al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

The dead-enders respond by claiming that what’s at issue in this appeal is not what’s at issue in those statements from Holder and Johnsen. 

Finally, in arguing that the Order is not appealable, plaintiffs refer to some statements of two individuals who have been nominated to offices in the Department of Justice regarding the lawfulness of some particular forms of surveillance. See Pls. CMC at 5-6. These observations are also irrelevant to whether the Court should grant a stay pending appeal. The concern raised by the Government’s stay motion is that the privilege assertion not be irreparably harmed pending appeal. The Government’s position remains that this case should be stayed. [my emphasis]

Note carefully what the dead-enders do here. They collapse the two statements and pretend both are about the legality of the warrantless wiretap program itself. They make no mention of Johnsen’s objections to Bush’s unitary executive theories–particularly as they relate to balance of powers and individual rights. And after ignoring her reference to the unitary executive, they claim that the sole issue they’ve raised in the appeal is that their state secrets assertion will be "irreparably harmed" unless Walker stays the suit. They respond to Johnsen’s published discrediting of the unitary executive by pretending their appeal is based solely on a desire to protect state secrets as invoked with regard to the al-Haramain suit.

But that’s not what they argued in their appeal. 

The Dead-Enders Misrepresent Walker’s Order to Argue for Irreparable Harm

Yes, a big part of their appeal argued that the government would be irreparably harmed if it were forced to follow Walker’s orders. But most of that’s based on a misrepresentation of what Walker required in his orders.

As a reminder, on January 5, Walker ordered BushCo to hand over the document that–we believe–proves al-Haramain was illegally wiretapped. He then said he would review the document in camera to find out whether the al-Haramain lawyers do, in fact, have standing under FISA.  Then, he said, the government would have to get al-Haramain’s lawyers security clearances such that they could at least respond to his own orders, and possibly the filings of the government.

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed —— that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to classified materials, only by placing and maintaining some or all of its future orders in this case under seal may the court avoid indirectly disclosing some aspect of the Sealed Document’s contents. Unless counsel for plaintiffs are granted access to the court’s rulings and, possibly, to at least some of defendants’ classified filings, however, the entire remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs of due process to an extent inconsistent with Congress’s purpose in enacting FISA’s sections 1806(f) and 1810. Accordingly, this order provides for members of plaintiffs’ litigation team to obtain the security clearances necessary to be able to litigate the case, including, but not limited to, reading and responding to the court’s future orders.

Given the difficulties attendant to the use of classified material in litigation, it is timely at this juncture for defendants to review their classified submissions to date in this litigation and to determine whether the Sealed Document and/or any of defendants’ classified submissions may now be declassified. Accordingly, the court now directs defendants to undertake such a review. [my emphasis]

The only document that Walker demands the plaintiffs will get to see are his own orders–orders written by an Article III judge after such time as he had determined that these plaintiffs had standing.

But the dead-enders pretend that Walker’s order went much further.

First, the Court ordered that it will now review, initially ex parte, the Sealed Document which the Ninth Circuit excluded under the Government’s privilege assertion, and then proceed to decide the very fact question that is also barred from adjudication under the privilege—whether the plaintiffs were subject to the alleged surveillance. See January 2009 Order at 23. Second, the Court has held that due process requires that, for plaintiffs’ counsel to litigate the case, they must obtain security clearances for access to certain classified information, including the heretofore Sealed Document, court orders and possibly the Government’s classified filings in this case. Both holdings raise serious questions of law and would subject the Government to irreparable harm. [my emphasis]

That is, the dead-enders claim that Walker has demanded they allow the al-Haramain lawyers to see the Sealed Document itself, when in fact, right now, they are only being required to conduct a review to see whether they–the government–can declassify the Sealed Document and other filings.

In other words, Walker orders the government to review the Sealed Document and their filings, but he leaves it up to them whether or not they can be declassified going forward. Yet to make the argument that Walker’s order requires actions that constitute irreparable harm, the dead-enders misconstrue Walker’s order.

The Dead-Enders Do Make a Unitary Executive Argument

And from that stance, the dead-enders launch into a unitary executive argument. To do so, they restate their claim, once again, that Walker has required the government to turn over classified information and that he has asserted he–Walker–will control the process.

The January 2009 Order poses irreparable harm to the Government’s interests in another respect: it specifically provides for the disclosure of classified information by the Court to the plaintiffs in Section 1806(f) proceedings—that is, for a direct abrogation of the Government’s privilege assertion. The Order “provides for members of plaintiffs’ litigation team to obtain the security clearances necessary to litigate the case.” January 2009 Order at 23. This aspect of the
Order is based on the Court’s conclusion that due process requires that plaintiffs obtain access to classified information to litigate their claims under Section 1806(f). See id. Furthermore, the Court has held that it—not the Executive branch—will now control that process. The Court concluded that Section 1806(f) “leaves the court free to order discovery of materials or information sought by the ‘aggrieved person’ in whatever manner it deems consistent with section 1806(f)’s text and purpose.” Id. at 22.

Note, this is a disingenuous mis-citation of the worst sort. What Walker actually said–speaking in the hypothetical–was that FISA required that Article III judges have some means to require the disclosure of the proof that an aggrieved person was wiretapped.

Rather, a more plausible reading is that it leaves the court free to order discovery of the materials or information sought by the “aggrieved person” in whatever manner it deems consistent with section 1806(f)’s text and purpose. Nothing in the statute prohibits the court from exercising its discretion to conduct an in camera/ex parte review following the plaintiff’s motion and entering other orders appropriate to advance the litigation if the Attorney General declines to act.

Notice how they leave out the following sentence where Walker talks, once again, about ex parte review?  The one that makes it clear that Walker envisions this taking place within guidelines that protect classified information? And this is not the section where he orders the government to undertake a review to see what can be declassified?

Thus, even though the order itself grants the government the ability to determine what can and cannot be declassified, the dead-enders cite Walker out of context to support the claim that "Court has held that it—not the Executive branch—will now control that process." A patently false claim.

And now, finally, we’re at their unitary executive argument, which they had to get to, even via this circuitous and thoroughly dishonest route, because what they really want to argue is that Congress–not Article III judges–cannot limit the government’s ability to decide what can and cannot be classified.

