Good Question

The Bush Administration is in Vaughn Walker’s courtroom today, trying to convince him to just give the telecoms immunity with no further scrutiny.

But given the questions Judge Walker has posed to the Administration, it looks like it won’t be that easy. For example, there’s this question, which highlights just how nutty this retroactive immunity is:

What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? 

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know–separation of powers, which says that the courts have the ajudicatory function?

In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.

52 replies
  1. WilliamOckham says:

    Those are good questions. I especially like this one:

    To the extent that section 802(a)(5) requires dismissal of an action against a person who did not provide assistance if the Attorney General submits a certification under that provision, is the Act simply one
    that provides the Attorney General unlimited discretion? Inasmuch as the Attorney General can provide immunity under section 802(a)(5) to a person who did not provide assistance, is not his authority under the FISA amendments essentially boundless?

    [my bold]

  2. klynn says:

    If I didn’t know better, I’d say EW and bmaz must have run into someone while going for coffee…THOSE are D—- good questions.

    The kind of questions which leave Addington, among others, sputtering, ” Your Honor but, but, but…”

  3. Professor Foland says:

    So there seems to have been a folk belief that once immunity is granted, that it cannot be revoked, as this would cause an ex post facto problem. (I’ve never been 100% clear whether this is merely a folk belief or if there is in fact such an epf problem or not.) Two questions:

    1. Does the ex post facto problem for revoked immunity apply to civil actions, or only criminal?
    2. Does the ex post facto problem attach if the original grant of immunity is later ruled unconstitutional?

    • bmaz says:

      Ex post facto generally is determined by what the status, criminal or not criminal, was at the time of the act. Here, the acts were presumptively criminal (or no immunity would have been necessary), so after the fact decriminalization that is then reversed should not present any ex post facto issues.

  4. klynn says:

    Question 8 gets to the heart of a post bmaz did on FISA and telecom immunity. I cannot find the bmaz post on it though…

    Inasmuch as the plaintiffs have a claim against the
    government for allegedly unlawful surveillance even after
    enactment of the FISA amendments, are not the claims
    against the telecommunications carriers displaced by the
    claims against the government?

    My bold.

  5. klynn says:

    Question 10 is great. “…go beyond authorized…” works in either direction on a timeline but many would think “after” as opposed to “before”. This gets to the heart of the issue about “when” authorization happened and did the AG authorization cover illegal searches before legislation was in place.

  6. THATanonymous says:

    Since congress does not have the power to grant pardons, and since this is clearly a pardon after the fact of explicit criminality, doesn’t the attempted use of this law without (at least) presidential intervention die on its own (de)merits? Separation of powers indeed!

  7. WilliamOckham says:

    The fact that this is going to get held over into the Obama administration gives us the opportunity to put some pressure on. As I recall (and bmaz can correct me if I’m wrong), the law doesn’t require the AG to do anything and is silent on whether or not the AG’s cert can be withdrawn. I think Sen. Leahy should be working up that hypothetical question now. Something along the lines of:

    Mr. Holder, if you were AG and you believed that the Bush/Cheny warrantless wiretapping program violated the 4th amendment rights of innocent Americans, would you be willing to withdraw that certification?

    • bmaz says:

      Yes, that is certainly right as far as I understand it. But Holder, Sunstein and Obama decided their position on this already and i don’t envision them changing now. I expect Holder will “honor” the certs filed. Because it is the easy thing to do to leave the sleeping dogs be. DRational is, unfortunately, probably right @10

      • WilliamOckham says:

        Let me spin a scenario where we make it harder for them to let sleeping dogs lie.

        In Holder’s confirmation hearing, a Senator who really cared about this could use the Socratic method to draw him out on the issue:

        Leahy: You believe in the 4th amendment, right?
        Holder: Yes, Senator, of course.
        Leahy: Irrespective of what the previous Administration did, you are committed to protecting the 4th amendment rights of all Americans, aren’t you?
        Holder: Yes, blah, blah, blah
        Leahy: Now, I know you don’t have all the details on the program as it exists now or as it existed between 2001 – 2004, but will you commit to us that any program that the Obama administration conducts will be consistent with the 4th amendment.
        Holder: Absolutely.
        [Insert some back and forth here]
        Leahy: So, you wouldn’t certify conduct that violated the 4th amendment, would you?
        Holder: On a going forward basis, you can rested assured… blah, blah, blah
        Leahy: Not just on a going forward basis. Surely the 4th amendment isn’t something that depends on which party is in power. Should Americans expect the government to protect their rights all the time.
        Holder: Of course, … [tries to weasel out of it]
        Leahy: Will you at least commit to looking into this and reporting back to us on your assessment of the program’s constitutionality.
        Holder [thinking he’s dodged the bullet]: As you know Senator, we have a lot of work to do to repair the Department’s reputation, but we’re committed to working with the committee in this matter.

