, a declaratory judgment is available only when there is “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.” Golden v Zwickler, 394 US 103, 5 108 (1969). “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” City of Los Angeles v Lyons, 461 US 95, 103 (1983). Accordingly, plaintiffs’ request that the court declare defendants’ actions unlawful is DENIED.

Plaintiffs’ second request for equitable relief seeks an order prohibiting the United States government from using any information obtained during the surveillance at issue and ordering the destruction of such information. Again, to enter declaratory relief, there must be an “actual controversy” before the court. 28 USC § 2201. No such controversy exists here.

To sum up, a strong damages ruling, nice and full award of attorney fees (well earned by plaintiffs’ counsel I might add), a predictable refusal to grant monetary award to the underlying organization (which is defunct anyway) and a somewhat disappointing refusal to grant punitive damages. The court’s logic on the punitives issue is fairly underwhelming to me – basically that it is unfair to assess them against taxpayers – in that I fail to see why the “send a message” nature of punitive damages is any less necessary where it is governmental ill at issue. Taxpayers need the damn message too judge. Walker clearly, however, does not agree.

This will conclude the festivities in NDCA. As you may recall, the government prematurely tried to get the matter to the 9th Circuit on an interlocutory basis in early 2009, but the attempt was held to not be ripe and was denied completely. Well, there are no more issues left at the trial court level, so the Obama Administration can now finally move its craven determination to shield mass criminal conduct through the secrecy and cover up of state secrets privilege to the 9th Circuit. After the soul crushingly bad en banc decision by the 9th in Mohamed v. Jeppesen, however, there is no way to know how the case will be viewed there. Normally, I would expect a favorable ear from the 9th, but the craven government has so brain washed the judiciary on the need for secret law to stave off the terror boogeyman, that you never know. And Obama has literally been as bad, if not far worse than, as the Bush Administration in this regard.

So, we shall see how this sorts out in the 9th Circuit now and, presumably, the Supreme Court after that. While it has been very hard to get a definitive read on our newest justice, Elena Kagan, on these types of issues, it is almost certain she would recuse herself as much of al-Haramain and related cases were percolating through during her term as Solicitor General and she likely had enough participation in the discussions that she exercises her right to recuse. Now, whether that would leave a 4-4 split among the remaining eight justices, which would leave any opinion by the 9th Circuit intact, may well be the key question in the future.

For now, though, the trial court, through chief Judge Vaughn Walker hath spoken. And his finding of mass illegality and unconstitutionality in the the President’s Surveillance Program during the Bush Administration, in the only case that has managed to survive the egregious onslaught of state secrets coverup, by both Bush and Obama, should be kept firmly in mind. Especially when you read things like Monitoring America by Dana Priest and Bill Arkin of the Washington Post.

44 replies
  1. lakeeffectsnow says:

    that is some damn fine writing, bmaz – a damn fine post. many thanks for your dedication and time and work following this very important court case / issue and spelling it all out for us. appreciate it all very much. yes sir, that is some damn fine writing.

    • bmaz says:

      Yeah, Jeppesen looms large. And that may in fact have tempered Walker some here; either way, he crafted a reserved, yet clear in intent, ruling. He minced no words as to liability for the damages, only restraint as to awarding them. He knows this is going to picked through with a fine toothed comb.

      • NMvoiceofreason says:

        There was no restraint in awarding damages. The plaintiffs got 20K. The lawyers got 2M$. When lawyers get ONE HUNDRED TIMES as much as the people who were injured, you know you have a system of the lawyer, by the lawyer, for the lawyer.

        • DWBartoo says:

          Well, once-upon-a-time, NMvor, government “sexed-up” the “necessary” lies to con a gullible and “patriotic” public, now, of course, government has to “lawyer-up” because government, in this New World Order, “makes” reality whatever those who control the government want “reality” to be; this requires lawyers, lots of lawyers, especially if the, one and only, “Official History” is being composed out of whole cloth with a view to protecting the most-guilty, with layer upon layer of clever deceit,at the same time as the “process”, itself, is being consummated …

          Besides, it is simply impossible, any longer, for Congress to absorb ALL of the less-than-mediocre attorneys our law schools seem to produce in such great abundance…

          Fortunately and seriously, absolutely all snark aside, the lawyers who frequent this site are, truly, and without exception, among the very best and most human that may be found anywhere …


        • bmaz says:

          That seems a completely bogus statement when the court awarded the plaintiffs every cent of standard damages they requested. Every cent. Simply because they did not incur statutory damages in a higher amount, you complain their lawyers, who have invested thousands of hours, and years of their lives, to this critically important case, are overpaid? Wow.

