The al-Haramain Dates

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.)

In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit.

Remember, these lawyers have seen the document indicating they were tapped–which was probably a summary of taps and contents of those taps.

I’m guessing, then, it is not a mistake that the lawyers are honing in on these dates. That is, I’m guessing that these specific conversations were among those described in the document that al-Haramain once had in hand. Which means that when Walker reviews the document, it’ll be affirmation of precisely the argument al-Haramain makes here.

It’s easier writing these things, I guess, when you’ve seen the answers to the test.

But that’s not the really delectable part of the description of these calls. Look at this sentence.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.[my emphasis]


On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11. 

Thus, even if the rest of the program were somehow deemed legal (which it wouldn’t be, because it violated FISA, which is the question at hand), it would be not be deemed legal on March 11, 2004, because the program didn’t have sanction from the Attorney General.

Al-Haramain has reason to believe, you see, that one of the conversations wiretappped was tapped on the day they know the program was illegal under any interpretation of the law.  And, if I’m guessing correctly on why they honed in on these conversations, Judge Walker will have proof to that fact in two weeks time.

  1. WilliamOckham says:

    And they mention dates in Feb. 2004, too. That means they have before and after the DOJ semi-revolt. Walker may get to rule on the differences…

      • klynn says:

        I cannot remember…Do we clearly know irt the hospital who made the “call” from the WH to Mrs. Ashcroft?

        About 8 p.m. on March 10, Comey said that his security detail was driving him home when he received an urgent call from Ashcroft’s chief of staff, David Ayres, who had just received an anxious call from Ashcroft’s wife, Janet. The White House — possibly the president — had called, and Card and Gonzales were on their way.

        Furious, Comey said he ordered his security detail to turn the car toward the hospital, careening down Constitution Avenue. Comey said he raced up the stairs of the hospital with his staff, beating Card and Gonzales to Ashcroft’s room.

        -Washington Post

        If Bush didn’t make that call, then it may not be just Bush’s throat they are after…

        • skdadl says:

          Comey testified something close to this when asked that question: “I have some recollection that the call was from the president himself, but I don’t know that for sure.” That’s from memory, but it’s pretty close.

          • Peterr says:

            You’d have to get it from Mrs Ashcroft, though, for it to be airtight. Comey’s answer when asked about this would be hearsay, as he could only relay what he recalled Mrs. A telling him about the call.

  2. WilliamOckham says:

    I also think Walker pulled a little jujitsu on the gov’t for their stalling on this case. Now they are in totally at the whim of either career DOJ or Obama appointees to pursue the case. I don’t think the Bushies can even get this to the Supreme Court before Jan. 20.

    • emptywheel says:

      And I’m not sure they want to. After Boumedienne, do they really think they’re going to get a favorable ruling? Not least because I can’t imagine Scalia is going to wipe out the power of Article III just as a Democrat takes power.

    • bmaz says:

      WO I think they could get to SCOTUS before the 20th; I agree with EW that they are not necessarily going to want to go there. They might have three votes, but I agree that at this point, I don’t know if Scalia is one of them.

      The govt. of, by and for the Bushies has a problem brewing here. A big, fat fucking problem. Delicious isn’t it?

  3. pdaly says:

    What a great developing thread.

    Great irony, too, that a supposed terrorist just might be the key to reinstating our constitutional protections, while an out-of-bounds president whom took a sworn oath to protect these very principles tries desparately to hide this unravelling garment of lies.

  4. ApacheTrout says:

    I have a hard time believing that the government will be able to “locate” this document. When faced with the knowledge of an impending legal defeat that invalidates their arguments, the Bush Administration has shown a willingness to change the game (i.e. the Padilla charges). If this document incriminates the BA (or more specifically Bush himself) in the way that you suggest, then a mistrial or contempt of the court would be suddenly become very attractive.

  5. WilliamOckham says:

    Just as a reminder, the FISA statute has civil and criminal liabilities. When ew says that al-Haramain is going after Bush personally, it includes the very real possibility that Bush could be personally liable for civil penalties. To wit:

    (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
    (b) punitive damages; and
    (c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.

    • emptywheel says:

      I’m just trying to figure out how we get to the criminal penalties.

      Because I’m thinking that Bush could use about 5 years in the pokey. Or maybe eight.

      • Peterr says:

        You and a bunch of others, EW.