        The key is to get a commitment to examine the issue. The new administration needs a way out if the political pressure should get turned up. That can only happen if we get some good leaks and some congressional action. I’m hoping the leaks come after Jan. 20. Leahy’s still making the appropriate noises, although it’s not entirely clear he’ll follow-through. I’m not holding this out as a likely possibility, but it always pays to be prepared for good fortune.

      • BayStateLibrul says:

        It’s too bad that Obama doesn’t have a bro like JFK had.
        We could avoid all this nasty Rich pardon shit, and elevate Justice to where it belongs.
        In a few months, we will be live-blogging the Holder nomination for clues.
        Until then, healthy debate.

        • bobschacht says:

          “…that’s what I get for not reading the whole thread before chiming in”

          Ah, my eternal lament. If I read the whole thread before chiming in, I inevitably wind up in EPU-land, so I feel like I’m talking to an empty room.
          Some of us have jobs that require attention, and that makes it impossible to keep up.

          So I hope folks here don’t mind the drive-bys. That’s the best some of us can do.

          Bob in HI

    • Leen says:

      To all Learn so much here, thanks for your sense of responsibility towards Justice.

      WO or are you willing to hold those responsible for knowingly violating the 4th amendment accountable? Senator Leahy, Whitehouse and a few others say things that give me hope that we may still witness accountability. Sure takes a great deal to get any of the Republicans Justice Juices flowing.(like lies about a BJ…pathetic)

      Mary “1 – that is a great question too, and it partly ties to my argument on equal protection. How do they “keep” the criminal provisions AND civil fines provisions, but then allow the administration to carve out people who can violate without being subject to those provisions and, more importantly – segments of US citizens (those who the AG wants to have spied on with impunity and in violation of the 4th amendment) who are not going to be protected by those provisions?”

      Proving once again that different laws or no laws apply to the ruling class that apply to the peasants.

      Some peasants are watching and listening closely (so are some of their children) as to whether the other branches of government hold the Bush administration/ telecoms etc. ACCOUNTABLE

    • phred says:

      WO, that’s a good point, but I sincerely hope that no court would leave that sort of discretion up to any AG. If we simply leave it up to Holder to withdraw the certification or not, then there is nothing standing in the way of the next Ashcroft/Gonzales/Mukasey that comes down the pike.

  8. drational says:

    Hey EW, go easy on Holder. He needs to save his energy for being the firewall against TelCo lobby influence at justice.

    Just like he was against Mark Rich’s lobbyists:

    From NY Times:
    “A person in that situation [fugitive from prosecution, Mark Rich], Mr. Holder advised, should “hire a lawyer who knows the process, he comes to me, we work it out.”

    All evidence suggests that Holder will be a staunch defender of the constitution against special interests. His first order of business will be to reverse the TelCo immunity. If you don’t believe me, ask the Judiciary Committee Republicans who gave him the green light:

    Republicans on the Senate Judiciary Committee were consulted to gauge whether the pardon would prove an insurmountable hurdle.

    • drational says:

      As in, you can bet your ass that all the hard questions about TelCo immunity and FISA have been asked and answered, and you are not gonna like those answers so much. But lucky for you, you won’t have to hear them because of the Kabuki angst over the Rich pardon that will be the extent of the questioning from the Republicans.

  9. Arbusto says:

    Though the Rethugs may put roadblocks in Holders path, don’t you think the DINO’s will bend over and hand Obama the petroleum jelly.

    On the other hand, it’d be interesting if the FISA law gets booted by the court as Holder said one of his priorities is corporate criminal activities. What’d he do then? Of course since the Telecons paid big time to the DINO’s, I’m sure next session, a new ex post facto law will be promulgated.