And, citing its July 2008 decision, the Court again rejected the Government’s contention that, under Department of the Navy v. Egan, 484 U.S. 518, 529 (1988), the Executive branch, not the Court, controls access to classified information. See January 2009 Order at 21. Indeed, the Court expressly held that “Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch.” Al-Haramain, 564 F. Supp. 2d at 1121 (citing language in Egan courts have been reluctant to intrude upon Executive authority “unless Congress specifically has provided otherwise”) (citing Egan, 484 U.S. at 530). But even if Egan is read to reflect the general principle that Congress may attempt to expressly preempt executive authority by statute, whether that has occurred here is the very issue in dispute at this stage of the case. And to avoid the extraordinary constitutional concern of a court disclosing classified information over the Executive’s express objection and, indeed, successful privilege assertion, any such disclosure should not occur without further review of the legal underpinnings of the Court’s Order.

Navy v. Egan, you’ll recall, is the same statute that David Addington cited to argue that the President could decide to insta-declassify the identity of a CIA spy. It’s the signature case that David Addington uses to argue that the President (and, though he doesn’t say so publicly, the Vice President) can classify and declassify like madmen. 

Just to give you a sense of how dubious Addington’s–and therefore, presumably, these dead-enders’–interpretation of Navy v. Egan is, here’s what noted felon Scooter Libby responded when Fitzgerald asked him in his first grand jury appearance whether or not Navy v. Egan said what Addington claimed it did.

Q. Did it appear to say what you thought Addington said that it meant?
A. Within reason, yes, sir.

"Within reason." Via dishonest argument, we’re now at the case the unitary executives use to support their pet theory of classification and declassification, all to argue that Congress could not legislate any limits on the Executive’s ability to determine what is and is not classified, not even in cases where the Executive is using it to cover up a crime. 

Now, to be fair, I can grant the importance of the government arguing for a ruling on how clause 1806(f) ought to be interpreted. But when they do that, they (at least if the dead-enders get to make the argument) will be making a unitary executive argument. 

But their arguments to support the case that such a review must happen now are based on completely dishonest representations of what Vaughn Walker’s order is. That is, to argue that moving forward with his orders would create irreparable harm, they just make shit up. 

The Dead-Enders Say No Need to Wait for Obama because They Don’t Make a Unitary Executive Argument … Then They Make a Unitary Executive Argument

But that’s not the only curious thing about this appeal and its subsequent reaffirmation under Obama’s name. They say we shouldn’t wait until Obama has a DOJ because–they argue in part–this appeal has nothing to do with theories of the unitary executive.

Only, it does.

Now, this still doesn’t answer the questions I raised yesterday about whether or not Obama could be properly said to have weighed in on this before his AG is confirmed and read into the program at issue. 

But it does make one thing crystal clear. In their attempt to dismiss the need to wait for Obama on this ruling, the dead-enders badly misrepresent their argument (which already contains a slew of misrepresentations), pretending they’re not relying on the unitary executive theory when in fact they are for the question at issue–how to interpret one clause of FISA. 

That may mean Obama has bought onto this appeal without being adequately briefed on it. It may mean that Obama has bought onto it even though his nominees disagree with it. It may mean he hasn’t been briefed and doesn’t have a meaningful means of engaging with it and the dead-enders are speaking in Obama’s name to get this resolved before Holder and Johnsen come in, which would explain why they’re pushing to accelerate the deadlines on the appeal.

It is quite possible that Obama will badly disappoint us all on this issue.

But it is not clear that he has.

  1. MadDog says:

    So, what’s keeping Obama from affirming or denying a role in this matter?

    Too much on his plate? I’m not buying that.

    No Obama DOJ critters yet? I’m not buying that as sufficient since he has a raft of Legal Eagles on both his Transition Team as well as now in place on his White House Counsel’s Office.

    Folks can’t tell me that no single individual, or more likely, even multiple individuals within the Obama Team are not paying attention to what the DOJ is doing. Can’t! Nope! Uh-uh!

    So, what is going on?

    • emptywheel says:

      If Obama has no DOJ critters yet, how are you sure he has the means to enter motions in this case? He did all the Gitmo stuff through executive order, reviewing the definition of something originally defined by executive order.

      He could order these guys to do what he says on threat of firing. You want to see how long it’ll take to approve Holder if he does??

      I really don’t know. All I’m asserting here is that 1) the lawyer arguing this won’t affirm he’s sure Obaam’s thinking on this is the same as the dead-enders, and 2) in hte dead-enders dismissal of reason to think it might be, they misrepresent their own argument.

      It’s possible they only made taht assertion to Obama: “we’re making an appeal based on state secrets, it has nothing to do with the legality fo the program or with ue.” And based on that he supported their appeal.

      • MadDog says:

        …It’s possible they only made taht assertion to Obama: “we’re making an appeal based on state secrets, it has nothing to do with the legality fo the program or with ue.” And based on that he supported their appeal.

        I would agree that an “awareness” of this DOJ filing by the Obama Team must be a given. If not actually before the filing, certainly in the days afterward.

        I would further argue that it may in fact be the case that the Obama Team has not yet come to a formal determination itself on how to proceed in this case (no Obama DOJ critters in place as major component of this argument).

        But, it would seem that unless the Obama Team is actually supportive of the DOJ dead-enders filing, it would take little effort to come out publicly announcing their disagreement.

        Yes, one could imagine an attempt at some political hay being made by the Repugs, and as you say, even linkage to the Holder, and other DOJ nomination, but to what real effect?

        As Harry Reid has recently said (me, defending Harry Reid? WTF?), “We’ve got the votes!”

        Something just doesn’t compute in this matter.

        • emptywheel says:

          Yeah, we’ve got the votes. That old screed. Not until we’ve got Franken and a cooperative Republican.

          Like I said, I don’t know what is up.

          I do know the dead-enders have lied about what they’re arguing, and based on that lie, said Obama is playing along.

        • emptywheel says:

          If Obama is fully playing along, why pretend you’re not arguing UE? That’s what I don’t understand. Say, “Obama has said we should pursue this anyway,” “Obama has told Johnsen to go fuck herself.”

          Why pretend they’re not doing something they are.

          And when you think about it, given teh actual letter of Walker’s orders, the only REAL irreparable harm taht they will have is that obama gets to determine what gets declassified or not.

        • MadDog says:

          Yeah, something really doesn’t smell right about this whole thing.

          And the silence from both the Obama Team and interested Congresscritters is deafening.

        • MadDog says:

          …I do know the dead-enders have lied about what they’re arguing, and based on that lie, said Obama is playing along.