        • DWBartoo says:

          Somehow, one senses, that NMvor has no idea, at all, as to what is required of those lawyers who must contend with the circumstances of obtaining broad social-justice or the great difficulty of allowing certain truths to be known, in even the best of times.

          In such times as these, our times, when all the forces of corrupt government appear alinged against truth and reason, the voices and the efforts of those attorneys who rise to this fundamental challenge to the rule of law, are so critically important to the rest of us, to civil society, as to be, literally, ALL that stands between the people and a crushing and calamitous tyranny.

          Unfortunately, one suspects that the lack of understanding expressed by NMvoiceofreason (no doubt, in great frustration about or with “something”), is ubiquitous throughout “the Homeland”.

          Consider, bmaz, your posts, Mary’s, and Marcy’s, in particular, truly constitute a large segment of the “front line” of a very critical and most-necessary national education.

          Thank you, each, very much.

          Someday, if “we” are “fortunate” and “lucky” … among “other” things, thoughtful and honest people in this nation, will join me in this appreciation. And history will remember what you have done.


        • Mary says:

          The damage award was based on a statutory amount. There’s no real doubt that the plaintiffs and the institution of law were damaged quite a bit mroe than that – when lawyers can’t talk to their clients without having the US gov unilaterally and on whim vioalte atty – client privilege, there is no way to calculate those kinds of damages. And when the courts bar recovery to anyone who doesn’t get a piece of evidence inadvertently handed to them on a silver platter, the damage is so much deeper and so much more widespread that you can’t really calculate it.

          But the US gov has thrown EVERYTHING at this case for YEARS. It’s been incredibly expensive for the lawyers involved and while the DOJ lawyers were billing and collecting from the same US taxpayers they were violating, no one was guaranteeing the lawyers any payment. Years of multiple lawyers lives were devoted to this case, with lots of travel expenses, expenses for security clearances, etc. If the corut refused to award attornies fees when people invested that much of their time and out of pocket, it would be a death knell.

          Maybe I didn’t notice, but did you give up your other work and other jobs for 3 years or so and pay out of pocket for security clearances and travel and depostion costs and discovery costs on the wing and a prayer of winning? After all, it’s such an easy thing cuz, ya know, it’s just a scam for the lawyers.

        • davidgmills says:

          Call me underwhelmed. But then again I have been underwhelmed by the federal judiciary for more than thirty years and get more so with nearly every opinion.

          Would NMvor have the same opinion if the court had awarded $4 million in actual damages and $2 million in attorneys fees? I doubt it. When a court tells the litigants that the violations of their Constitutional rights were of essentially nuisance value, or of no value at all, then it should not be surprising that a layman would think that con law cases really are just a legal racket.

          Maybe what NMvor does not realize is that no Plaintiff’s lawyer worth his salt wants ever wants to be put in a situation where the lawyer financially gains and his client loses. But that is where the courts and legislatures have been putting Plaintiff’s lawyers for years.

          I have been telling juries for years that if you can’t put a price on human pain and suffering then essentially you must believe that a man or woman’s life is worthless. These are constitutional violations for Christ’s sake. They are not worthless claims. (If the lawyers didn’t ask for more, shame on them for not figuring out a way [pain and suffering] to ask for something in line with the attorneys fees they were requesting). The court just told these litigants whose rights were violated that their loss of dignity and rights were worthless. What kind of message does that send to other judges and juries? If a case was worth awarding $2 million in attorneys fees, then it was worth awarding at least $4 million in actual damages.

          Then to decide that an entity is not entitled to punitive damages simply because it has been declared to be a terrorist organization by the government? Sounds like a license to declare every entity the government does not like to be a terrorist organization just to prevent punitive damage awards.

          The judiciary needs to step up and needs to recognize the messages it sends the public with their decisions. The message here was that the lawyers win and the litigants loose.

        • bmaz says:

          David, while I generally agree with much of what you say; here, although there are certainly Constitutional overtones, the basic case was for statutory violation of the FISA law, which has a provision for statutory liquidated damages for breach. It was not a general constitutional tort or other civil damages claim where general compensatory applied. As to the punitive issue, I urge you to read the decision. While I disagree with the court’s denial, the basis is more detailed and multfaceted than your description. I can tell you this, the plaintiffs and their attorneys are more than happy with this judgment, they will take it all day and every day.