  10. Mary says:

    3 – It’s not immunity until a court says they were immunized by it.

    argh – I can’t get around to reading any of the links now, but thanks for this post. The only thing I’d have liked better than, “is the Attorney General performing an adjudicatory function” would have been “is the Attorney General performing an obstruction of justice” *g*

    1 – that is a great question too, and it partly ties to my argument on equal protection. How do they “keep” the criminal provisions AND civil fines provisions, but then allow the administration to carve out people who can violate without being subject to those provisions and, more importantly – segments of US citizens (those who the AG wants to have spied on with impunity and in violation of the 4th amendment) who are not going to be protected by those provisions?

  11. Mary says:

    10- I don’t think anyone really expects that Obama could, after his own stand on the FISA legislation, send up someone who is going to say that it was damned unconstitutional madness and nonsense – he can’t send up someone who will be saying in his confirmation hearings that Obama is either a politician who sells out the Constitution and country over some “compromise” legislation that helps him politically, or just too stupid and naive to have understood the impact of his actions. So the Holder issue is kind of problematic at that point, isn’t it?

    It would be interesting, too, to see Walker delay his decision until Bush is bye bye, so that if he rules against, the decision to appeal will be Obama’s. He really should – that makes the newbie have to fish or cut bait from day one on who he really is. I can make a guess on who that it, but my guesses aren’t worth a damn.

    • phred says:

      I agree with you completely Mary. Obama picked his side with his FAA vote. Expecting him (the Executive Branch) or Congress (feh) to demand any changes to their usurpation of the courts’ authority is ludicrous. The question is, will the courts defend their own prerogatives?

  12. plunger says:

    At the least, it appears that the judge is making them define their own criminality, in context. The context is: “never before in history.”

    It’s not just about the law, or the separation of powers, it’s about the Constitution – and whether it’s still relevant – or should simply be shredded in a live, pay per view television event.

    At least then we could all stop pretending that we still live in the same country where we were raised.

    Speaking of abuses of power, who gave anyone the authority to burn over $7 Trillion of your money?

  13. DeadLast says:

    Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.

    You put a smile on my face. There is hope yet for citizen-led democracy.

  14. anwaya says:

    Oh, I think these are fun questions.

    1: Yeronner: Shrub, Dick, Gonzo and their gangsta crew are looking for a ‘get out of jail free’ card. Who said it has anything to do with National Security?

    2: Er, nope. Wait a minute, I think I’ve got one… oh, no, that’s an old laundry stub. OK. You got me there.

    3. Justice? You want justice? Let me explain. The golden rule is: he with the gold makes the rules. And boy, do we have the gold!

    4. See 3. Don’t you see? They’re little people, not big powerful manly men and corporations.

    5. I still have that laundry stub round here somewhere, that should be enough.

    6. My car is parked in a red zone outside, and the Attorney General is going to certify that I have immunity from parking tickets, even though I’m not a telco.

    7. Yes. What’s your point?

    8. I don’t know, and I’m not telling. Eh –

    9. Yeah, it’s neat. When it comes to Separation of Powers, that’s one power we’d like to keep separate.

    10. He shakes out a little pixie dust and waves his wand over it. And suddenly Cinderella can go to the ball in a pumpkin. Full of papers.

    11. okfinecallmebai

  15. perris says:

    I wish someone would ask if the telecoms are given ownership of the information they’ve stolen since they have their ‘retro-active immunity”

    and the follow up;

    “if information has been stolen and a person loses property (IE an invention, manuscript, proprietary contact information), what redress do those who’ve lost that property have since the telecoms are gaining immunity”

    that’s what I’d like to see as it seems the only thing right wing nuts understand is someone stealing their property

  16. Mary says:

    21 – I think that makes for a really interesting question and point. I wonder if the existing complaints ask for any remedy equivalent to a common law demand for the return of information stolen, purging of records, etc. Pretty interesting perspective.

  17. Leen says:

    Judge Walker “but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision?”

    How did congress vote on “retroactive immunity” for completed acts that “allegedly” violated constitutional rights” if they did not even know the full extent of the program?

    Are there any “precedents” for this type of enactment?

    • skdadl says:

      Regardless of party, DoJ always vigorously defends the constitutionality of statutes.