          In reading that first page of the plaintiffs’ filing, they didn’t pull any punches about being sandbagged by DOJ dead-ender Coppolino either.

          …Mr. Eisenberg agreed that he and Mr. Coppolino would “touch base” on Friday.

          Mr. Eisenberg then waited all day Friday, January 16, to hear from Mr. Coppolino. Meanwhile, at 8:21 p.m. Eastern time that eveing, Mr. Coppolino filed a notice of appeal from this Court’s order of January 5, 2009…

          …On the morning of Saturaday, January 17, 2009, Mr. Eisenberg left email and voicemail for Mr. Coppolino asking him to call to discuss the notice of appeal that had been filed the night before. Mr. Coppolino telephoned Mr. Eisenberg on the afternoon of Monday, January 19, 2009 and advised that the defendants would be filing, late that evening, a motion in the district court for a stay of further proceedings…

      • THATanonymous says:

        1) Obama is cleared to read the relevant documents

        2) Obama is a lawyer (he can craft his own legal documents, not that he needs to)

        3) Exactly because he doesn’t have a DOJ team in place, he can file directly with the Judge. After all, he would only be asking the judge to wait a little bit for HIS team to arrive.

        4) Republican spin will always claim politicization, so why factor that in?

        5) Why can’t he make a public statement, in lieu of anything else?

        btw, (re: ew @ 11) self-serving is not the same as cynical. Don’t see anyone in DC living in a barrel do you?


  2. SaltinWound says:

    Isn’t there some way Obama could have said he doesn’t know what he needs to know yet and asked for a pause? If he could have done that, I would say he has already disappointed me. Otherwise, we’re saying all the smart commenters here are more up on this than the President, who is a Constitutional scholar. You or bmaz or Mary would have asked for a pause already. Why do we expect less from the President?

  3. Leen says:

    Was wondering about the “classify/declassify” switcharoo game that the Bushies played while reading the last thread and comments about Al-Haramain three times

    Thanks for allowing peasants to participate. Learning

    EW that docket that you linked on the last Al Haramain thread when they switch from filed with GW’s name then “corrected”/filed with Obama’s name. Does the “corrected” just represent the switch from Bush to Obama

  4. SaltinWound says:

    But then it also alarmed me that Sheldon Whitehouse had to learn from emptywheel about the possible connection between the Holder delay and the Statute of Limitations.

    • emptywheel says:

      Though that doesn’t pertain to this case. This case has no SOLs, I think, it’s only that once Walker judges the document says al-H is aggrieved, then it forces the issue.

      Whitehouse was happy to entertain the notion that they’re running out the clock.

      Though maybe he just pretended he didn’t know SOLs bc Holder and OBama don’t want this headache.

    • pdaly says:

      I was thinking the same thing. Especially since the reality-challenged Neocons were able to find this path of delay without the aid of emptywheel.

      Whitehouse speeches, nevertheless, remain eloquent. However, I would pick action over words.
      Is Whitehouse talking to anyone this weekend?

      Does anyone have pending director of OLC Johnsen’s contact information?
      Is she even aware of this possible republican ploy?
      What has Johnsen told Obama? (yah, I know, she can’t tell us any advice she has offered the President, but can she confirm that Obama has neither sought nor she offered him advice?).

      Finally, if Obama wanted to act on his own he could insta-declassify the classified al-Haramain document becuase (as bmaz has told us in a prior thread this past week, [thanks bmaz], that lawyers familiar with the case state the classified document is merely a list of names and does not contain materials and methods).

      The insta-declassification of the document may lead to the unravelling of Bush’s Unitary Executive theory (might makes right), and place Bush, his administration, and his underlings in legal jeopardy, but this is no reason for Obama to sit quietly on the sidelines.

      Obama could remain above politics and merely follow the law–in this case to undo the inappropriate classification of the al-Haramain document. The classification was made to hide a crime–the Bush Administration’s illegal warrentless wiretapping of Americans (in this case American lawyers talking to their client).

  5. SaltinWound says:

    Wheel, I know it doesn’t pertain to this case. I’m making a broader point about being in the odd position of HOPING the government knows as much about these things as a pseudonymous blogger I happen to follow. It’s great that you’re so on top of all this but why should I have to HOPE the President is equally well versed.

  6. SaltinWound says:

    Now I want to imitate you by slipping in the phrase “in other words” a few times, until I’m absolutely positive I’ve driven my point home. In other words…

    • emptywheel says:

      Um, you mean picking his nose? That’s what Jane says he was doing.

      How to have a conversation about domestic wiretap when one of your favorite senators has a runny nose.

      That’s probably where I got this godawful cold I’ve got–from shaking hands with him.


      • Leen says:

        Whitehouse seemed to look away when you referred to Alice and asked when it would be acceptable for you to call.

      • SaltinWound says:

        At the risk of belaboring this, but in the interest of clarity, it was Senator Whitehouse picking his nose, not President Obama.

        • Leen says:

          more like whiping his nose.

          By the way EW the old hot tea with lemon and honey makes you feel real good at least for a while

    • drational says:

      The tell.
      He did not get elected due to beauty, grace or diction.
      Dude that digs like that must be on the take. He can certainly make beautiful and aggressive speeches, but for ew to have to school him on why the GOP might be slow walking Holder suggests to me that he is a show pony.
      Why didn’t ew harass Feingold?

  7. Leen says:

    Can they allow “classified” documents to be looked at by the relevant individuals in the case while at the same time protect the status of that document.

    What a fucking cat and mouse game our justice system is. Did they or did they not follow the FISA law? I thought this was the issue

    During the Holder hearing I must have heard Holder, Whitehouse and others keep saying “no one is above the law” so many times that I could not keep count. Kept wondering why they needed to keep repeating this. Guess because it is just not the truth. This statement continues to be a myth and called horseshit in my neck of the woods

    • MadDog says:

      Can they allow “classified” documents to be looked at by the relevant individuals in the case while at the same time protect the status of that document.

      What’s funny about that is the plaintiffs already saw and read the primary “classified” document from Treasury before the government took it back.

      Additionally, as the government has already admitted, the “classified” document got out to multiple foreign entities, and they profess no concern about that.

      How it can still be considered “classfied” is one of the truths that the universe is a real funny place.