        • davidgmills says:

          I am not denying that the Plaintiff’s and their attorneys won’t take it. But why is the case limited to statutory FISA damages? Why limit it in such a way? Push the envelope. Be creative and bring in other actions.

          But the statutory action points to the real problem. Statutory damages are almost always very limited and only the attorneys really win. Being a litigant is also hard work. Why should litigants work for free anymore than a lawyer should?

          The way things are structured in these cases the litigants win nominal damages. It really is time for the courts to carve out special damages that make the litigants win real money and when that happens, there will be a real penalty for violation. Punitive damages almost never get awarded or stand up on appeal. So the re needs to be some genuine recognized special damages for these cases. If nothing else, award the litigants for their time.

          In PI, we only get a portion of what our clients get. If we don’t make a real recovery for them, we don’t recover for ourselves.

          I just think the present system for addressing these violations, whether constitutional or statutory, creates a moral hazard. Lawyers get well paid, while their clients don’t. It really makes the public skeptical of the system.

          I am glad the lawyers won and hopefully their win will stop some of the 4th amendment abuses. But I really doubt it. Maybe the district court will be upheld by the circuit court, but if it goes to the Supremes, it will likely be overturned or whittled to the point where it loses any value as a deterrent.

        • bmaz says:

          It was attempted. Between immunity, qualified immunity and state secrets defenses, the statutory FISA claim was the only part of the case that made it through. And it should be noted that this is the only case out of dozens, if not hundreds, that had the good fortune to have specific facts that were sufficient to make it past state secrets and Iqbal/Twombly 12b6 motions.

  2. Scarecrow says:

    Is that right? After all the crimes of the last decade, the only federal court decision that still stands (pending appeal) as a civil judgment against the government is this one, in which the government accidentally tipped off the plaintiffs they were violating their rights? Incredible indictment of the justice system.

    • bmaz says:

      Yes, that just about sums it up. The other cases that were previously consolidated in NDCA that were dismissed on state secrets are on appeal now, but in light of the Jeppesen en banc ruling, it does not look good for them. Quite frankly, it may still take this case out too, but thanks to diligent plaintiffs and judge, this is in a far better posture to stick.

      • MadDog says:

        I’m in agreement that the government will continue to pursue this via the appeal process, and just for the simple fact that it really costs them little or nothing to do so.

        Having read through Judge Walker’s swansong now (and like you, found his reasoning on no punitive damages underwhelming), this appears to be the highwater mark of cases against illegal government surveillance, and I sadly come to the conclusion that the mark left will leave almost no impression on the National Security State and our overseers who inhabit it to America’s detriment.

  3. Watt4Bob says:

    “Furthermore, because the TSP under which plaintiffs were monitored in violation of FISA ended in January 2007, Doc #668/103 at 18, there is no reason to believe that plaintiffs will be subjected to the same injury in the future.”

    Is he drawing a clear line, and stating the requirement for future lawful behavior?

  4. john in sacramento says:

    According to my brand spanking new RONCO Judge Translator (not to be confused with the Manslator), this is what the order means in everyday English …

    Furthermore, because the TSP under which plaintiffs were monitored in violation of FISA ended in January 2007, Doc #668/103 at 18, there is no reason to believe that plaintiffs will be subjected to the same injury in the future.

    Shorter VW: Would you like to buy a pony?

    Under 28 USC § 2201, a declaratory judgment is available only when there is “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.” Golden v Zwickler, 394 US 103, 5 108 (1969).

    Shorter VW: Rights. Schmights. Go screw yourself.

    “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” City of Los Angeles v Lyons, 461 US 95, 103 (1983).

    Shorter VW: Forget everything you know about torture, renditions, surveillance and pornoscanners etc. big bro can bend you over any time he wants

    Accordingly, plaintiffs’ request that the court declare defendants’ actions unlawful is DENIED.

    Shorter VW: Take your hush money and gtfooh (get the f out of here)

  5. fatster says:

    Great news! Thanks so much for making it so clear, bmaz. Judge Walker will indeed be missed, but he’s left quite the legacy.

  6. mzchief says:

    Great post, Bmaz.

    I think the plaintiff that prevails should get a substantial monetary award as folks just don’t go to Federal court for the heck of it and doing so comes at the cost of a huge chunk out of life and livelihood to get justice served. I’m also with you on more and better putative awards.

