Vaughn Walker: Okay Mr. Holder, I’d Like to See YOUR Work Now
Judge Vaughn Walker, who is preparing to rule on whether telecom retroactive immunity is constitutional, has given the parties a new homework assignment (h/t MD). He has asked for a brief addressing this question.
Nonetheless, section 802 appears to contain “literally no guidance for the exercise of discretion” by the Attorney General. Whitman v American Trucking Assns, 531 US 457, 474 (2001). It appears to leave the Attorney General free take no action at all or to take action to invoke section 802’s protection on behalf of one or more “persons” based on any consideration of his choosing; no charge or directive, timetable and/or criteria for the Attorney General’s exercise of discretion are apparent. The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414,
425 (1944):[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.
Now, I invite the lawyers to correct me, but I think Walker, probably having taken a peek at that document he’ll one day review in the al-Haramain case which proves the Bush Administration was violaing FISA, is likely looking for clarification about what Congress meant when they said the Attorney General had to certify something as legal.
If Congress said the AG had to certify something as legal, he seems to be asking, is the AG doing the will of Congress is he says something is legal when it’s clearly not? Or, were they really asking the AG to make an assessment of the legality of the activity?
That’s my guess, anyway.
But what I find particularly interesting is this part of the order:
In their supplemental briefs, the parties may paraphrase and/or refer to arguments made in previously-filed briefs, but should not repeat them verbatim.
I think that’s judge politesse for,
Say, Mr. AG, I’d really appreciate seeing some of your original lawyering work on this one, please. I’ve seen what the dead-enders want to give me, and I’m not really interested in seeing their stale arguments rehashed again. Unless, of course, you’re really willing to adopt their completely indefensible position as your own?
Ah. I’m probably reading too much into this. But it does seem clear that Walker wants something that is guaranteed to be the handiwork of the Obama Administration.
Hope Mr Holder has a productive two weeks.
He won’t be bored!
He can claim that all matters pertaining to Chiquita are a State Secret.
It’s kind of a tradition for the President to select a lawyer to be AG.
It also been a tradition, excepting people named Thomas, for lawyers not to exhibit qualities suitable for sainthood.
Lawyers are the kind of people who routinely insist that lawyers aren’t to be chastised for the sins of their clients.
Would loved to have seen Chiquita held accountable. They got a good lawyer. People in Columbia died for Chiquita’s actions not Holder’s. Essentially justice lost for the dead Columbians.
There’s precious little justice in this world. We used to have a fair share of it here. Maybe we can hold on and it would seem that Holder has a chance to help.
Maybe he is a good lawyer. We surely could use one.
The problem is, however, that Holder didn’t represent his client very well. Chiquita got hammered a little bit and Holder got the executives off personally at his client’s, Chiquita’s, expense. Lawyers are not supposed to be serving masters other than their clients. He did.
Everybody in the al-Haramain case knows exactly what the contents of the phone log are, and exactly what they mean. When the public finally sees the document, you will really understand how butt simple stupid and clear cut this all is. It is literally a phone log and is so, on it’s face anyway, innocuous that it could be on any one of our desks. The difference is that this phone log details call that are demonstrably illegal and unconstitutional. That is the only basis for the state secrets assertion at this point, it is not about sources and methods, they are not on the document; it is not about other cases, they could be redacted. It is about US governmental criminality pure and simple.
I think he knows the language in the act is BS and is too vague; doesn’t set any real parameters that are capable of intelligent judicial scrutiny, and he is making sure that the government (and plaintiff to a lesser extent) has had a chance to brief their argument before he rules to this effect.
Ya think?? Heh heh. Gotta love Vaughn Walker!
Walker is clearly expecting a defense of the constitutionality of the statute from Holder, or an admission that it isn’t constitutional because it doesn’t contain any limitations on the action of the AG. I’m going with unconstitutional. The discussion here has persuaded me that it has no limits on the discretion it gives the AG.
Yeah. It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.