        (Several of those others have the power to depose witnesses, subpoena documents, and compel testimony. Of course, that only matters if they decide to use it.)

      • WilliamOckham says:

        I’m thinking that a civil suit is the best path to criminal penalties. First, the plaintiffs would get discovery. Then, if they win, Obama and Holder would be hard pressed to avoid appointing a special prosecutor.

        • bmaz says:

          Remember the statute on the juiciest charges, the dead period after the hospital visit, runs out in a little more than two months.

          • WilliamOckham says:

            I don’t know about that. According to the statute:

            A person is guilty of an offense if he intentionally—
            (1) engages in electronic surveillance under color of law except as authorized by statute; or
            (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

            Walker’s opinion seems to agree that the information from the surveillance was used at least as late as September 9, 2004 in the terrorist designation action.

      • LabDancer says:

        See, this is the thing.

        There was a choice to respond either to you at 12 or bmaz at 33, and I don’t want to snub one over the other: but this being your house, bmaz will understand. Anyway, this is what bmaz wrote:

        “Remember the statute on the juiciest charges, the dead period after the hospital visit, runs out in a little more than two months”

        So all things considered, what’s going on here [including withholding from Team Obama some number of OLC opinions, and I would think other legalish opinions as well; and including a big fake overblown PR attack on Holder at the SJC confirmation hearings, and probably also later in plenary session – which will have a hell of a lot less to do with the genuinely questionable aspects of Holder’s record than about this here problem] is a classic case of running out the clock, or ROTC, with Judge Walker being acute to that, while realizing himself to be in a role beyond that of a mere referee, by virtue of the terms of his office, including its oath.

        This entire discussion is predicated to some extent on that March 11, 2004 date, which I expect everyone realizes is in serious jeopardy of being ‘lost’, in some way, to being used to underpin an indictment. [And not incidentally, all hail Ms E Wheel for getting us to this point once again: it is, of course, typical of why we come here, with the knowledge that this sort of eureka discovery from her happens again and again and again.]

        But, as Ms E Wheel discussed at length over a number of posts around the time of Comey’s guest appearance before the SJC, March 11 was at or near the COMMENCEMENT of a period of continuing illegality, which, despite I’m sure the best of intentions on the part of Comey, Goldsmith, Philbin, Mueller et al, went on for some period of time thereafter – and not just for a few hours. Days? at least; weeks? probably; months? possibly.

        So that extends the time over which ROTC has to run, and with each passing day makes that strategy more precarious.

        For how long, though?

        William Ockham posits that its ‘extended’ [or maybe that should be its “refreshed”] on September 9, 2004, with the use of [presumably] known illegal fruits.

        Now, that’s true, but its not necessarily of the same character as what happened on March 11, or for whatever time it was that AlGie’s nakedly lawless period played out. Among other things, there are a number of lawyers in the DOJ and a number of players in the WH sweating bullets and fingering rosaries are during that period. Whereas there may well be a disconnect between the end of that period and the subsequent period, including but very likely not restricted to September 9, when the FRUITS of that earlier lawlessness get eated. I’m not just meaning to refer to the sense of relief that probably came over all those sweaty lawyers and players, as the lawless period closed out and the demands of each busy day larded over their anxieties about it [although those are clearly factors]; I meaning to refer to how information and intell gets transmitted through a set of systems of which Darth Dick’s is one, and moreover the one that wafts through all the other systems like fragrant poison gas.

        Point being: I can foresee a lot more deniability being available for those involved in the September use of the rotten fruit, than I can for the Gonzo lawless period.

        All that could well be generate a lot of happy work for some special prosecutor; but for me the more intriguing aspect, the part that would keep me smiling day after day, is the cover up. By way of analogy, recall Ms E Wheel’s lovely mini-series on the Dickster’s notes, focussed mainly on his note to then White House spokes Spotty Mac about the plight of poor Scootzie given Spotty’s Exoneration of Krove. That effort at cover up, pathetic for its being so blatant and so pointless, greatly exposed Dick, in a way that [speaking for myself of course] convinces one that Dick had indeed sent little Scootzie off to his rendezvous with Judy Judy Judy on July 8, 2003 to execute on a specifically detailed hit job.

