Obama Again Supports Bush’s Bogus Stance on al-Haramain, But Partly Punts on State Secrets

This time in the al-Haramain case.

The argument in this new filing is substantially the same as they made in January, particularly in their misrepresentation of Judge Walker’s approach to classified information. Once again, they suggest Walker has ordered the wiretap log declassified (though they do so less dishonestly than they did in January), when in fact Walker has ordered the government consider what can be declassified.

The Court then held that it would review, initially ex parte, the Sealed Document that was the subject of the state secrets privilege assertion and will then issue an order regarding a factual question at issue in that privilege assertion— “whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA.” Id. at 23. The Order then adds that fully ex parte proceedings under Section 1806(f) “would deprive plaintiffs of due process to an extent inconsistent with Congress’ purpose in enacting FISA Sections 1806(f) and 1810.” Id. Accordingly, the 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.” Id. The Court’s Order also “specifically rejected” the Government’s assertion that the Executive branch controls access to classified information, see id. at 21, and held that Section 1806(f) “leaves the court free to order discovery of the materials or other information sought by the ‘aggrieved person’ in whatever manner it deems consistent  with section 1806(f)’s text and purpose.”

That phrase, " initially ex parte," suggests that Walker would definitely review the document openly, when he said no such thing (and only required declassification of government briefs going forward). 

That said, there is a very significant difference. This filing defends the state secrets invocation of the past, arguing that the invocation of state secrets in this case has already been ruled to be proper.

The Court of Appeals has previously determined that plaintiffs’ case cannot proceed without critical information that the state secrets privilege was properly asserted to protect—including whether or not plaintiffs were subject to alleged surveillance and, in particular, the classified sealed document at issue in this case.

 And then it accuses Judge Walker of changing his stance regarding the use of the document.

The Court initially reviewed the allegations in the amended complaint to determine whether the case may proceed to Section 1806(f) proceedings. See Dkt. 57 at 2-8. The Court then considered and rejected the Government’s contention that the public evidence cited in the amended complaint was insufficient to establish plaintiffs’ standing to proceed under Section 1806(f) as “aggrieved persons” subject to the alleged surveillance. See id. at 9. In making this determination, the Court decided an issue held open in its July 2 decision: what the standard would be for determining whether the case could proceed under Section 1806(f), see id. at 10-12 (discussing standard applicable under 18 U.S.C. § 3504), and then decided for the first time that it was sufficient for plaintiffs merely to establish a prima facie case of alleged surveillance, see id. at 13.

The balance of the argument, then, focuses on whether Walker made the correct interpretation that 1806(f) trumped state secrets.

I will need to read closer, but I suspect the resolution of this will depend on how far state secrets extends. Does it prevent a judge from assessing evidence ex parte, which is all Walker has ordered (contrary to the misrepresentations of the government)?

Just as interesting, though, is the shift in this filing away from one of privilege, per se, and toward the legal issues themselves. Sure, Obama is supporting Bush’s crappy stance in al-Haramain. But this filing spends little time defending Bush’s invocation of state secrets, instead relying on the 9th Circuit’s prior ruling that Bush’s invocation of state secrets was valid. 

58 replies
  1. emptywheel says:

    Here’s a passage that I think shows how they’ve shifted:

    To risk or require the disclosure of privileged information while the Government challenges the legal basis for doing so would plainly impose irreparable harm—not merely on to the Government’s position in this litigation, but the grave harm to national security identified by the Ninth Circuit when it upheld the privilege assertion.

    They are now defending the privileged information, rather than the privilege itself (which is what they were doing in January). Since 9th Circuit has already ruled that the information is privileged, they’re not ruling on unitary executive claims to make their case. Similarly, while they argue the govt’s position in this case and national security could be harmed if Walker’s ruling is implemented, they’re not saying the privilege itself will be irrevocably harmed, which is what they had argued previously.

    • bmaz says:

      Agreed mostly; unfortunately the result is every bit as pernicious. The cretinous goal and posture is net the same. This is not a distinction that does much for me.

      • emptywheel says:

        Agree there. I just find it interesting to see how Holder digs his way out of Bush’s crappy unitary executive arguments while still maintaining the same policies.

  2. Mary says:

    I agree they are using the court’s prior acquiesences to Bushco against them, but I think it is a bit disingenuous for them to talk about the grave harm identified by the 9th cir.