Is it not just a case of obstructing justice by declaring that documents are of state secrets and implying that they hold some national security importance when in fact after they are reviewed it is proven they are as you suggest just phone records and help prove that an illegal wiretap was imposed. Please keep in mind I think I realize the issue being discussed is whether Holder as new AG will follow the former AG’s declaration regarding the phone log or something altogether different. I just do not understand with my simple reasoning how once one of these cases regarding the Bush Administrations asserting national security issues and secrecy is debunked that many others will be in question. Again a obstruction of justice issue.
Walker to Holder: Defend the indefensible in your own words. Use additional pages if necessary.
Good move.
Nuh uh.
He’s still holding Holder to 20 pages!
But Walker said nothing about font size, margin width, or even the size of the paper (8.5×11 letter, 8.5×14 legal, or NYTimes broadsheets?) . . .
Well, probably anything under 10-point size will get marked down for lack of legibility. Doing it in, say, Flyspeck (4 pt), would be a really bad idea, no matter how much it would let you fit into that 20-page limit.
I’m going to enjoy counting the circles in the logic Holder presents. It could keep me going all night….
I have had a serious admiration going for Vaughn Walker for quite a while now. It is still growing. If he follows through to all the way to where he appears to be headed, I may have to leave my wife….
So AG Holder, time to show the Judge your cards.
EW,
You forgot,
“…file on or before February 25, 2009..”
Mark your calendars!
Is Walker telegraphing his intent here? “Unless I see something new, pronto, I’m going to rule for the plaintiff. Start writing. Surprise me.”
On a related note: if Walker finds that the AG did not fulfill the will of Congress, so that the classification serves only to hide illegal actions, can the classification be reversed, and the AG’s argument fails? You may have noticed that IANAL….
NAL either.
First, state secrets lies with the POTUS, not AG, so it wasn’t independently any AG’s deal.
What the AG gets to decide is whether or not the wiretap program was legal. Mukasey said it was and on that basis, all teh appeasers are waiting for Walker to snap his fingers to give the telecom immunity for spying on you and I.
What I think Walker is trying to do (again, NAL), is to establish the constitutional lack of basis basis for immunity in as many ways as he can–all while invited Obama to use an out–so that when he rules against the telecoms (for EFF, in other words), he will have his i’s dotted and t’s crossed.
Ealier, he has suggested that the immunity provision makes the Ag into an Article III judge–leaving room for Scotus’ Justice Kennedy to rule that this is a separation of powers issue and that only an Article III judge can decide whether or not the telecoms broke the law.
This time around, I think he’s playing with teh change in Administrations to say that Holder has to make his own determination whether this is legal (remember, that as of 10 days ago, Holder hadn’t been read into this program) in terms that fulfill the intent of Congress.
Yes. Walker is making sure that the defendants have had every opportunity to lay a record, and that Obama as well as Bush has done so, on all the angles angles of the issue. I think he knows which way he is going to rule and wants to insure that there can be no argument that they didn’t know to brief fully the issue or didn’t have the chance to so so.
Huh. I wonder whether there is any chance that the Obama DoJ is letting Walker do their work for them here. Or at least letting him provide cover for getting the right thing done. Reminds me of Conyers’ style.
Walker is calling them on crappy drafting. The amendments say that you can’t go after someone for wiretaps if the have the court order ordinarily contemplated under old FISA, or the kind of AG certification that was recognized by law back when or is authorized by the provisions of the Protect America Act, yada yada (statutory outs) and then moves on to the non-statutory out.
For the non-statutory out, though, the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.
So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion. This is different from, but birthed in the same building as, my concern/argument on the due process aspects of being able to arbitrarily carve out classes of those who have to follow the statutory rules and those who don’t – those who can recover under the statutory recovery provisions or arbitrarily creating classes who can’t recover.
Pretty good admin law point from Judge Walker IMO. But I’m not sure what he does with the legality of the programs if Congress gives the AG the discretion to insulate, but no standards on the exercise of that discretion.
I do, particularly, like the direction to *turn in your own work product*
Well, I thought of you when I analogized it to a kind of vagueness issue. Not in the traditional sense maybe, but still he is effectively saying “hey, look, this is the standard by which you can bounce a case out of existence and there are … no standards”. To me this is the equal protection you (I think it was you, right?) were trying to shoehorn in the other day to another matter (al-Haramain?). And I think that is right as argued here. It really is a provision openly permitting arbitrary and capricious application without regard to basis.
