Al-Haramain Will Not Appeal 9th Circuit Decision Immunizing Illegal Wiretapping

The single best chance to hold the government accountable for its illegal wiretapping, the al-Haramain suit, is over.

Our goal was for the judiciary to rule that the president may not disregard an act of Congress in the name of national security.

[snip]

Ironically, although we had sought a judicial pronouncement that the president may not violate FISA, the 9th Circuit instead proclaimed that he can get away with it.

[snip]

We have decided not to challenge the 9th Circuit’s ruling in the U.S. Supreme Court. We feel that, given the Supreme Court’s current ideological tilt, it is better to leave other courts free to disagree with the 9th Circuit than to risk a bad ruling by the current Supreme Court.

The Al-Haramain case is over. Perhaps someday another court will adjudicate the scope of the president’s domestic wiretapping powers in a national climate less charged by post-9/11 fears.

With these words, Jon Eisenberg, the lawyer representing al-Haramain in its suit against the government for violating FISA, publicly described his decision not to appeal the 9th Circuit’s finding that the government is immune from penalties for violating FISA.

The resolution of the al-Haramain case has been little noted in the halls of DC. But it really underlies the entire debate about the FISA Amendments Act extension.

Because as shitty as the law just renewed is, the government also now knows that they don’t even have to follow that law. They are effectively immune from the law.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. bystander says:

    How absolutely awful, but I cannot find it in me to criticize any element of Eisenberg’s reasoning.

  2. Peterr says:

    The King is Not Above the Law
    b. 1215 in Runnymeade, Surrey, England
    d. 2013 in San Francisco, California, United States of America

    Requiescat in pace

  3. Horse Badorties says:

    Excellent! At least someone has learned from the Citizens United debacle. Don’t take something to the Supremes if you don’t think you’ll get a sweep from 5 weirdos who are to the right of Genghis Khan.

  4. What Constitution says:

    The right decision for the reality of the risks presented by the current Court. The wrong decision for Justice. Now, will Obama notice what’s driving this, and will Obama do anything about it with the appointments he’s likely to have?

    One need look no further than the opening sentence penned by Antonin Scalia – joined by three other dissenting Justices – in Boumediene v. Bush: “America is at war with radical Islamists.” These are people who are charged with the duty to adhere to the U.S. Constitution, and there is absolutely no doubt but that such a statement is, as a matter of constitutional law, utterly wrong – but it is the presumed factual and legal basis for Scalia’s ensuing rant, and this rant has flowed through right wing appellate and DC “jurisprudence” and hovered over the years of right-wing efforts to erode the Boumediene majority’s holdings for several years now. And as if to emphasize how fundamentally wrong and dangerous are the foregoing presumptions of Scalia and his ilk – and the degree to which the balance of the Federal judiciary know this but tiptoe around it – take a look at the cautious characterization used by Judge McMahon in this week’s district court decision openly invoking Alice in Wonderland when concluding that the court was believed to be constrained to allow the government to conceal its reasoning in condoning presidential assassinations of U.S. citizens notwithstanding the Constitution: Judge McMahon refers only to what is described as “an exercise colloquially known as the ‘War on Terror’”. That statement is accurate. That statement frames the issue. The rest of Judge McMahon’s decision is a veritable cataloging of all the different ways that the case before the court “had to” be treated as if it was an actual, congressionally-declared “war” that was at issue.

    The majority of the Supreme Court emphasized, in Boumediene, that “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” In Boumediene, this concept was applied to the constitutionally-guaranteed right of habeas corpus; the rights to due process of law or the rights at issue in al Haramain are not qualitatively lesser. But as many here have noted, the viability of Boumediene is uncertain before the current composition of the Supreme Court.

    It should not be the case that Obama must be relied upon to make appointments to the Supreme Court that would encourage the American public to believe that a statement as obvious as “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” But that’s where we are. With judicial appointments by Romney no longer of concern, the best hope is that judicial appointments by Obama could help. It’s a pretty simple calculus and the risks are pretty obvious.

    I wish I was more sanguine that Obama would come through if given the chance. Not seeing much to warrant that hope. I continue to hold out hope that some degree of sanity may percolate up from cases presenting different facts as the perceived environment changes – Judge Forrest on the NDAA, for example. In the end, it comes down to whether or not the Constitution is respected. That’s supposed to be a given at the Supreme Court, not a reason to have to abandon a serious case.

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