        Point being: the sort of classic Ms Marples ‘return to the scene of the crime’ that cover ups entail could – well, I’ll say undoubtedly – extends the period of exposure to this al-Haramain fiasco, to the point that, in contrast with March 11 specifically, ROTC is so far less likely a strategy to work that it actually starts to work counterproductively for those using it.

        And of course what makes the cover up so dangerous here is how much of it has had to involved the DOJ – which I find such sweet, sweet irony for an administration that from day one designed a system to funnel all real world contacts and exposures through lawyers who had to struggle with protecting their clients’ privileged communications.

        • scribe says:

          I solved that problem weeks ago.

          What Obama has to do is this:

          On Inauguration day, before going over the WH for coffee with the Bushes and thence to the Capitol for the festivities, he has his staff prepare and present to him for his signature a set of appointment documents. These would be to appoint all his cabinet secretaries and, in the case of DoJ and intel community subordinate appointments, the sub-cabinet level people, too, under the “acting” statute. You’ll remember Bushie used that power to get around having people even show up for confirmation hearings, when it was too clear they would get hosed down. Obama would make those appointments as “acting” to be effective at one minute past noon on January 20. Sign them, then hand them out to the staff to be given to the putative secretaries and held in their pockets.

          Under the “acting” statute, the officeholders have about 7 months to be confirmed by the Senate and, if they are not, then they would lose the appointment. That’s fine. The Repugs can filibuster all they want – no one can stay awake and talk for seven months straight. But, should it appear that an appointee might not be confirmed, then Obama can ask Reid for a recess in the Senate – I suspect there is one coming between now and August – and then appoint the disputed nominees through a recess appointment.

          The points of getting the people into the offices through the “Acting” model are several-fold:
          1. eliminate the efficacy of a filibuster;
          2. ensure continuity of government;
          3. prevent the bureaucracy from setting the agenda through inaction and inertia;
          4. avoid blowing statutes of limitation;
          5. show the Republicans to be obstructing fools and the Dems more interested in the good of the country than in dealing with Rethuglican bullshit;
          6. avoid problems (deliberately) left behind by the outgoing administration from blowing up;
          7. remind people that “elections have consequences” is a phrase which operates two ways.

          Not a problem. Just takes a set.

        • bmaz says:

          Yeah, I would like to point out that there are potential capabilities on continuing conspiracy grounds, maybe an argument for tolling statutes for deception (real tough), etc.; so even where a statute has theoretically run, it is not necessarily the end of the road. However, it does make it more problematic, and injects all kinds of effective defense arguments, when the statute on the specific underlying crime presumptively has expired.

  6. wavpeac says:

    This is all great. Hopefulness that accountability might occur exists. But I hate it that in my ears I can already hear the spin. Bush is going to go to jail for not protecting a terrorist!!…for not giving the terrorist his “rights”. (the facts will not matter) I hate how easily the right will spit on the foundational values of our country using fear (prejudice-small uninformed, emotion mind, flat land thinking) to validate this.

    And how many people think just like bushco. “All is fair in love and war”. No…how many people can be manipulated by the likes of bushco…no where inside of me do I believe that bushco doesn’t know of the crimes they have committed. They may rationalize them, but deep down they have all lived too much life and been party to too many lies not to know, at least on some level, that their behavior violates the best of humanity.

    But those small voices won’t matter, because the world will hear accountability and our integrity will hopefully restored regardless of the frenzy that bushco might try to create.

    • emptywheel says:


      Bush will go to jail for violating attorney-client privilege, and unfairly abrogating the rights of lawyer who we have no reason to believe did anything wrong besides doing their job.

      Remember, it was the lawyers in the US, not the Haramain members. This suit is being brought by the lawyers, not by Haramain itself.

      • wavpeac says:

        Okay…so you are saying…that it is safe to think that we may be able to refer to him as a “criminal” and that it would be a fact at some point in my life time? (tearing up, choking…) okay…letting guard down slightly.


  7. JimWhite says:

    This is big stuff, folks. EW has unearthed another treasure trove through her careful reading.

    You can Digg it here.

    Thanks, EW. If this does indeed put W behind bars, we have to plan a massive street party, because all Pups will want to dance in the street.

  8. scribe says:

    You can be sure the lawyers know exactly what was in that intercept, when, and what was said.