      • Leen says:

        Just once I would like to hear one of our Reps/administration officials etc tell the f–king truth. That there are people who are above the law in fact we just watched eight long years of an administration operating outside of the law. The folks in my neighborhood know this and we all laugh and snicker when we hear someone say “no one is above the law”

  8. JohnLopresti says:

    I understand the metonymy, even the glum prospects of my own relatives’ granny’s now bare garden on 16th, but the District of Columbia still has a better meaning, which hopefully HRC will help restore, as will her president.

    The Egan case evaluation is important, Federalist Society dotes on that case and a few others. ew’s presentatiom reminded me that among the beasts of burden towing FederalistSoc’s drayage wagon toward its authoritarian apotheosis is a pairing of an aloof Art-III branch named by the isolated executive. The text gets overly nuanced when FedSoc does it, but I think that particular medium is their favored massage. I think if the Obama administration can figure a way to give narrow exonerations in some of the most egregious cases that would be their preferred route thru the bog left by BushAddington etAl, perhaps in a barter with congress to look at the gorillaElephant in the wiretap cases, the telco’s burgeoning liquidity, no TARP for the telcos, doin better than Ford. That, and Obama is going to improve the A-III bench, provided McConnell + Co. avoid the nuke wasteland that Frist so admired.

    I appreciate the BU law J recent article, it develops the ACS seminar text Johnsen delivered ~a year ago. Will give it study. On the EHolder delay, there is a lot; part is like surprised Whitehouse said, better look into it because statute of lims near run already; but also the consumer industry telcos as donors could worry congresspeople; they look forward to fundraising without embarrassment. The al-Haramain case may be the most ripe one. I continue to examine that.

    Not OT: This comment shall not diverge into the remarkable Studs Terkel verbal history NPR played recently, seemingly hours in duration, or his separate action in a case similar to the surprised OR charity’s. I bet JudyJudy’s penregister set off a few communities of interest gauges too, but that would be erased, as in no data.

  9. Hmmm says:

    I wonder whether there is some layering going on about what FISA-violating programs DoJ is attempting to keep unproven here. IIRC, Gonzo and Comey were both extremely careful to comment only on “the program whose existence the President has confirmed” which seemed to be the Terrorist Surveillance Program (TSP). In the light of the Tice disclosures I now wonder anew whether other “programs” have been in effect simultaneous with TSP. One possibility might be that the Hoovering up of all communications and the storage of that info into ‘data sets’ (not exactly ‘databases’ since they have no indexes and are not yet as easily searchable as a database) is one program which has not yet been confirmed; whereas TSP (and perhaps further unconfirmed and/or unknown programs) is limited to information retrieval functions, rooting through those same stored data sets. A technological dependency between the two systems, in other words.

    Now, a government could survive disclosure of the info retrieval programs, so long as the public were kept unaware that the info collection program(s) upon which they depend have for many years been collecting everything ordinary folks do, TIA style. If there is something about the Sealed Document that would prove the existence of the Universal Hoover info storage side of the system, then PBO would be in a position where if he produces the document, then he not only loses all retrieval capacity including even legal, FISC-approved programs (because the info collection part is not FISA-compliant and by its very nature could never be made so, and so would have to be stopped). But if PBO decides to continue the Bush attempt to keep the info-storage part secret, and then loses, and then the info becomes public, then PBO also loses the people because he will have tried to keep spying on them. No win there either way, just two colossal loser options.

    • skdadl says:

      IIRC, Gonzo and Comey were both extremely careful to comment only on “the program whose existence the President has confirmed” which seemed to be the Terrorist Surveillance Program (TSP).

      This is maybe just pedantry, but I would disagree a bit.

      I agree that both Comey and Gonzales (in that order) were extremely careful in their testimony, but in different ways. Comey was careful to refuse to confirm that he was talking about any particular program. It was only later, when Gonzales was cornered with Comey’s testimony by senators who were presuming that Comey had been talking about the TSP, that Gonzales began splitting hairs, and the thought began to arise that the TSP was not the only program at issue. Gonzales was certainly evading the questions put to him about “the program,” but that was the one time I thought that he might actually not be lying — ie, he was evading only because he couldn’t spill the truth that there was a program beyond the program.

      • Hmmm says:

        That sounds about right, thanks for the refresher. My point remains that since there seem to be multiple programs, I’m trying to relate the al-Haramain controversy to the question of “which programs(s)?”

  10. MadDog says:

    I wonder if David Kris, Obama’s nominee as the head of the Justice Department’s National Security Division which is the relevant section responsible for this particular case, still reads and responds from his old TimeWarner email of [email protected] ?

    I’d like to ask him a simple question:

    “Is the Obama Administration aware of the most recent DOJ filings in this case?”

    I’d also like to ask him a further question, but I’d guess he may not be able to answer:

    “Does the Obama Administration support the most recent DOJ filings in this case?”

  11. LabDancer says:

    Can I just say first to Ms E Wheel – great eye, interesting segue, solid analysis, as usual.

    Second: to MadDog – Kris is barely nominated at this point; but I’m certainly not going to discourage any efforts to contact him, or anyone else nominated to DOJ positions, because none of that could possibly hurt. But don’t you think the best place to go to ramp up the noise on this is the White House blog? And it wouldn’t hurt to make noises at the two best places for DFH legal concerns getting noticed: Glennzilla and Marty Lederman’s [old] stomping grounds at Balkinization.

    Third: I think some folks posting responses here have become unwittingly socialized by the last 8 years of politicization of the US DoJ — and by that have failed to consider one of the several limitations on the new president. To begin with, in the tradition of Democratic presidents going all the way back to and including LBJ, this president can be expected to treat the DoJ as an institution unlike the rest of the federal government apparatus – which, it’s not just mundane to report, was the whole point [Okay: the publicly-avowed point] of Specter’s challenge to Holder [which is great irony: Mr Holder – how can we be sure you will act like a Democratic party nominated president’s nominee, like the American people are entitled to?] . Even assuming this has been brought to President Obama’s attention [something we cannot know unless we attend to it ourselves: anybody got his cellphone number?], it’s inconsistent with that intention that he actively intervene to ‘take a step’ in this ongoing litigation.

    I won’t here go over all the arguments & bases I went through in yesterday’s posts on this story, for why I believe that, to the extent a message of any kind went out from DoJ HQ to the government’s team on this case, it would be a very general request to request the court for time – – and the same to apply to dozens if not hundreds of other cases which might be perceived by the housekeeping staff at DoJ HQ as ‘possibly sensitive’ to a change in the administration. But I will say it would be very much considered to be sending the wrong message, for a number of reasons, to appear to be proactively involved in this case beyond simply such a request.