ALL exercise of discretion–regardless of standards inthe statut are subject to review ofr ebing arbitrary and capricious–I would even argue that with respect to pardons (though on the pardon thingy I may be a minority of one)
However, without some statury guidance, it’s hard to show (absent a Rod Blagojevich type tape) that the exericsie if discretion falls outside actual legal discretion
Very helpful. So this issue Walker is raising is, when Congress said suits get dismissed “if the Attorney General certifies” to the Court that X, Y, and Z happened, Congress meant that the AG could choose to certify or choose not to certify, irrespective of whether X, Y, and Z actually happened.
I think it’s unlikely the Supremes would buy this argument. They’re more likely to say that what Congress meant was that when the issue comes up in a suit, we expect the AG to look at the facts of whether X, Y, and Z happened, and if they did — it’s a simple factual finding, not a legal analysis — to so certify. That plausible reading makes sense of the statute and preserves Constitutionality (and is thus preferred).
And since the prior AG has already made the certification, the point is moot.
What is the counter-argument to this?
DIng ding ding. I think Mary has nailed it
Before giggling too much, I’d think about what positive Walker is putting Holder in. If Holder tries to defend the indefensible, then he loses all cred in his first month on the job. If Holder effectively agrees that it’s unconstitutional, then he makes Obama – about whom we have argued whether he counts as a constitutional scholar – look like an idiot for voting for it.
Obama was an idiot for voting for it. You think that should remain a secret from the great unwashed?
touche
Sorry, I try to live in the reality-based world. *g*
Question. While on another forum I read an argument that used many court cases to back its claim that the Bill of Rights can be overridden by state laws. Is that true? Doesn’t the Bill of Rights apply to every person in the US? Can any state pass a law that says that whatever does not apply in this state? Or, since the main subject was about the 2nd amendment, is that the sole amendment that can be overridden by the states?
Just wondering what exactly and who the constitution and the Bill of Rights covers. Can a state say that women can’t vote? Can a state pass a law about state support of religion? How about Brown v BOE?
After years of total failure within this cabinet position Holder MUST at all costs display his strength and without question demonstrate his intention to be a man of justice and not a politician.
Although thee are times I’m really tempted to lose hope in the process, there are times that judges like this demonstrate that there are some trying to do the right thing.
.
Holder really needs to remind himself of what he’s there to do – remember what our legal traditions are supposed to be and uphold them. If he starts trying to remember who said/voted for what and tries to write the brief to cover all the a$$es involved, he’s going to tie himself (and Obama) in knots.
it occurs to me that this might be a little poker obama is playing;
if he does not file a brief, says he supports the president’s position knowing full well that position will not stand, he looks like he is defending the president and the wing nuts have to keep quiet about that, when in fact he had done nothing to defend them
this might play out exactly the way obama wants it to and he’s willing to take the political hit
man I hope that’s what’s going on here
perris,
I hope you’re right, too, but trying to keep up with all of the Byzantine political possibilities (and taking into account all of the possible motives of the players involved) does not fill me with a lot of confidence.
I had hoped that the new president would announce something like an explicit 100 day period during which he would act to undo the entire package of unconstitutional measures and/or remedy wrongs that had been committed.. including telecom immunity and illegal surveillance. I guess this was too much to ask… and we were overcome by events on the economy.
I just have this very uneasy feeling that what’s going on here has little to nothing to do with the LONGTERM good of the country.
Jane up on social security reform.
Does the briefing of then House Majority Leader Tom Delay on the day after Card and Gonzales visited Ashcroft in the hospital have anything to do with Gonzales trying to (pretending to) “ascertain whether the will of Congress has been obeyed”?
In case you missed it USA Today has a poll about investigating Bush crimes.
It’s pretty clear that the public and the media aren’t on the same page. An earlier Washington Post poll showed basically the same thing.
Poll: Most want inquiry into anti-terror tactics
snip.
29 – he WILL file a brief, or at least the lawyers on the case will. BC Walker might find them in contempt if they don’t.