    First, they doubtless have contemporaneous billing records which would for each call show something like:
    3/10/04 [file number] t/c with client re: [subject] [number of hours and tenths]

    And then there’d be “prepare for client conference”, “draft memo to file re client conference” and a whole bunch of things.

    Some billing programs even show the exact time of day, down to the minute, for the activities. The old way – on paper – you’d have a time sheet broken down by the tenths of hours.

    This is how you get paid – if you have to make 2000 or 2500 or 3000 hours a year (To keep your job), you will work to capture and record every last one of those elusive tenths of an hour.

    Then there’s a memo to the file, recording the conference and what was said. I would suspect – both to protect against misunderstanding and future problems – the lawyers involved drafted detailed memoranda to the file about the conference. I would suspect that they had also drafted memoranda prior to the conference, so they could be sure to cover all the points that needed covering, hit all the issues that needed hitting, and communicate accurately to their clients all that needed to be communicated.

    How sweet would it be if part of the intercept revealed that the advice they were giving their client included “you have to assume, now that your are a potential designee, that all your electronic communications are being tapped and recorded”?

    The thing is, you can be damned sure that if I (or any lawyer) had a client conversation about the client’s problems and then a couple months later I get discovery which includes a document reciting what I told my client in a such a (confidential) conference, I would remember both the contents of the intercept and know that someone had to have bugged the conversation. I would know -for a fact – that some guy like this Stasi captain had been listening to my conversations a la The Lives of Others, and typing it all up.

    That’s the kind of thing which cannot be forgotten.

    And, the Judge will be able to compare the contemporaneous lawyers’ notes and files with the intercept – and see that they reflect the same thing.

    The USG’s seriously fucked.

    • emptywheel says:

      Which is also why they talk about the logistics of billing, I imagine.

      That is something that ONLY could have come from that conversation. And they no doubt have reason to believe the govt knows abotu those details.

      • scribe says:


        Remember – if you’re billing by the hour (and the sort of case in which the foundation was involved, realistically, can only be billed by the hour*), then the way you get paid is to keep your time.** And you have to.

        Moreover, and I omitted this in the initial comment posted (I had written it but then it got zapped) – the lawyers no doubt got a phone bill for the phone calls. And, as you all know, the bill shows the city, state and country called, the number called, date, time and length of time. You as a lawyer make sure you get phone bills that do that so you can charge the calls to expenses for the particular case. Since the phone bill is prepared by an independent entity (the phone company), no one can say there’s any bias in the information recorded on it. And, it can be safely assumed, the intercept will show the same information for each intercepted call as the bill did. (After all, while the phone companies are willing participants in this scheme, that does not preclude them from having to keep accurate records….)

        * If it’s a criminal case, it’s unethical per se to take it on a contingent fee basis. If you’re litigating against the government, you’re an idiot to take it on a fixed-fee basis (pay me $XXXXX up front and that’s that) b/c they will make sure to make it unprofitable for you.

        ** Time sheets are my, and most lawyers’, bete noire of the first order. If we wanted to be bookkeepers, we wouldn’t have gone to law school.

    • R.H. Green says:

      Thank you for this informative (to me) outline. However, so much is at stake here, that I’m frankly doubtful the document will be “found”. One would think that the consequences for the defendants would be worse if it is delivered (and it says what’s purported) than if”lost”.

  9. WilliamOckham says:

    On a somewhat related note, the grumbling about Panetta is really about torture. Feinstein and Rockefeller must really be worried. I’ve tried to keep an open mind about how much they really knew, but this looks really bad, especially Feinstein putting forward Steve Kappes as an alternative. I’m very suspicious that they helped Cheney sink the IG report.

    • klynn says:

      So Rockefeller’s note-to-self is just cover for bad deeds? That would be interesting…

      Are there enough islands out there for everyone to try and escape to?

      • emptywheel says:

        It pays to treat torture and warrantless wiretapping separately, bc people didn’t act the same on both issues. Harman was ahead of the game opposing torture, but slow to realize they were being scammed on warrantless wiretapping.

        Jello Jay was probably the opposite.

        • klynn says:

          I agree on the import of treating them separately but where the two intersect is of import to our country, the Rule Of Law, balance of powers and the interpretation of unitary executive.

      • watercarrier4diogenes says:

        I read once that a group of Dutch farmers bought an island to move to in the early 30’s, seeing WWII on the horizon. Name of the island was Guadalcanal…..

        one can only hope.