    So: this issue is very much up in lights here [thanks to Fearless Leader]; and at the WIRED THREAT LEVEL blog [which might also pick up some attention]; so what’s stopping us from going off & spreading the word whereever it might attract more attention?

    For my own part, that’s just what I’m about to do.

    • emptywheel says:


      Here are the conclusions I would have ended with above, if the cold boogers hadn’t taken over my brain.

      1) The dead-enders do not represent their status as one influenced by Obama. If they were, the correct response to the question, “What would Holder and Johnsen say,” would be, “we write this with the support of Holder and Johnsen.” Instead, they simply dismissed the applicability of Holder and Johnsen (I love how they call them “individuals who have been nominated” and not the AG-fucking designee of DOJ.

      2) There are problems with saying this appeal is Obama’s legal position by virtue of his being President. That’s because the dead-enders have given clear evidence that they mis-represented their case. THat is, if they’ve briefed him or a representative, we have reason to believe they have claimed this to be a simple states secret dispute, which they only get to by misrepresenting Walker.

      3) That may mean Obama has passively assented to this, either because he doesn’t want to be forced to prosecute Bush for his illegal actions, or because he’d just rather have the dead-enders argue out what they’ve made into a dog of an argument.

      4) It is also possible that Obama, for the reasons LD cites, does not feel he can intervene in this case barring having–at least–his AG in place.

      That said, if al-Haramain and Walker read this the way I do (and al-Haramain makes the case in their 24-hour response to the dead-enders that they are misrepresenting Walker’s orders, so I fully expect them to develop that going forward), then it may not help Obama passively let this go away. The dead-enders’ arguments ARE stinky, for the most part. To the extent that I think it warranted to get a ruling on the 1806(f), that doesn’t yet get you to irreparable harm with Walker’s orders.

  12. LabDancer says:

    But not before I raise something that continues to bother me about this effort at a stay pending appeal [which I wanted to raise in a separate response anyway]: Obviously, the dead-enders are working feverishly – or worse – to get this shelved pending appeal – which could take months & at least allow for an effort to spin this as Obama’s doing [as is happening already with the financial crisis] – but quite apart from that, I’m wondering about the status of the “filing” the current government team is so strung out over, so much so that they’d be so desperate as to diss a judge to his face like this – it appears at least to some extent just to get him to read their classified “filing”.

    Consider: this isn’t a “filing” like the court filings that have been linked to here – it’s ‘recognized as filed’ in some putatively ’secure’ environment. Quite apart from the obvious ploy to get Judge Walker to somehow compromise himself in just resorting to it, I’m getting the impression that there’s something in there that needs to go all *POOF* like pixie dust before Holder gets into his office.

    • bmaz says:

      Whoa, late to the show here. LD, my take is not so much that they are worried about, or trying to force, so much a one event “poof” as trying to buy time past the 5 year statute on the criminal implications on the period where the Bushies have their most criminal exposure (along with the destruction of the torture tapes), the short period after the “hospital encounter” where they were operating on the clearly insufficient and illegal undersignature of Gonzo instead of the Attorney General. That and, as you reference, trying to move the public spectacle of the whole shooting match into the Obama era. Obviously there are a whole host of factors behind anything this complex, but I don’t think the foregoing should be discounted one bit.

      • emptywheel says:

        Well, that, and when you play out their argument using Walker’s actual orders, rather than their misrepresentation of them, then it becomes clear the irreparable harm they’re really trying to prevent is for Obama to get to decide how to declassify the things for al-Haramain. And, of course, for Walker to confirm that al-Haramain was wiretapped illegally.

        Which is, ultimately, why I’m increasingly convinced this is an attempt to rush this through before Holder comes in. That doesn’t explain why he’s letting them (with LD’s concerns well-noted, because that may well be what is going on). But these guys are trying to push an Appeal reversal through before Holder shows up and reads the docs.

  13. Garrett says:

    The careful parsing about “the program whose existence the President has confirmed” might have a simple explanation that doesn’t really allow reading anything into it about one or multiple programs.

    The program was and is classified, except approximately the details admitted to after the Times disclosure. They need to be careful in talking about it. The phrasing is a good way of getting around the awkwardness.

    If there was only one program, whose other details they were trying to conceal, they could use the phrasing. If there were other programs, whose existence and details they were trying to conceal, they could use the same phrasing.

  14. emptywheel says:

    Incidentally, it turns out the al-Marri review was done by Presidential Memorandum. And in case anyone needed to officially notify SCOTUS about that memorandum, we know Obama was meeting with Roberts on the day this memorandum was signed (it’s the day he re-took the oath).

    So we have, as yet, no evidence of Obama setting policy at DOJ. For the reasons spelled out by LD, I think Obama probably thinks (rightly) that that is proper.

    • bmaz says:

      And to LD. Okay, I grant that for reasons previously stated it may well have been an innocuous caption change yesterday. Or not. Whatever. We don’t know; but we do have to assume that is indeed the policy of the Obama Administration until they evidence otherwise. What I don’t follow from EW @43 and LD @35 is why it would be improper or uncouth for Obama to have conveyed his position to the DOJ. It is an executive department agency and he is the executive. He or, more likely, Craig conveys the position to Filip who contacts Haas and Coppolino. why is there anything inappropriate or inconceivable about that??

      • emptywheel says:

        Because that would be Obama intervening in a case that directly affects Bush, for one. That could be pitched–pretty compellingly–as politicization, particularly without an AG who was presumably representing both Obama’s interest AND ours.

        HOw do you separate out Obama’s stated (if lukewarm) concerns about wiretapping from a desire to intervene in something that–you and I both–agree might have led to criminal liability if it proceeded on Walker’s schedule?

        Furthermore, even assuming Obama’s operating at that degree of micromanagement yet, without staff in place at DOJ, what if Haas and Coppolino refused? Obama can’t really fire them as insubordinate without some taint there.

        That said, as I wrote the Pixie Dust post and realized how badly Craig has served Obama (one week in!!), I wonder whether Craig’s at the center of this strategy.

        Presumably Obama and Craig have now been read into “the program.” Holder has not yet been, nor, presumably, has Johnsen. I am not entirely sure how far Kris, as ADAG, was read into it before he left BushCo, but I don’t think it was very far. And, of course, Craig is the one of this crowd who has proven to be a certifiable idiot on these issues in the past.