    OT– Stuff like this totally undermines the legitimacy of the UN: “UN drops ‘sexual orientation’ from protected minorities list” (by Chris in Paris on 12/21/2010)

  7. DWBartoo says:

    Thoroughly and totally excellent and freakin’ important post.

    Thank you, bmaz.

    Your assessment (more than likely, “on-the-money”) that the executive has “… brainwashed the judiciary …” is most disturbing. As you say, Obama has been, at least, as “bad” as Bush, and, apparently, both Presidents and their proxies managed to frighten or convince, through overwhelming “evidence” or “something”, the entire “top” level of the judiciary, that total trust in the executive is required, perhaps endlessly, possibly forever.

    The question, now, it would seem, is precisely what “is” the “government”?

    If it is the executive, alone, and … above, then this last, great bowing of the Judicial “branch” is the final break, as Congress is, already, and has been, since 2000, fully complicit in relinqishing the “burdens” of governance.

    It is amazing, to me, that the judiciary can, so easily – despite whatever “soul-searching” they may claim, give up a rather enormous amount of power and suasion, not as individuals, but as an institution. This seems an enormous presumption for souls supposedly dedicated to the rule of law, at least as something they mumble to themselves on occassion. Frankly, if this is the “best” our finest legal minds may manage, I shudder to think what would happen were such positions to fall to the merely mediocre.

    Are we there yet?

    If this is jurisprudence, of the first order, in action, then the devil will, most certainly, take the hindmost.

    At which point, surely, the legal profession must cough up some concern that is voiced more than quietly, in hushed circumstances, in some remote back alley, say in Wasilla?

    No doubt, I expect too much from the world’s second oldest profession.

    My appreciation to you, bmaz, to other attorneys who comment here, and especially, to Marcy, for all that you, each of you, dare to do, dare to say, and dare to believe.


    • bmaz says:

      Well, thank you, and happy holidays.

      I will say, however, some consideration should be given to the position this kind of crap by the government puts Federal courts and judges in. Remember, they for the most part truly are schooled in and respectful of the law and Constitution. This type of question really does bring a substantial separation of powers issue. It is a void in constitutional and statutory law that reminds us that, the founding document – as awesome as it truly is and has proved itself enduringly to be – is still only as good as the men charged with keeping it. Separation of powers in the Constitution is based on the hope that no one branch will overreach and, if it does, that the other branches will protect their turf on behalf of the whole. The unitary war empowered executive has stretched its arm light years beyond what I think was ever envisioned by the founders. While the courts may well, and clearly have in many instances, be aware of the issue, their underlying respect for the principles of separation of powers seems to restrain them from making the same aggressive turf fight and claims that the Executive Branch has. There is some honor in that, but we may need more under the circumstances.

      • DWBartoo says:

        Thank you, bmaz, for your considered response.

        I truly appreciate your cogent commentary as this nation plummets to unknown and, possibly, unknowable depths.

        “…only as good as the men charged with keeping it.” is, forever, the crux.

        ‘Tis not merely more honor we’ve need of … but large dollops of courage and, as well, perhaps, a “moral compass” that delineates principle.

        “When, in the course of human events, it becomes necessary …”

        The very best of the holidays, bmaz, to you and to yours.


    • quake says:

      It is amazing, to me, that the judiciary can, so easily – despite whatever “soul-searching” they may claim, give up a rather enormous amount of power and suasion, not as individuals, but as an institution. This seems an enormous presumption for souls supposedly dedicated to the rule of law, at least as something they mumble to themselves on occasion.

      At various times in the past the Supremes have authorized slavery (1850s) and segregated public facilities (1890s), so compared to that this isn’t such a big deal. Just America being America.

      • DWBartoo says:

        Ah, quake, what unfolds, now, in my estimation, is well beyond Dred Scott, beyond ANYTHING which has gone before.

        My consideration is that America is moving into the territory of the worst tyranny it has ever faced, through the terrain of endless warfare, and on to the complete dissolution of the elements that constitute the rule of law.

        Never before has this nation fallen so much victim to unitary control by the executive, and the implications of that are chilling, appalling and destructive beyond imagination.

        Scholars may trace the beginnings of this “shift” to the use of atomic weaponry during WWII and the perceived need of secret and un-overseen or even “extra-legal” decisions …

        Whatever its causes, and I think there is “more” to it than the simple expediency of war-making, we are now feeling its effects in ways that will have terrible consequences and unimaginable repercussions, especially for the citizens of this nation, but also for virtually everyone in the world.

        America is ,now, an essentially lawless nation, relying on destructive might to have its way … in the Homeland and throughout the world.

