Article I v. State Secrets

Well, if nothing else, this al-Haramain case in CA looks like it’ll focus the issue of States Secrets just as the Senate attempts to curb it.

An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a "killer bullet" to the group’s case over warrantless wiretapping.

Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.

The SF Chronicle captures the government argument in all its Kafkaesque glory.

A Bush administration lawyer resisted a San Francisco federal judge’s attempts Wednesday to get him to say whether Congress can limit the president’s wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can’t possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.


But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.


Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it’s a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president’s authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists’ attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can’t be resolved without delving into operational details whose exposure would damage national security.

It looks like Coppolino’s argument will be worth reviewing in detail–to either laugh … or cry. I’m particularly interested in Coppolino’s concession that Congress "authorized" the President to protect military secrets, but that they "sought to intrude on the president’s authority to authorize surveillance." Maybe it’s just something in the water in the Bay Area, but it appears that Coppolino is fuzzy on Youngstown, too.

But Coppolino is willing to concede that the authorization to keep secrets comes from Congress, then I’m sure the Administration will have no problem when Congress sharply curtails the President’s power to invoke State Secrets every time he’s trying to cover up felonious behavior.


15 replies
  1. bmaz says:

    Crikey, I’ll have to read this stuff, but it sure says to me on first blush that Coppolino ate himself into a hole here. If he grants that it is a Congressional prerogative, and Congress has not restricted subject matter jurisdiction in some valid manner on the issue, the court gets to hear it. What am I missing here?

  2. LabDancer says:

    Ms E Wheel – If memory serves back in two thousand & aught six you pointed out this same Judge Walker for holding against American Telegraph & Telephone on the same basis – that privilege blown is like shoving the genie back into the bottle – which is pretty much orthodox law.

    And isnt this the same judge who:

    [a] as a lawyer acted [successfully] for the Olympics to keeping the Gay Olympics from using IOC trademarks?
    [b] as a lawyer acted [successfully] for the NRA in its winning streak on 2nd amendment challenges back in the 1980s?
    [c] was forced to resign his membership in the SF Olympic golf club around 5 or 6 P.N. [pre-Newt] to try to blunt opposition to his appointment & break a long confirmation battle?
    [d] as chief judge of this district gets to pick & choose his cases?
    [e] ruled against AT&T on the same ”blown privilege” basis in 2006?

    Old fashioned libertarian lawyers can look a lot like lefties on these sorts of issues.

    Was it so few years ago that the Dems were able to use the confirmation process to score political points, as opposed to now when its come down to trying to prevent just the psychopaths from the Federalist Society’s list of unindicted criminals submitted to Bush for appointment?

    Could one argue that the BCA at least technically achieved at least something towards bipartisanship: though each group would be looking up an entirely different orifice of that old pachyderm, each of the GOOP & Dems would have some basis for tearing up in looking back at the Reagan-Dad Bush years.

    • bmaz says:

      I don’t know about the other points on the list, but I don’t usually hold the clients he has represented against a professional trial attorney; it’s just their job. I have had a few that would send shivers down your spine, and they are pretty much all walking the street except those that died of natural causes.

  3. JohnLopresti says:

    Seems some spring cleaning has improved organization of EFF’s links pages, now one is available for links to the court documents in the alHaramain case, and another has links to many other cases such as Hepting, state attorneys general cases against telcos in wiretapping and the like. The Egelko article seems like the goldStandard for accuracy and timeliness regarding Walker’s informed repartee, and I appreciate ew’s including the coordinates for his article. I have communicated with him occasionally on state matters, and find he is well informed, and curious; but his employer has ’structural problems’, so I rarely visit that site. One of the interesting AlHaramain recent documents by petitioner is reminiscent of the CheneyDust theory of the monarchicalExecutive.

  4. LabDancer says:

    With you on all of that. Had a stint at acting for the Olys & some polluters & creative accounting fixated corporations & chiselling insurers & ol’ bidnesses myself. As they liked to say to me: keeps the wolf from the door. But not any of them for a few years now. Must be getting religion.

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