        • bmaz says:

          How do you separate out Obama’s stated (if lukewarm) concerns about wiretapping from a desire to intervene in something that–you and I both–agree might have led to criminal liability if it proceeded on Walker’s schedule?

          Justice, baby, justice. And the rule of law. If you don’t do it for the reasons you pondered, that is politicization too; because then you are foregoing action for political concerns. I see your point, but the same concern cuts both ways. Bottom line, you gotta go where the law most righteously leads you. I have my inclinations on that, others may differ. Kris is knowledgeable and bright enough to get a grip if you ask me.

          Craig/Greg. Yup. Hard to argue with that. There was a reason I always though Cheryl Mills (and, really Abbe Lowell for the Dem. Committee) was the brains behind the successful defense of the Clinton impeachment. However, I never knew how right that deduction was, I thought Craig was way more competent than he has proven himself for a while now, and totally in the last five days. Jeebus. Did Gonzo help him or something?

        • emptywheel says:

          THough, to be fair, several of the things on which Ofer Craig has looked like a tool were at the behest of his boss (such as the Rahm coverup). Doesn’t redeem him at all, though.

  15. bmaz says:

    But these guys are trying to push an Appeal reversal through before Holder shows up and reads the docs.

    If I may be so bold as to return briefly to my impertinence of Friday, I would suggest that if us impaired DFHs (one by boogers, one by the more traditional alcohol) at this blog can get a grip on this gig sufficient enough so as to be arguing only about intricacies, the Great Eric Holder and Constitutional Law Scholar Obama ought to be able to muddle through well enough to join the battle.

    Just saying.

    • newtonusr says:

      Are you suggesting that the toobz are only partially snot-impaired? ‘Cause if you’re a betting man, I believe we may have ourselves a wager.

      Seriously, what a series of threads on this stuff. Gladly reading, and carefully rereading all of them. Fascinating work.

    • emptywheel says:

      Well, there are a number of questions.

      1) Is Holder aware of this case–probably generally.
      2) Has Holder been briefed on this appeal and if so was that briefing inaccurate in the way I’ve presented here?
      3) Has Holder done his own analysis of the appeal (which was, after all, first published on Monday)?
      4) If he has, does he believe he has a means to intervene?

      My point is we have no reason to believe the answers to 3 and 4 are no–that is the most likely answer.

      • bmaz says:

        It may not be Holder. Maybe it is Kris. Maybe it is Lederman. Maybe it is someone we have never heard of. But Mary is right, and me too I think, if they had the gumption to be all over the many other issues they have demonstrated themselves to be, and they have, there is no reason there should not have been one or more of the team tasked for a while with tracking the action in the consolidated cases in NDCA. It isn’t that hard.

        Now, I am not saying they did do this, at this point who the hell can tell; but it seems somewhat incongruous that they tracked all these other hot button topics and, yet, didn’t have someone (Kris would be a natural) track this one.

        I dunno. Either way, they ought to be joined in the fray now, what do they got? If it is different than the currently established posture, let’s see it.

    • masaccio says:

      That’s right, if this case is on their radar screen. It ought to be, but I wonder if it is in the detail that would be needed. Do we know exactly when the pleading was filed? That might help us figure this out.

      • emptywheel says:

        From the post the other day:

        January 16: Bush files appeal

        January 19: Bush motions for stay pending appeal, informs Walker and al-Haramain of what it is doing

        January 20: al Haramain responds, Obama becomes President

        January 21: Specter places his one-week hold on Holder’s nomination

        January 22: The “Obama Administration” submits support of Bush motion

        January 23, 10:30 AM PST: Hearing scheduled

        al-Haramain got their notice of the appeal at 10:56 on January 19. They were clearly not only trying to run the clock, but do so under the glare of the inaugural.

        • bmaz says:

          Right, but all you need to know was in Walker’s Order of 1/5. That is the decision point, the appeal and motions on the 16th and 19th respectively are expressions of Bushes interpretation/position on the 1/5 order. Team Obama could have the same position, or different, but the operative background they needed to make that determination has been there, as well as direct evidence of Walker’s curiosity, since 1/5.

  16. BayStateLibrul says:

    Fascinating debate, but Obama has more pressing decisions…

    Do I throw out the first ball on April 6th when my White Soxes
    debut, or a week later when the home town Nats take the field?

    Life DOES begin on opening day.

  17. Mary says:

    ew – without going into the heart of your post above, some of which I agree with and some of which I don’t, you are still not following judicial process and are conflating apples and oranges when you talk about what Obama accomplished in other matters via Executive order.

    If Obama has no DOJ critters yet, how are you sure he has the means to enter motions in this case? He did all the Gitmo stuff through executive order, reviewing the definition of something originally defined by executive order.

    I tried to explain this below and I know you still don’t see “visible” DOJ involvement, but it is there and has to be there.

    Otherwise, you are proving even more than the Unitary Executive theory for the Addingtons – bc you are saying that federal district courts proceed or halt with cases based on Executive fiat. They don’t.

    Here’s what Obama could have and did accomplish by EO (well, only a couple of things, but things relevant to this issue)

    1. He directed the halt of the military commission proceedings, which are subject to his fiat.

    2. He ordered an investigation into al-Marri’s handling at the So Car brign, actions which are subject to his order.

    ***On a similar front, what he could have done but has not to date done was to order an investigation into the proper classification of the al-Harramain document.

    What he did NOT do by EO, bc it cannot be done that way, include:

    A. Ordering the District (and appellate) courts having assumed jurisdiction over Boumediene based habeas cases for GITMO prisionser to stay their cases.

    B. Ordering the Sup Ct to halt it’s review of al-Marri’s federal district court, non-GITMO, habeas proceeding.

    I can understand why you are conflating the two groups, bc the non-legal reporting has done that and various msm types of reports have indicated that the EOs are what put a halt to the cases. But they did not. They served as a reason to give to the courts for needing the delay, but you don’t EO a court into doing what the president wants. I wouldn’t go so far as to say that a President, esp one who is a lawyer and admitted to the bar couldn’t make a request to the court directly, under some kind of mutant pro hac vice approach, but he doesn’t issue EO to the courts.

    Follow the legalcommunity reporting and I don’t think DOJ’s involvement in A and B is invisible. To use B, which was my original example, everything that has been reported is that Gov requested the delay. In addition to what I had quoted below, see, eg., this from the SCOTUS blog:…..arri-case/

    The Supreme Court on Friday granted a Justice Department request to delay

    Also from law profs blog:


    The Obama administration has asked the Supreme Court for an extension of time to file its brief in Al-Marri v. Pucciarelli, the case involving the government’s authority to indefinitely detain, without charges, a lawful U.S. resident, captured and held in the U.S., as an enemy combatant.

