Margaret McKeown

“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

In Jewel Decision, Article III Uses Article I to Rebut Article II

The 9th Circuit just released its decisions in two warrantless wiretap suits: Jewel, which claimed that the dragnet collection of communications from the Folsom Street AT&T facility violated FISA, Electronic Communication Privacy Act, and the Stored Communications Act; and Hepting, which argued that the FISA Amendments Act–which grated the telecoms retroactive immunity for their illegal wiretapping–was unconstitutional. Both opinions were authored by Margaret McKeown.

The Hepting decision is a slam dunk win for the telecoms. While there are some interesting–and perhaps dubious moves–in the decision, the Circuit completely upheld Vaughn Walker’s District Court ruling that the retroactive immunity granted to the telecoms was constitutional.

But that huge win for the telecoms relies on the Circuit’s observation that Congress has the authority to pass laws regarding surveillance. And that’s what gets the government in trouble in Jewel. The Circuit based its decision that Carolyn Jewel had standing to sue the government for collecting her communications on that same principle–that Congress could and had passed laws that regulate surveillance–including the private right of action for claims of illegal surveillance.

Both the ECPA and the FISA prohibit electronic interception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explicitly creates a private right of action for claims of illegal surveillance.

McKeown’s opinion then uses the authority of Congress to dismiss the notion that this question–whether the Executive could be punished for its illegal surveillance of Jewel–should be thrown back in Congress’ lap. Congress has already weighed in on the issue, McKeown points out, both in the underlying statutes (providing for a judicial avenue of relief), and in the FAA (granting immunity to the telecoms but not the government).

After labeling Jewel’s claim as an effort “to redress alleged malfeasance by the executive branch,” the district court stated that “the political process, rather than the judicial process,” may be the appropriate avenue. There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said, although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. Continue reading

Emptywheel Twitterverse
emptywheel Think ACLU is reverse-dragnetting Feds. They're going to join challenges in every Circuit until they defeat dragnet. http://t.co/73WE3aIAkO
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emptywheel @billmon1 Somehow Cass did not search for the root of Israeli support for violence against Palestinian targets. @MonaHol
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emptywheel @MonaHol Don't worry. Cass Sunstein has solution for what he describes as Palestinians' support for violence v Israel http://t.co/fQc01eJw1I
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emptywheel So you see, Judge Lynch seems to have a better sense of dangers of 215 dragnets, realized or possible, than Congress.http://t.co/1sThyDhdM5
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emptywheel And here's 215 order they used to get financial records in 2010. http://t.co/uYB8jrq2jg As w/phone dragnet, claim RFPA doesn't exclude it.
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emptywheel So there is ZERO doubt DOJ thinks they can use 215 to get credit card records. Question is only whether and how they use it.
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emptywheel Zoe Lofgren also got James Cole to confirm they could use Section 215 to get credit card records. http://t.co/m61oynzsar
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emptywheel Here's DAG James Cole not denying they could get credit card records using Section 215. http://t.co/ei1RbJHOQz
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emptywheel @tresec29 Football wins and jersey sales are for him, though.
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emptywheel @Pachacutec_ What do they call themselves?
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emptywheel @Pachacutec_ Maybe Texas' many prominent closet cases will support him.
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emptywheel RT @AdamSchefter: To be clear, Dallas would like to sign Michael Sam to practice squad, not active roster. First things first. Physical Wed…
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