        This is not a good thing …

        One cannot imagine such behavior will long be tolerated.


        • quake says:

          I mostly agree with you (98% or so) but was being a bit snarky because the reality is (too?) painful to contemplate. But the 2% where I disagree is that we Americans don’t like to face up to the contradictions that have always been a feature (not a bug!) of our history, namely the blatant contradictions between our professed ideals and the actual reality. For example, the stirring words of the preamble of the Declaration of Independence (“…that all men are free…”) were of course written by a slaveholder.

          Throughout U.S. history there have been notable episodes of repression (Slavery and Jim Crow, of course being the most blatant, The Alien and Sedition Act under John Adams, the Palmer Raids under Woodrow Wilson, the forced incarceration of Japanese-Americans under FDR, Joe McCarthy, HUAC, Hoover’s FBI keeping files on everyone) so the current snooping is just a technologically updated version of what we’ve had many times before. But this time it’s coupled with a stupid policy of tax cuts, an even stupider policy of foreign wars at ruinous cost, and a running down of the hardware (roads/bridges) and software (education) infrastructure, coupled with unprecedented large scale corruption, etc.

          It’s true that the U.S. has previously somehow always managed to right itself in the past, but this time it might not. The Roman Republic (for that matter, the Roman Empire too) didn’t last forever either.

        • DWBartoo says:

          Let us “compromise”, then, on the 98%, quake.

          “Had their sole and arbitrary power not been disguised under the forms of ancient liberty they would never have held it so long.”

          Robert Graves, in his book, “I Claudius”.

          They rode in on democratic principles and then proceded to publicly execute the Constitution. They bankrupted the nations’ wealth in endless wars and compromised its principles through secret dealings, including such things as torture and murder … and, always, at every opportunity, they bent and twisted the law … to wealth and to power, for themselves.

          Dare we fain call it treason, perhaps even treason most foul?


  8. Xboxershorts says:

    Question BMAZ…

    What can you tell us about the lawyers arguing for the DoJ? Are they careerists? How long? Who brought them in? Especially the lead(s).

    • bmaz says:

      Effectively, yes. The real lead is Tony Coppolino, who was so during the Bush Administration and has continued to be during the Obama Administration. And, yes, I think he buys his own bullshit.

      • Xboxershorts says:

        I was playing 11 dimensional chess with that question….

        Maybe the Holder/Obama DoJ is letting them argue their own (repulsive) policies for a reason?

        • bmaz says:

          Nope; no chess. The Obama Administration has quite intentionally, and deliberately, not only adopted the craven posture of its predecessor, but been more creative and diligent in fighting to claim and impose it. There is simply no way to deny it at this point.

  9. powwow says:

    Thanks for this news and analysis, bmaz. Great Jon Eisenberg excerpt/quote.

    On a related ‘good news from the independent judiciary’ front, although I don’t think I can do it justice in a comment, there’s some very good news from the Sixth Circuit appellate court, with regard to the federal government’s claimed power to access our emails without a court warrant. Besides being some rare and welcome good news, and principled Executive Branch-pushback, from the courts, the 6th Circuit decision on December 14th seems to have received relatively little notice or comment, but shouldn’t be overlooked, due to its future potential to seriously constrain largely-unrestrained Executive Branch domestic spying (not just in criminal cases, I hope, but within the “intelligence spying” arena of the secret FISA Court).

    First, to set the stage a bit, quoting Orin Kerr (whose Fourth Amendment scholarship is cited in the court panel’s unanimous decision) writing at

    In the last three years, three federal circuits have published opinions on whether the Fourth Amendment applies to e-mail (dividing 2–1). In all three cases, the initial panel opinions were withdrawn or overturned on other grounds, leaving the issue surprisingly unsettled. This morning, the Sixth Circuit handed down an opinion by Judge Boggs that addresses the question directly and concludes that the Fourth Amendment protects e-mail held by an ISP with a full warrant requirement.

    The case is United States v. Warshak, and, as Orin notes, further appeal seems unlikely.