    The other reports are that the delay is something to which defense counsel agreed. Again, not something that can be done by EO (they aren’t issued jointly with defense counsel, unlike consent orders, which are at times issued jointly by the courts and both sides or the courts reciting agreement of both sides)

    In any event, you have either judges entering their orders sua sponte, (which, for example, Bates did here:…..-22-09.pdf )

    or you have one side asking (and the initial and even final requests can be verbal, in which case there isn’t a written motion to docket preceding the order and sometimes there is no requirement for a post entry either) and the other side objecting

    or you have both sides consenting (and again there may be no motion on this, sometimes a consent order is circulated, sometimes the court enters its own order granting the requests and recites consent and sometimes they get sloppy and don’t recite the consent).

    In any event, if the court is not acting sua sponte, requests must come from counsel of record. My understanding is that in the al-Marri case, it has been the Solictor General’s office which made the requests to al-Marri’s lawyers for extension.

    Also, keep in mind that Coppolino is Special counsel – he’s not going to refuse to ask for an extension if told to do it.

    The course that would have made sense in this proceeding (whether or not he was going to affirm or reject imperial powers to disregard the law and Consitution) would have been for Obama to do something similar to what he did in al-Marri (and he still can, but the fact that he didn’t seems to indicate that he didn’t really want to)

    If Obama enters an EO ordering a review of information obtained by the program connected to pending cases, or even if he just directs Coppolino et al to advise the court (even through a secret filing) that he is engaging in such a review, he could get an extension for a bit and in effect get what they are seeking, a stay, but under a different mechanism (that the new administration is doing a review to determine correctness of classification) and buy time and possibly, if he could reach an accomodation with the court and adverse counsel in the interim, avoid the showdown.

    That would be normal course procedure IMO, whether he is going for supporting or pissing on the Constitution, it bolsters him for either setting. I won’t rule out that they might well still fall back on it over the next few days, and it won’t necessarily be a “victory” for the Constitution if they do, bc having a delay followed by Obama ALSO claiming classification privilege, injury, etc. makes it that much tougher on a Judge to pushback.

    Let’s face it, the fact that there hasn’t been any kind of rollout of orders on review and possible shake ups of the secret unconstitutional surveillance programs indicates they are not viewed in the same way as the torture cases. If the problem with his torture approach is that he wants to let Bushcrimes be bygones, and just imperialisitcally deign to self-impose better behaviour on himself in the future; the problem on the illegal surviellance front is that he is willing to allow and retain a power in the Presidency to actually decriminalize by fiat and make a massive violation of not only law, but Constitution, retroactively “legal” (not just crimes not prosecuted, but non-crimes).

    It’s not a done deal yet, but if I was his ultimate client (and I am) and he was lead counsel on this case (and he de facto is) I would be screaming over how it’s being handled. Which I guess I kind of am.

    In any event, Holder notwithstanding, Obama is the boss of DOJ and can tell them what to do and the evidence is that he has done so on the GITMO habeas and al-Marri cases.

    [without spending time researching case dockets, since this is my day for horse stuff, this article…..classifier
    while msm also indicates a two step process taking place, the issuance of exeuctive orders on the one hand at GITMO, coupled with non-EO requests to the court for stays on the other.

    Among the first acts carried out by the administration of President Barack Obama in January 2009 was an executive order closing Guantánamo. It also issued an immediate halt to the military commission proceedings for prosecuting detainees and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there.

    Someone had to make the request – and under rules of procedure that would have had to be counsel of record. I’d say it’s probably worthwhile to get the actual stay orders entered and see if they have recitals.

    • emptywheel says:


      I agree with this:

      ***On a similar front, what he could have done but has not to date done was to order an investigation into the proper classification of the al-Harramain document.

      And I agree with this:

      Let’s face it, the fact that there hasn’t been any kind of rollout of orders on review and possible shake ups of the secret unconstitutional surveillance programs indicates they are not viewed in the same way as the torture cases.

      But, at this point, neither one of us has gotten to what the process is in DOJ (YES, I understand and have always understood the point you’ve been trying to make, but I’m not seeing the evidence you claim is there except that–indeed, some of the judges are working sua sponte). And I think your insistence that this is exclusively about process ignores a wide range of other possibilities, all of which are in play. THis is not exclusively a question about judicial process, and it cannot be.

      al-Haramain IS NOT parallel with the habeas cases–it’s just not. To insist it is ignores the consequences of al-Haramain and the politics involved in the Senate. The consequences for Bush are a lot more immediate. The consequences for Holder’s approval are likewise a lot more immediate. The consequences for the appearance of politicization are more immediate (which is why, while constitutionally I agree that Obama is in charge of DOJ, I disagree with in practice here). The consequences for immunity are important (if distasteful). And the consequences for ongoing wiretapping–which I assume Obama still wants to do–are important.

      So while it may be very easy to say “oh, he could do the same thing he did with the habeas cases,” that ignores the larger political situation.

      Obama’s a poker player. It made all the sense in the world for him to lay his hand down on detention policies immediately. For a large number of reasons–only 2 or 3 of them DOJ process issues–I can imagine why it would not make sense for him to lay his hand down on wiretapping. But that means we simply don’t know what’s in his hand–we cannot, from his non-action on this–make any kind of conclusions.

      I can envision a scenario where he’d do what he has done bc he doesn’t want to punish Bush and/or wants to make sure the telecoms get immunity. I could just as easily envision a scenario where he’d do what he has done bc he wants to first get his team in place and then pursue consequences for illegal wiretapping (though I admit this is less likely). I can also imagine two scenarios–both quite likely, IMO–where he doesn’t see any political upside to doing what he has done with habeas, so hasn’t, or where there isn’t the clamor to do something, as there is on habeas, so he hasn’t been following this closely at all and as a result has not been briefed on these proceedings.

      Yes, it is quite likely this is an attempt, through inaction, to avoid having to prosecute Bush for illegal wiretapping. And yes, Obama has ALWAYS been better on torture than wiretapping. On that level, this may well be an attempt to bury the uglier side of wiretapping so as to sustain it.

      But we don’t know that and nothing you can point to in process tells us what is going on.

