The al-Haramain Decision

Due to some doozy global warming storms last night, we had intermittent power, so I’m just now getting to the Vaughn Walker decision in the al Haramain case, in which he dismisses the suit but invites the plaintiffs to submit unclassified evidence in support of their case. So there’s already a range of smart commentary on the decision. The Electronic Frontier Foundation argues that Walkers ruling bodes well for their own case–which relies on the AT&T documents liberated by Mark Klein, and not classified evidence. Wired’s David Kravets notes that, coming as it does two business days before Congress will grant the telecoms immunity, the ruling has little meaning for EFF. McJoan basically makes the same argument–Congress is in the process of taking an unwieldy bad law and making it worse.

With regards the events of the next week, I sort of agree that this ruling will have little effect. There’s nothing in Walker’s ruling that will, by itself, persuade Barack Obama to take a stand on this legislation (he’s due to make an announcement about his stance on the legislation, but I don’t think this will change it one way or another). And I agree with Kravets–once Congress does pass its immunity, this ruling will be meaningless for those suing the telecoms (though perhaps it’ll make the likely suits that the immunity itself is illegal more interesting).

State Secrets Is Not Absolute

But the decision is interesting for two other reasons. First, Walker makes a strong case that the government’s ability to invoke state secrets is not absolute. Walker cites one of David Addington’s favorite cases, Navy v. Egan, to show that even that case envisions the possibility of Congress placing limits on the President’s ability to control national security information.

But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube. [my emphasis]

And then, in yet another example of Article III reminding the executive branch about that whole co-equal branch thing, Walker reiterates that the courts get to decide the limits to the President’s power.

The weakness of defendants’ first argument——that the Constitution grants the executive branch the power to control the state secrets privilege——is evident in the authorities they marshal for it. Defendants rely on United States v Nixon, 418 US 683 (1974), in which the Supreme Court rejected President Nixon’s efforts to quash subpoenas under Federal Rule of Criminal Procedure 17(c) seeking tape recordings and documents pertaining to the Watergate break-in and ensuing events. The Court rejected the president’s “undifferentiated claim of public interest in the confidentiality of [White House] conversations” between the president and his advisors, contrasting the need for confidentiality of these conversations with “a claim of need to protect military, diplomatic or sensitive national security secrets.” Id at 706. In the course of making this comparison, the Court observed that privileges against forced disclosure find their sources in the Constitution, statutes or common law. At bottom, however, Nixon stands for the proposition that in the case of a common law privilege such as that asserted by President Nixon, it is the judiciary that defines the metes and bounds of that privilege and even the confidential communications of the president must yield to the needs of the criminal justice system. This hardly counts as authority that the president’s duties under Article II create a shield against disclosure.

So Walker lays out the legal basis through which Congress can place limits on how the Executive Branch plays with classified information. Given that Congress is currently considering placing limits on the State Secrets privilege, Walker’s decision may come in useful.

John Yoo Was Wrong

The other reason I find this opinion useful is because it directly refutes a claim John Yoo made in one of his still-classified OLC opinions. As I reported in May (though we basically knew this anyway), John Yoo claimed that Congress had never really said exclusive meant exclusive.

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

Not that it should surprise us, but Judge Walker disagrees with Yoo.

It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open
court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc #452 at 29:2-3), whether the president actually had constitutional authority under Article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries. E g, id at 32:8-10.

To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities. [my emphasis]

Remember, the Office of Professional Responsibility is currently investigating whether Yoo’s decisions underlying the warrantless wiretapping program were improper. Not that it ought to take anything more than common sense to conclude that Yoo’s claim–that FISA did not explicitly limit the President’s ability to conduct wiretapping–is nuts on its face. But just in case, now there’s another judge’s ruling that clearly finds Yoo’s proposition to be nuts.

In any case, with regards to FISA, this ruling is little more than a useful marker for how a court interprets a law that will, as of Tuesday, be out of date. But at the very least, the decision is probably giving David Addington and John Yoo and the rest of the Unitary Executive clubbers heartburn right now–and that’s always a good thing.

  1. darclay says:

    EW, I f congress passes FISA and we find out later that say Reid , Pelosi, and a majority of critters Knew that this law helps destroy the 4th amendment, can they be held criminally liable for this. Seems that that would be a treasonable offence to destroy part of our constitution.