      Hmmn. Now, I am NAL and I’m an alien, so I’m just running on logic here and I sit to be corrected, but that sounds illogical to me, given what I know of your structures of government.

      DoJ is executive. Congress is legislative. If I’ve seen anything over the last few years of reading you guys at EW’s place, it has been a DoJ that often does not vigorously defend the constitutionality of many things, including the constitution itself.

      • scribe says:

        They are (or have been) selective in the extreme lately. But defending the constitutionality of statutes is one of DoJ’s core missions – Congress has only limited capability to litigate and then in its own behalf, not the behalf of the United States. DoJ litigates in the United States’ behalf.

        Also, for example, when the issue of alleged unconsitutionality of a statute, rule, regulation, or whatever of the United States becomes an issue in a lawsuit between two private parties, they are both required to notify DoJ, give DoJ time to decide whether to intervene, and then respond to what DoJ does. That’s written into the Rules of Civil Procedure.

      • bobschacht says:

        That’s what is so distressing about the status quo ante. Not only was the DOJ in active subversion of the Constitution, but Congress did precious little to defend it, despite their oath of office, and in fact in collusion with the Executive Branch, seemed at times to subvert the Constitution.

        Does the ACLU have a Congressional score card?

        We are left to hope that the Courts, at least, will do what it is supposed to do.

        After Watergate, I felt energized and proud of our Constitutional system. After the past 8 years, I have lost confidence. The audacity of my hope is that Obama really does believe in listening to the grass roots, and really does believe in the Constitution.

        Bob in HI

    • WilliamOckham says:

      They would say that, of course. It might even be true. On the other hand, there’s a lot more at stake than the constitutionality of the statute. Everybody knows that Team Obama could take a wide variety of different tacks.

  18. lllphd says:

    does judge walker’s question have similar bearing on the administration’s defense of their position on torture, that the DOJ said it was ok? i mean, is that not the jurisdiction of the courts, not the DOJ??

  19. Mary says:

    34/5 – Typically, DOJ is either doing the challenging (which they do from time to time) or doing the defending. Since they theoretically (like Madonna is a theoretical virgin) represent the United State Government, they defend the legality of statutes when there is a challenge, unless they are engaged in the challenge (which can also happen). What is more interesting, imo, is the issue of appeal and how far to push the appeal. At some point, this is where discretion pops up.

    Something that Walker’s question 8 brings to mind, too, is the really weird situation vis a vis the defendants in the suits. IIRC, both the telecoms AND gov are defendants. So basically Congress is saying that gov can give its co-defendant immunity based on secrecy – I’ll make you immune from prosecution as long as you don’t reveal what you and I did.

  20. Funnydiva2002 says:

    Thanks, EW. Glad to hear there’s a judge out there still holding “W” mal-administration feet to the fire.

    OT, Bmaz, did you and Glenn Greenwald ever have a discussion about the potential Eric Holder nomination? He’s got a post up dealing with the Rich pardon…again.
    I ask because he seems to be good about engaging in a dialogue with those who disagree…and because I think you make really good points about EH’s work for Chiquita.


  21. bmaz says:

    I tend to think that that is indeed what Obama will do because it is the path of least resistance for him and he has already caved on this issue. However, the statements of this jerk off Bushie in court today mean absolutely fucking nothing. Of course he is going to say that. But he has no basis in knowledge from the Obama team that his is the case, he is just spewing out his rear. His predicate statement that the DOJ always backs up Constitutionality is complete fiction if you have paid attention to the Bush DOJ. Just take a gander at their responses to environmental and gun laws that have been passed both by the Congress and the states. They have been prodigious challengers of Constitutionality. Just more blatant dishonesty in an open court by the Bush DOJ.

    • rosalind says:

      …which of course is this post just cross-posted next door. never mind.

      i’m hereby suspending my commenting privileges for the day.

  22. al75 says:

    Walker is no progressive. From the SF Chronicle 2004

    He has been unorthodox as a judge, requiring law firms to bid for the status of lead counsel in securities class-action suits and publicly calling for legalization of drugs.

    His rulings have overturned San Francisco’s voter-approved limits on bank ATM fees, dismissed a slave-labor suit against Japanese companies by former World War II prisoners of war and allowed reporters to watch all stages of lethal injection executions. He dismissed a suit by anti-logging protesters whose eyes were swabbed with liquid pepper spray, a decision later overturned by an appeals court; and approved Hearst Corp.’s purchase of The Chronicle, despite Walker’s reservations about the Justice Department’s antitrust review.