  18. Mary says:

    43 – “Incidentally, it turns out the al-Marri review was done by Presidential Memorandum.”

    That’s the strawman argument. Of course the order to review al-Marri’s handling wasn’t done by pleadings to the court.

    That doesn’t mean that the President can STAY THE SUPREME COURT by issuing a memo.

    I don’t think even Addington would go that far, despite his misuse of the Egan case.

    • emptywheel says:


      I understand your point on process, really I do. And with your suggestion that Obama could have called for a review of the classification of the al-Haramain document, I agree a parallel is possible (though not politically parallel in the least). I agree that there is some involvement from DOJ (though neither you nor I are making an evidence-based case for precisely what that was yet). So I will concede that, politics aside, Obama could have done the same thing with al-Haramain as he did with habeas.

      But none of that changes the reality that these are vastly different issues given the politics. You can say, legally, they are no different (assuming Obama were to intervene by reviewing classification, which is far different from what you originally argued). But they are politically vastly different, and would be even if Obama wanted to be as aggressive on wiretapping as he has been on torture.

  19. pdaly says:

    I relistened to Marcy’s video where she asks Sen Whitehouse the question whether there is a way to get Holder to view the al-Haramain documents and have an accounting on this illegal domestic wiretapping issue before the statute of limitations runs out in March 2009. She adds her excellent point that this is very likely why the Senate has held up Holder’s confirmation to become head of DOJ–to prevent this accounting.

    Whitehouse responds first by immediately answering “I don’t know.”

    This is reasonable, but then he adds he’s “cautious about freestyling an answer for you, depending on where the classification lines are on some of this stuff.”

    The optimist in me thinks this could mean “will have to see if someone not yet in DOJ can be given the clearance to view these documents.” The cynic in me reads this as a stalling tactic and an admission that “it depends on what Obama wants to do” with this situation.

    While there is political fallout for Obama to initiate an investigation into improper classification of the al-Haramain document before Holder is confirmed (i.e., none of his DOJ picks confirmed by the Senate–no one to initiate a criminal case against wrongdoers), that same fallout occurs even if Sen. Whitehouse could get the al-Haramain document to Holder now before his confirmation.

    It seems the only solution (if Obama is interested in rolling back illegal wiretapping..I’m dubious) is to get Holder confirmed and have an accounting then.

    I’m at least pleased that Marcy gave notice to Sen. Whitehouse that she (and we) will be watching as the Senate allows this window closes on the SoL.

    • emptywheel says:

      Oh, I’m dubious too. All I’m saying is that the filings submitted thus far do not reflect an affirmative statement of Obama’s policy, even if they are legally one.

      But I do think there’s a whole lot more going on that means we can’t necessarily read what is going on.

      • pdaly says:

        Yes, you make a logical argument based on details currently known.

        The video is bothering me, though.
        Sen. Whitehouse’s admission he ‘didn’t know’ about the expiring SoL on the illegal domestic wiretapping is either genuine (and therefore disturbing, because it means neither he nor his staff are following this blog regularly) or it is a little white lie.

        I’m leaning towards white lie, because his phrase “some of this stuff” is plural, and the classified al-Haramain document is singular, I believe (although I’ve been inconsistent in referring to it in the plural). So “this stuff” implies the warrantless eavesdropping program which the current administration may or may not want to continue.

        • Hmmm says:

          I should think Whitehouse’s seeming fudge on what is currently classified and not yet disclosed to the public would be consistent with trying not to prematurely foreclose the possibility of keeping the secrecy of a Universal Hoover data storage program (if there is one) intact going forward. As contrasted against the already publicly acknowledged TSP data retrieval program. Point being, it might be that POTUSBO’s team has not yet concluded that it does not want (or believe it needs) to preserve the data collection prerogative going forward. Also consistent with Marcy’s points about needing time to consider the political fallout and the Bush administration criminal liability implications. In their position I would probably want to stick this thing in the deep freeze for a little while too.

          Not that any of this comes anywhere remotely near proving anything at all, I’m just sayin’.

        • bmaz says:

          Will nobody protect and defend the Constitution? Is the oath of office these jerks take just meaningless and a total joke? Yes, they ought to take a good long time to figure out what the “political implications” are from enforcing the law. And they also ought to be careful to make sure they keep enough illegal powers to keep neocons from howling, because that is oh so very important too. This stuff just makes me sick.

        • Hmmm says:

          If that is what is really going on, it makes me sick too. At the risk of stating the obvious, that’s why I bother to point out the occasional non-obvious possibilities — even when the likelihood seems rather low.

          I did have a verklempt moment on Wednesday when the WH Sr. Staff took the Oath live on national television. Couldn’t imagine any previous administration doing that — imagine a future per-walk of a WH staffer where they replay the offender taking the oath. Imagine Libby. It seemed designed to prevent that class of wrongdoing in those people. So I guess still have enough hope to tear up. It is devoutly to be wished that this is not just symbolism.

        • pdaly says:

          If no one in power is willing to defend the Constitution, my hope is that the NSA, with its penchant for outsourcing its work, has hired for preserving the catches from warrantless eavesdropping the IT people previously operating the WH and EO email archives. The data would still be unconstitutional but, I’m hoping, not too useful.

        • pdaly says:

          I guess I’ve seen too many Hollywood courtroom dramas, so I’d prefer to allow the legal endgame to play itself out in an end-of-the-season spectacular. Assuming there would be some big Whig Republicans in need of zebra suits at the end, I would also investigate whether our maximum security prisons are politics free–else we might need to identify a Democratic donor to pony up the money for a new maximum security prison.

  20. bmaz says:

    Everything they really need to know, including the fact that Walker was desirous of having their position, has been available since the entry of Walker’s order of January 5, 2009.

  21. pdaly says:

    OT: Since there was a delay in getting some email accounts and computers up and running after Tuesday’s inauguration, I wonder if Obama’s team had new fiberoptic cables and phone lines installed in the WH to remove any unknown splitters/secret routers.

    • Hmmm says:

      Not necessarily OT. If there is Universal Hoovering equipment in place — which is difficult or imposible to determine — then the nature of the technology is such that there is no way to know that rogue elements in USG, US industry, and/or foreign governments or industry don’t have full vision into USG’s internal communications. So the Bushies may be able to see everything POTUSBO’s team is doing.

      NB, WH IT architect (and purely coincidentally RNC IT architect) Mike Connell is unavailable to be asked about the systems as he is currently still seriously dead.