  2. Bushie says:

    I guess it’s my wishful thinking, but I thought the courts well reasoned opinion show the effort immunize lawbreakers from suit a farce, and undercuts the rational of the buffoons backing immunity. It could provide Obama with an out, but he, like Bush, can’t change positions in the face of new information, because that would show weakness.

  3. darclay says:

    Seems like the Unitary Executive just moves us more toward Ceasar, Tsar, King instead of a Republic. It seems that congress is an extension of the Executive Branch and the last bastion of our Republic is the Judicial Branch, which now is balanced with 3 conservatives and 3 liberals and one swing. Maybe their illegal wire taps have just been about getting info on the next SCJ so we can finally have a CESAR.

    • BayStateLibrul says:

      “Render to Caesar the things that are Caesar’s, and to the Judiciary
      the thing’s that are Judicial”

  4. scribe says:

    I think the best we can hope for is that Reid decides to bottle up the bill until after the election, so clearer heads can prevail, and blames the Republicans for any attacks between now and the election.

    After all, the Republicans are in charge and if they screw up, in the words of David Addington, “the blood will be on their hands”.

    Sorta OT: Just wondering: if one (a) is an OLC attorney and (b) in the course of such employment writes a memo on presidential power and (c) in that memo overlooks/omits any reference to Youngstown, so as to (d) reach a predetermined result, and (e) one then cashes one’s paycheck (which would have disappeared had one done a proper job), is one then exposed to liability under, say, the Honest Services statute (18 USC 666) for defrauding the government out of that pay?

    Probably not, but people have been prosecuted for less.

    • bmaz says:

      scribe, the way it has been explained to me, at this point, even Reid can’t bottle up the bill. The altered procedure and timing was set by a UC (unanimous consent) agreement, and unless that framework is rescinded, passage is pretty much guaranteed, and the process cannot be stopped or delayed sufficiently. And it would take another UC to undo the previous UC, and no GOP member is going to consent to that. The only hope is Feingold-Dodd, but I d o not see any way in hell that they can get 51 votes for that. This thing is over.

      • cboldt says:

        The only hope is Feingold-Dodd, but I do not see any way in hell that they can get 51 votes for that. This thing is over.

        A couple of details, although I agree with your conclusion.

        Feingold-Dodd would pass with a simple majority. Depending on how many Senators are absent, a majority could realistically be as few as 46, and is likely to be 48 or 49.

        A second point of killing off the bill is on the cloture vote relating to final passage. That needs 60 affirmative votes. I think stopping the bill here is a pipe dream, because 16 DEM Senators filed the motion to limit debate, and those 16 are highly likely to vote in favor of the motion they filed. [Nelson (NE), Rockefeller, Carper, Pryor, Nelson (FL), Feinstein, Casey, Mikulski, McCaskill, Conrad, Inouye, Landrieu, Lieberman, Whitehouse, Bayh, and Salazar] There will be at least 45 GOP in favor of invoking cloture; and the 16 listed above isn’t all of the likely DEM “supporters” of final passage. Here are the names of the DEM Senators who filed the cloture motion on the motion to proceed (that are not part of the 16 above): Murray, Johnson, Baucus, Kohl, and Lincoln.

        • emptywheel says:


          Don’t you mean 15 Dem Senators and one “Independent” Senator? I know he’s probably too liberal (and too hawkish) for your taste, but he’s not one of us anymore.

          • cboldt says:

            Don’t you mean 15 Dem Senators and one “Independent” Senator?

            Heheheh. Well, on FISA, you can add in a few others who are “working for the man.”

            I think Lieberman might be okay to party with, but he’s a liar of the first order when it comes to making policy. I think he’s a bit of a dumb-ass, actually. His work on border and shipping security sucks pond water.

  5. brendanx says:

    A little indulgence is due Yoo for his nuts on its face assertion; he had Addington’s nuts on his face.

  6. Mary says:

    I’d have taken that bold a bit further and included “and even the confidential communications of the president must yield to the needs of the criminal justice system” in bold. And maybe underlined.