    • bmaz says:

      It is not necessarily accurate to rate a judge on his rulings. In each of the cases you cite, there may have been a facts and/or procedural states that demanded a ruling contrary to what you would want. For instance I think Ted Stevens is likely guilty, and I would love to have him convicted, but if I were the trial judge in his prosecution, i would have dismissed the case with prejudice for prosecutorial misconduct. I would have loved to see Valerie Plame win her case, but I can see quite clearly why it didn’t pass muster. Does that make me not a progressive, or does it mean I follow the law and facts where they lead, which is what a judge is supposed to do?

      • MadDog says:

        Judge Walker would be doing everybody (but the Bush Administration) a favor by sliding any further proceedings out past January 20, 2009.

        I’m not saying that an Obama Administration would flip on the FISA Immunity issue, but it would surely make for some interesting drama in public view.

        • LabDancer says:

          I very much expect your wish for everyone to come true.

          ew’s post is both timely and correct, but insufficient as to its singularity.
          Taken one at a time, each of the eleven questions posed by Judge Walker are “good”; and he could have posed dozens, even hundreds more, each as “good”, and still not exhaust the subject. More from most, perhaps all of us here could be just as “good”, and maybe some better, without any regard to whether or not each of us might feel obliged to preface the same with “IANAL”. Considered together Judge Walker’s questions are quite heady stuff; but, again, many here could do as well, and some perhaps even better.

          Why? It’s the subject matter: The more one considers the nature of the claims, the wording in the FISA immunity bill, the words in the Constitution, in particular the 4th Amendment, the nature of rule under law, and the purpose for which the 3 different branches of the government exist, the more difficult it becomes to accept that Congress could come up with ANY bill that properly disposes of these claims.

          Note in particular that Judge Walker gave the lawyers involved in the hearing the impression that he has not even read AG Mukasey’s “certifications”, so much so that the government lawyer appears to have made a special point of reading to him that part of the bill that superficially appears to ‘oblige’ him to read it. I cannot believe that is anything other than deliberate on Judge Walker’s part; further, I would expect nothing will happen to compel him to read it, at least before the Obama inauguration and until a designee of the Obama-appointed AG appears in his court and is able to satisfy him that he must.

          I don’t suggest this holds true for all judges, but I am convinced that there a lot of judges out there who are quite looking forward to finally being able to fence with a president who is a constitutional lawyer and lecturer at a real law school, albeit by proxy, as opposed to dealing with the lawyers representing a nitwit with a mandate.

          What William Ockham posted at 39 is so, and thus the progressive and liberal parts of the blogosphere have an opportunity to play a part in what the Obama administration’s DOJ lawyer will say next to Judge Walker – including, but by no means restricted to, as suggested, pushing questions on Senator Leahy and others on the Senate Judiciary Committee [others, of course, would include Senator Whitehouse].

          One ‘voice’ that we can’t expect to hear in the ’sphere is Professor Marty Lederman, lately of Balkinization, and now “rumored” to have gone to ground pending the completion of the vetting process for his return to the DOJ OLC – which is not to say he’s lost his voice.

          What particularly eases this task is that Judge Walker in essence is saying to all of us: I’m not looking at anything that isn’t readily available to each of you.

  23. FormerFed says:

    A very good set of questions. Too bad some of you can’t leave it at that and not tie it into the Holder nomination.

  24. JohnLopresti says:

    LegalTimes described separation of powers doctrine as in ’somewhat of a fluid state‘, in a recent bulletin concerning a seminar in which exSG Clement appeared. I wonder how Holder, Craig, Obama, and other vetting principals evaluate candidates for the next SG.

  25. JohnLopresti says:

    How about simply asking JPML to let judge Walker address Hepting separately from the other cases which JPML added posthaste as judge DiggsTaylor neared publication of her opinion in late summer 2006 on the academics chilled speech case in EDMI; though the link provided simply is one lineitem without background. I wonder, too, about making public how the entire process of the bundling occurred, as well as open announcement of the specifics for the unbundling. Seems kind of like dereg for the courts, something the telcos could understand from personal experience, so to speak.

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