        • MarkH says:

          I read once that a group of Dutch farmers bought an island to move to in the early 30’s, seeing WWII on the horizon. Name of the island was Guadalcanal…..

          OMG, that’s hilarious! LOL 707 BWahahaha

          Is that really true? I can’t believe it. But it is hilarious.

    • phred says:

      Agreed. As soon as I heard Feinstein’s objections, I assumed she was engaged in covering her backside. BushCo could not have accomplished all that they have without considerable help from key Democrats. It will be interesting to see how much effort they put into stonewalling certain appointments.

      • scribe says:

        It was deliberate. They did talk to Ron Wyden, a more junior member of the Intel committee, in advance.

        According to TPM, Obama and Feinstein have spoken and smoothed things over, more or less.

      • jdmckay says:

        Barack Obama appears to have concluded that a spy chief who understands politics may be better equipped to carry out the incoming administration’s national security agenda than one who understands espionage.

        I don’t know anything about authors of that LAT article, but above quoted leadin is, at best, wildly speculative. I’m pretty damn sure reason Panetta’s been nominated has a lot more to do w/integrity, getting things done the right way, and that he’s a pretty intelligent guy.

        • pdaly says:

          You’re right. I guess I have gotten used to reading past some of the fluff in the newspapers and not commenting on it. The anti-Obama spin of that opening is noteworthy, though. Good of you to point it out.

          • jdmckay says:

            The anti-Obama spin of that opening is noteworthy, though.

            FWIW, I just flipped on Blitzer for a couple minutes… leadin was (from memory):

            * Obama in damage control: risks alienating blacks w/criticism of Burris
            * Full revolt against Panetta nomination

            Then over to FOX, Cavutto talking to Sharpton:

            * Cavuto: Q, would you criticize BO if you thought something wrong with his stimulus package?

            I turned it right back off. The “spin” you mention, from what I see, is out there in full force right now, on every single issue. From what I see, in MSM it’s almost saturation. Blitzer’s lead in I just flipped on/off:

            * BO in full damage control over Panetta nomination
            * BO risks losing black’s support for not supporting Burris nomination


            No wonder US is broke. Frankly, I think it’s about what we deserve.

            • jdmckay says:

              Oops… sorry for redundant stuff there. Started typing, got up to do something, came back didn’t re-read, yada yada etc etc etc.

    • nextstopchicago says:

      I’ve been wondering why no one has been saying this about the Panetta appointment and what opposition from Feinstein and Rockefeller means.

      The “Jello Jay” nickname was particularly damaging to our efforts to see clearly. When prominent Democrats show “weakness” the problem is not likely to be weakness, but rather cynicism. It seemed pretty clear to me that Rockefeller wasn’t particularly opposed to torture. Josh Marshall has written this up as the good Dems vs. the ones interested in protecting their turf. I don’t think so. I think it’s the American Values Democrats vs. the torture-mongers. I’m actually looking forward to a fight. Can’t wait to see what happens to Feinstein’s fundraising base when some of her backers realize she’s really a torturer. Can you really hold a fundraiser in San Francisco while protesters wave photos of Maher Arar outside?

      I think Jay and Diane have been lying to us, which is interesting, because where I sometimes feel like I oppose torture, but I worry that the public doesn’t, Jay and Diane clearly felt it would be politically dangerous to be truthful. This battle will help us get at the truth.

      I think we need to start organizing this now. A vote against Panetta is a vote for torture. I think we should be looking at donor lists for Jay and Diane and thinking about who might be upset about this.

    • Palli says:

      My 84 year old father, a WWII POW himself, watched the two of them on telly…and he knew they had given it up…their cowardice and Kerry’s inability to remember his own words from decades before, darkened his last months.
      So this may be what shunning is for, the silent physical expression of grave disappointment. Glad neither is my Senator, this was a moral marker.