    This appellate panel not only flatly declared the government’s interpretation and use of the Stored Communications Act to be unConstitutional, with refreshing judicial independence and candor, it went out of its way to close off potential future avenues of escape from its ruling with footnotes like these:

    Footnote 13 on PDF Page 14:

    Though we may surely do so, we decline to limit our inquiry to the issue of good-faith reliance. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). If every court confronted with a novel Fourth Amendment question were to skip directly to good faith, the government would be given carte blanche to violate constitutionally protected privacy rights, provided, of course, that a statute supposedly permits them to do so. The doctrine of good-faith reliance should not be a perpetual shield against the consequences of constitutional violations. In other words, if the exclusionary rule is to have any bite, courts must, from time to time, decide whether statutorily sanctioned conduct oversteps constitutional boundaries. See id. at 816 (noting that repeated avoidance of constitutional questions leads to “constitutional stagnation” (citing Saucier v. Katz, 533 U.S. 194, 201 (2001))).

    Footnote 17 on PDF Page 24:

    Of course, after today’s decision, the good-faith calculus has changed, and a reasonable officer may no longer assume that the Constitution permits warrantless searches of private emails.

    Here’s some of the core language of the court’s landmark ruling (emphasis added):

    Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails.

    The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. […] In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

    In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. […] Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.


    Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.


    If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is.


    Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial ISP.” Warshak I, 490 F.3d at 473; see Forrester, 512 F.3d at 511 (suggesting that “[t]he contents [of email messages] may deserve Fourth Amendment protection”). The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA [Stored Communications Act] purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.

    Orin Kerr concludes his post about the new Warshak ruling with, if anything, I think, understatement about the import of this careful, courageous decision, which has been long overdue from our Judicial Branch of government:

    Under the Court’s reasoning, then, 18 U.S.C. 2703(b) is unconstitutional at least in most applications – which, again, I think is correct. This is a very important opinion, and there’s a lot in there, but based on a first read it strikes me as quite persuasive and likely to be an influential decision going forward.

    • DWBartoo says:

      Thank you, powwow, for the “good news” and the for links to Orin Kerr, a highly worthwhile and enlightening “excursion”, for certain.


    • DWBartoo says:

      I second this appreciation, Fractal, and hope that this post will be front-paged at a time-slot when many, at FDL, might have the time and opportunity to pay it proper attention.


      • DWBartoo says:

        Hmmm, I see that the post has already (yesterday, evening) been front-paged, so those who wish to see it on the front page shall have to, most unfashionably, look … backwards.


      • Fractal says:

        second that. The 6th Cir. decision should be on front pages even though it’s already a week old. I hope the other Circuits do follow the 6th, or at least that the 11th adopts the same warrant requirement for email, since my ISP is in Atlanta.

  10. Mary says:

    This is a great piece – especially given the record time from decision in which you put it up!

    This part reads kind of like a roadmap, though:

    Walker, and likely correctly, notes (see: p. 14-15) that al-Haramain itself is not eligible for damages or attorney fees due to its status as a designated terrorist organization

    A non-judicially reviewed designation that disenfranchises.

  11. JThomason says:

    Heard that this was decided today on public radio this evening. Had made note of the Sixth last week. CBS leads a story on the CIA creating a task force on Wikileaks with “WTF”. Came over here to see this post which I knew would be here break down Walker’s decision. I am not disappointed. Too bad BO seems dead set on jerrymandering around Boumediene.

    At least there seems to be a spark of a conscience left in the body politic.

  12. davidgmills says:

    Makes absolutely no sense that those claims would be barred and a FISA claim succeed.

    Then the fault lies with the judiciary. But again nothing surprises me with the federal judiciary any more. The more opinions like this though, the more then general public will question what it going on.

    I had a similar problem with a state case I filed in 2006 regarding computerized voting. I argued that no paper trail violated the state’s constitution. Lost because I as a single voter could not prove harm due to the fact that my vote was secret and had no way of knowing whether it was counted or not.

    A real catch 22.

    A showing of harm should not be required as proof when the case involves secrecy. Period. Just bad law. No other way to explain it.

    • bmaz says:

      With all due respect, and I do not necessarily disagree with you in theory at all, but you need to review Iqbal and Twombley, as well as the long line of cases addressing sovereign immunity, qualified immunity and 12b6 thresholds thereon. Not to mention how state secrets has been used to shut cases down, especially as to standing. I too think these claims should not be so difficult to get through to a jury, but it has long been thus and has recently become even more entrenched from the Iqbal decision. I litigated many of the same and/or analogous issues in the 90s and the same problems, even if not quite so pronounced, were very present then. It is much different going after state and local entities on these claims than it is the federal government. Night and day in fact. The reason the FISA claim succeeded where the others did not is under the theory that FISA created a specialized action that was permitted even against the defenses I just enumerated. Honestly, the Supreme Court may well shoot that down too.

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