Harry Pregerson

“Liberal” 9th Circuit Deals Death Blow To Al-Haramain Illegal Wiretapping Accountability Case

There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.

A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:

The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.

It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the Continue reading

Emptywheel Twitterverse
emptywheel @bmaz Oh, I've got several Burrs under my saddle and it's making me cranky and ruining my weekend, albeit to productive effect.
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bmaz Does @emptywheel still have a Burr in her saddle today? Or did the Wolvereenie girls in Blue overcome that?
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bmaz Also, new policy is not particularly firm on non-custodial interrogation/interviews https://t.co/8AeUu4ynfD
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bmaz New DOJ policy was first announced a year ago: https://t.co/2HDPx4bcMk The "exceptions" are huge+significant though. https://t.co/8AeUu4ynfD
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bmaz Man, this guy Sanford Asman, and his company CaseWebs, sure come off as huge dickheads https://t.co/B1YXYUaQKb
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emptywheel @kgosztola Any leak of "credible reports of threats against cops"? They seem to release those before these dragnets as legal justification.
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emptywheel @mar7k Different functions. Palantir has specific contracts to do stuff w/data. Adobe may be collected under Section 215.
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emptywheel @biasedreporter Yup. I'm beginning to believe that overseas there's no such thing as a discrete "wiretap" anymore.
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emptywheel @mar7k Put it this way: For AT&T, $$ seems enough motivator. For MSFT, prolly takes $$ and immunity. VZ and Apple require more coercion.
54mreplyretweetfavorite
emptywheel @mar7k But Burr's bill would include a number of other means of coercion.
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emptywheel @mar7k They don't get paid under Section 215 right now (not directly anyway). They would be under USAF. Also, immunity would be expanded.
55mreplyretweetfavorite
emptywheel @mar7k To be fair, it would be coerced, and appears to try to shut down normal legal means of challenge. Some providers don't want to coop
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