  10. stryder says:

    hell, just to know that this has the possibility to go “somewhere” other than Muckaseys’ shredder would be a plus

  11. Mary says:

    21 – as you know, I’ve always been of the mindset that Rockefeller and others have been in up to their ears and don’t want it to come out. Still, devil his due time, from the little I know about the CIA workings (which ain’t much), Kappes seems to be a very legitimate pick to push. If he was either too tied in with torture policies (or with loyalties to the torturers) to get the nod, that’s sad on a lot of fronts. It says a lot of bad things that there’s no one who is a legitimate leadership pick within the agency (Dusty Foggo? *g*) that isn’t a torturer, torture conspirator, torture cover up participant or torture advocate and loyal to torture and torturers; but it says even worse things about the agency operationally, after there is a leadership pic. What does Panetta have to “lead” if the agency is just riddled with torturers, torture conspirators and torture cover up participants? Does Obama just install him as the “hey, see, he said torture was bad” figurehead and then sweep it all under the rug? If not, if you do not only put Panetta in, but you have him dig in and address the illegal torture, what does it leave you with in the agency?

    That’s the sad, depressing, scarey, did I mention depressing?, reality. Since no one with the Obama crew is really phrasing it so bleakly, I’m assuming we are just going to get the figurehead option and the black budgets will include requisitions for really big rugs. But time will tell.

    • Praedor says:

      The best pick then is a whistleblower. For ANY government office, a good choice would be someone who used to work at a highly level in that office but who became a whistleblower.

  12. JClausen says:

    I have always felt that the March dates where the program was certified by Gonzales rather than the AG would be the key vulnerability in both civil and criminal actions. I am with WO on this. Go after Bush in civil court to get discovery and then let it all unravel like watergate.

    Thank you for your astute reading and analysis Emptywheel. You are the shining light on this illegal and unconstitutional behavior.

  13. Mary says:

    Commenting without reading the opinions – a bad thing I’m going to do. Also commenting when I haven’t really followed these cases that tightly – another bad thing. But here I go anyway.

    Going back to my pet theory on the ties of the FISCt Chief Judge’s meltdown that reportedly coincided in time with the sudden religious enlightenment at DOJ (facing hell makes it easier to choose heaven) – back on a much earlier thread on al-haramain case proceedings (for the charity, not this related matter filed by the lawyers) I wondered if this case might not have been a precipitator for the whole thing. Very likely it wasn’t, but here’s what I would spec about.

    There were investigations of charities going on where I have to think that the AG/DAG (until Thompson chickened out of signing off on applications that he knew were likely to be in violation of FISCt firewall orders) were signing off on, for applications for normal, statutory intelligence surveillance warrants. But where illegal, unconstitutional suveillance was also taking place pursuant to “teh program” all those applications were supposed to be directed to the Chief Judge and handled with knowledge of the illegal surveillance program taint of the whole judicial and justice institutions.

    And early in 2004, something triggered a specific reaction by the Ct, based on info that Baker gave them, possibly about a specific case, like this one, where statutory surveillance applications were being made and proceeding with no one following the firewall order. Keep in mind that the court had taken on Fran Townsend and FBI agents earlier relating to pretty widespread, fibbified FISA applications and now the Chief Judge was ready to start holding TOP DOJ officials, like Mueller and Ashcroft, directly responsible for misrepresentations to the court and violations of court orders. This had been coming down the pike so clearly that Thompson had stopped signing applications before he left office.

    And voila – the heroes at DOJ got religion on the program. But not so much religion that Judge Diggs-Taylor didn’t find that the direct surveillance portions of “teh program” were not still completely unconstitutional. And notice how all the recent leaks (and the illwind or whatever it was code name) deal with the data mining, not the direct surveillance, in a pretty obvious effort to talk up the most defensible program (hey, it was just datamining emails) as a bait and switch from discussions about the part of the program that was ruled unconstitutional and is apparently partially revealed by the al-Haramin doc – direct surveillance of domestic lawyers’ conversations without warrant.

    So I still think the only “religion” that DOJ got was enough religion to put enough controls on “teh program” that they could keep a better track on all the illegally surveilled persons and make sure that they better complied with the firewall orders.

    Now jumping gears entirely, I have to wonder just how far Walker is going to go on all this, bc there is a real plethora of issues, and not just relating to the unconstituional surveillance that didn’t even attempt to comply with FISA.

    The Sup Ct cases that allowed for the concept of “intelligence” surveillance – surveillance that proceeded without any probable cause to believe that a crime was being committed or planned, but only probable cause that a “foreing agent” was involved in the communications – IIRC those cases premised that ability to proceed on less than probable cause that a crime was being committed were based on the concept that foreign intel surveillance would not be used for criminal prosecutions.