    This gets to the heart of whether or not you can break the law, then call it “classified” He also backhandedly deals with the issue of whether the President had the privilege of “declassifying” Plame’s status when the IIPA imposed the requirement of having the info handled as secret.

    Where Walker’s opinion will come in as important will have to do with the attacks will be made on the unConstitutional nature of the legislation. Especially if he will end up being the Dist Ct Judge to get the Congressional directive to “approve” the unconstitutonal wiretaps for purposes of granting immunity/amnesty.

    Walker has said FISA is/was exclusive. If he’s the go-to, I think there are some pretty good arguments on the Constitutionality of the statute that he might take to heart. As I said before, IMO, that is where the battleground needs to be right now. Feingold has been willing to fight, Obama is worthless, most of the Democratic party is worthless, Congress is a failed institution, the Dept of Justice has fallen below being a joke and is now just gutter detritus. The only battleground left is the courts and the Constitution and it’s just a matter of how damaged they have become after the betrayals in Congress and Justice.

    Walker did very effectively smack Democratic Liars who have been wandering around claiming that FISA wasn’t exclusive before, but NOW – NOW we’ll have exclusivity. Walker nailed them on that. FISA was exclusive without setting up a huge mechanism for violating the 4th Amendment on Executive whim and without oversight or recourse.

    As a technical matter, OPR wouldn’t be looking into whether or not Yoo’s opinions were improper as much as at whether or not he violated professional standards in issuance of those opinions. Since a lot of their review would go to intangibles like intent – and sense OPR have become just as much useless gutter detritus as the rest of DOJ – there’s no there, there anyway.

    I do think there are other ways that all the merry band of torture advocates can be pushed on more directly and aggressively and I hope some of the lawsuits by individuals can make some of that work, although with el-Masri and Arar’s dismissals, you have to wonder. A criminal pursuit would be much more effective, but McCain won’t have an AG that will do that, Obama is going to rush to explain how it would just be “divisive” to hold criminals to account for torture crimes, including torture deaths. And the pardons will probably either be issued left and right, or there will be only a few issues, for things like the hypothermia killing (where there is no statute) and there will just be the agreement and understanding that Obama won’t pick at the scabs since the Democratic party puss is just as thick and green and ooze under that scab.

    • bmaz says:

      Especially if he will end up being the Dist Ct Judge to get the Congressional directive to “approve” the unconstitutonal wiretaps for purposes of granting immunity/amnesty.

      Oh, I think he is, without any doubt. In normal circumstances. How much you want to bet that the Bush Administration uses some trickeration hokemed up out of the new FAA to claim that they can file their certs and get dismissal in the DC Court? They are working 24/7 as we speak to avoid Walker.

  7. Mary says:

    Yeah – I think they are probably flat terrified of Walker.

    Let justice roll down like thunder is probably not their favorite scripture. Unfortunately, it is the criminal justice front where the courts have the strongest power and when the criminals are the prosecutors and their “boss” there’s not much likelihood that avenue will get used.

  8. earlofhuntingdon says:

    Al-Haramain v. Bush is interesting also because it is a suit against the United States, and wouldn’t therefore be directly affected by the atrocious FISA amendments Congress may be about to pass, which would prohibit civil suits against private parties who aided and abetted this administration’s illegal surveillance.

    Al-Haramain’s suit would be affected in other ways. Some of the Bush administration’s electronic surveillance was patently criminal under then current law. But if Congress now makes it legal, the courts would be loathe to punish individual past lawbreaking by administration figures. Moreover, there would be no point in taking steps to prevent the government from continuing to break the law, since the point of this Democratic Party cave-in is to legalize Bush’s past lawbreaking so they can continue to do the same thing.

    Do even Obama, Reid or Pelosi know just what that behavior is that their party is excusing, protecting and about to continue? Or are they, too, just buying a pig in a poke? The public, which relies on public laws and its Constitution, sure doesn’t have a clue.

    • earlofhuntingdon says:

      Granted. But does that mean that Bush’s people actually told them what they were doing? As an analogy, Bush lamely concluded that he had “to brief” Congress on covert CIA activities, then shifted an unknown number of covert activities over to Special Forces and claimed they were outside Congress’ oversight jurisdiction, a questionable claim but good time-buying gambit.