    Congress has changed all that with the revisions to the Pat Act. Now, DOJ absolutely can make applications where they are specifically trying to pursue criminal prosecutions and do not have any criminal probable cause to seek a surveillance order. As long as they can make up any kind of “foreign” aspect or tie, the get to listen in on communications trying to find something chargeable, and that fishing expedition crap is all supposed to be allowed and allowable now, even though they never would have been able to get a crim surveillance order.

    That’s a pretty huge subversion of a process and the old process was an integral part of the old cases. It’s why “the wall” existed and while that was poorly administered and utilized, the “ruling” that brought down the wall, an In re Sealed Case ruling that was one of the only FISA appeals cases and the only one with a published case that I know of (but I’m not an expert) that appellate ruling is almost incoherent and riddled with DOJ self-serving dicta. And it was generated in a proceeding where there was no case in controversey and direct advocacy and no appeal rights for the injured party (only for the DOJ)

    Anyway, that’s an aspect that needs attention at some point and it just isn’t getting any, so I wonder if Walker will touch on it in the aspects that he has to deal with.

    And Walker couild basically go to the whole of the Mitchell doctrine, that was shot down in the Keith case, and the impact of the Keith case as, IMO, Sup Ct precedent that unconstitutional Government activity is not protected by states secrets doctrines. The AG filed the affidavits vis a vis the wiretaps in that case, but they still came out. And remember, in that case that Gov was arguing that it wasn’t using the illegal taps in theproceeding and that the prosecutors hadn’t even known about the unconstituional taps. While here there have been all kinds of bootstrapping.

    The other aspect Walker may or may not get to touch upon is how many cases across the country have been subject to affirmative misrepresentations by the Gov lawyers invovled if there have been widespread unconstitutional surveillance programs. I’m guessing that, unlike the lawyers in the Keith case and the AG then who were at least forthcoming to the court with the evidence of wiretaps — there are probably all kinds of cases and proceeding where the people involved have been subject to the unconstitutional programs and in the discovery requests gov has never fessed up.

  14. scribe says:

    This whole thing about the document being “lost” is a non-starter, a fiction.

    We need to remember the general chronology here:
    1. In the course of the litigation over whether al-Haraimin was a proscribed organization, the document reflecting the surveillance was “mistakenly” turned over in discovery.
    2. The attorneys recognized it for what it was, then advised the Court and government about it.
    3. The government went nuts and demanded it back.
    4. That issue was litigated and resolved in the initial litigation – the document was returned and the attorneys’ computers “cleaned” of its traces.
    5. The document was stored and preserved, under seal, in a SCIF (secure compartmented information facility), IIRC, in the FBI office in Portland, pursuant to a court order.
    6. Meanwhile, the surveillance litigation started.

    If that document turns up missing, now, heads may literally roll. Careers will.

    • LabDancer says:

      This is correct. The “lose-the-document” option cat is already out of the bag, too many DoJos and other government actors know of it [or them, more likely], and “losing” it [them] now is simply buying a ticket to an indictment.

      Recall that, as Judge Walker has noted repeated, the government put … SOMETHING … in a sealed package aimed at complying with the FISA Act pre-2008 quite a while back in time.

    • R.H. Green says:

      Scribe, and bmaz.
      Whew. There are many times I enjoy being shown the light; this was one of them. After posting the remark, I got to thinking something along the lines you mentioned, e.g, surely a copy was made of the returned document even if it is inadmissable, etc. Many of us don’t have the time or other resources to keep tabs on the details of each story of interest. I find just reading this blog keeps me more in the loop than reading newspapers, and the characters here that add to my understanding are immeasurably appreciated.

  15. Mary says:

    55 – and isn’t that statute that the current OLC “acting” head has been in long past the expiry? I’d really kinda love to see the incoming OLC head declare that everything issued by the old “actor” after the original expiration is invalid bc he was no longer valid to serve.

    56 Colbert interviewing John King last night gigged him on how the press had been so on their knees to Bush and didn’t that mean that they should really go after Obama on everything, right from the get go. As King was trying to figure out how to respond in a brief pause, Colbert continued,(paraphrasing) “because really, who better to pay for Bush’s failures than Obama”

  16. rafflaw says:

    I hope that Bush is shown in court that he was violating FISA and even violating his own illegal warrantless wiretapping program. What an unbelievable result that would be.