      I hasten to add I’m not defending Pelosi. I think she’s joined the Goopers in willingly hiding past lawbreaking so that her side can also “Go Do It!” The idea of public or private debate seems too much for these news anchor versions of politicians; real reporting seems wholly beyond them, too.

  9. earlofhuntingdon says:

    Both Democrats and Republicans will claim that Walker’s is only a single District Court opinion from the “ueber-liberal” Ninth Circuit. Until an appellate court agrees with him, this decision will remain an outlier. It’s also not at all clear that this S.Ct. would agree with him, any more than would the Fourth or the DC Circuits. And Bush has gone to considerable lengths either to make the Ninth Circuit less liberal, or to break it up so that it has less prestige and reach.

    So far as halting the march of the Democrats over their lemming-cliff into the Sargasso Bush Sea, I’d say we’re already into injury time and the Goopers are a few goals up.

  10. cboldt says:

    Walker’s opinion is interesting, and can be played various ways. Summarizing comments I made elsewhere (all off the top of my head, so be gentle with the criticism):

    – The plaintiffs are losing under the law, so Congress shouldn’t be concerned about either massive financial losses to telecoms, or disclosure of state secret. IOW, there is no need for immunity, things are working out.

    – The statutory remedy is illusory. Congress pulled a fast one on the public back in 1978, and continues to, by providing a statutory remedy that can’t be exercised, even if the government surveillance is extra-statutory (one caveat, if the government brought criminal charges under 1809, and named “aggrieved persons” in the course of the criminal trial, those “aggrieved persons” could “tag along” on the criminal trial. — Would never happen, and like the remedy in 1810, it sits there in theory, pretending to be a check against a runaway snooper). It’s like using a stuffed dog to perform watch duty.

    • earlofhuntingdon says:

      It’s like using a stuffed dog to perform watch duty.

      Sounds like the sort of thing Holy Joe would favor. If CongressCritters are so happy for Uncle Sam to have unfettered access to all our e-mail and telephone communicaitons, what are they doing to protect their array of silly behavior, their Capitol Hill cavorting and their money gigs for lobbyists and friends?

    • bmaz says:

      I may or may not agree with you conclusion that the plaintiffs would lose on the law. If you accord full state secrets hiding the ball as the law (and I guess you do really) that may be right. I dunno, but I want the discovery out of these cases, and I have an aversion to citizens having their day in court (even if it will ultimately be a losing one) usurped by craven criminal politicians covering their own ass. And I have a hatred for the direct gut shot to the perceived strength of the bright line Constitution.

  11. cboldt says:

    The statutory remedy is illusory.

    Which may explain why Congress is so eager to get the cases out of Court. Congress wants the remedy to sit there as a device to fool the people – but now the public is informed that the remedy is toothless, as designed and intended by Congress.

  12. Mary says:

    16 – No, you’re right. We don’t know if he actually briefed them on what was really going on. What makes me tend to think he did is how little Pelosi and Rockefeller have wanted anyone else in Congress to know what was going on (they were not involved in pushing for full briefings – as contrasted with Harman who gets a lot more grief from leftish blogs in general) and they have not wanted real investigations. They both have bent over backwards to make sure that what was going on hasn’t come out.

    That’s why I tend to believe they were right in the middle of it and won’t have any deniability if the story comes all the way out. But that’s just may distrustful gut reaction, not a fact in sight to hang it on.

    cboldt – I completely agree with the illusory nature of the statutory remedy. The only way it ever would even come up would be in something like a Keith case setting, where instead of what we have now in DOJ you had lawyers with the integrity of a Mitchell (I know, hard to believe that Mitchell is the baseline integrity standard that no one in DOJ can meet these days, but there it is) to actually comply with court orders and cough up the evidence, rather than assist in it’s destruction or in bogus claims of state secrets.

    OTOH, maybe a case like Wright’s if he would push on it, would be a sufficient frame.

    And its not just the illusory remedy, it’s the illusion that a true, independent court and judicial review system is involved as well. That just isn’t there.

    OTOH, if there were an AG to pursue the criminal charges, then the civil penalties would start to line up as well, but that’s about the only workable scenario. And given that the AG and DAG were signing off on the programs, how does that happen?