    But Obama is primed to get another nifty WSJ op ed.

    And maybe in the sur sur sur replies Obamaco will flat out say what they mean – – Bush was right, we all die if Bin Laden learns we illegally and unconstitutionally wiretapped al-Haramain’s lawyers, and we thank him for “identifying” that for us.

    And whew – good thing Bin Laden won’t be able to figure out that we were … illegally and unconstitutionally wiretapping US lawyers (and lying to courts, hiding evidence, etc. while we were at it).

    It really is incredible. The “change” we get with Obama is Kagan and Holder jumping bed with Lindsey Graham, Bush policies of torture, state secrecy invocations to cover crimes, unconstitutional wiretaps and fibs to the court embraced. Boo freakin yah.

    All the finger steepling was just in lieu of having guts and integrity.

  3. JohnLopresti says:

    To me the difference in Boeing was multilevel, much of it diplomacy intrigue with UK, but many other OffTopic issues. Haramain might be interesting ‘heard’ in the Fisa Court, yet, the Fisc is nonadversarial, borderline administrative magisterial, in my view, ostensibly because the government usually does its 2″ stack of paperwork in quintuplicate. Times changed when telco signals became wholly digital. Beyond my initial impressions, however, there was an interesting draft article about the delayed count the quarterbacks in academia have called midplay lasting now these seven years, in the first installment of an article by Tulane’s Griffin, which maybe people have read already, readOnly, “The Bush Presidency and Theories of Constitutional Change”.

  4. earlofhuntingdon says:

    I’m sure the administration would like to extend “state secrets” to Soviet levels, and preclude a court from reviewing whether evidence met the requirements for excluding it or not. It shouldn’t succeed. As Glennzilla has taken pains to point out, state secrets was invented by 1950’s activist judges [sic] to preclude the use of evidence that would involve disclosing material that could compromise military or diplomatic relations.

    Avoiding embarrassment or the disclosure of patently illegal government activity is not what the courts had in mind. When the inability to disclose a state secret prevents a party from making arguments essential to its defense, the invocation of state secrets can require a court to dismiss a lawsuit. Obama, like BushCheney before him, doesn’t seem to think that’s enough protection.

    Congress should get busy putting in its oar about what it thinks the reach of state secrets should be.

    • MadDog says:

      And to make it very clear, what Judge Walker did was tell Holder & Co. to shove it where the sun don’t shine:

      The government is DIRECTED not later than February 27, 2009 to inform the court how it intends to comply with the January 5 order.

      Notice how he capitalized the entire word “DIRECTED”.

      I’m betting one could hear DOJ jaws drop all the way back to DC.

        • MadDog says:

          In reading Judge Walker’s denial to the DOJ on the Al Haramain v. Bush case, there’s this:

          Under the schedule established by the court, the United States’ reply brief was due on February 13. Instead, the United States filed its reply brief on February 11 and included therein the following:

          The Government respectfully requests that the Court indicate how it will proceed by 3 pm on February 13, 2009. In order to protect its interests, the Government plans to seek relief from the Ninth Circuit before the close of business that day in the absence of relief from this Court.

          (My Bold)

          IANAL, but as a life-long student of human psychology, I take the usage of the word “respectfully” to be its exact opposite.

          Typically, when someone says “respectfully” in such a circumstance, they mean anything but that!

          That seems to imply that the DOJ tried to steamroll Judge Walker, and by his response, he has having absolutely none of it!

          Again IANAL, but my layperson’s reading of Judge Walker’s denial says that he’s now told the DOJ they can’t appeal to the 9th Circuit and to sit down and STFU!

  5. bmaz says:

    Of course he did; didn’t you read my last post?? “gg” or whatever you do in that regard. Heh heh. But it is not just that he did it; he again exhibits how tired he is getting of the government’s bullshit. He has clearly come to the conclusion that the new boss is indeed the same as the old boss too. Ya gotta love it.

    • MadDog says:

      …But it is not just that he did it; he again exhibits how tired he is getting of the government’s bullshit…

      Amen brother, amen!

      I wonder if Holder & Co. are gonna understand the message: “You be in deep doo-doo here G-men. Make my fookin’ day!”

      • freepatriot says:

        I wonder if holder still wants to be the buyer of the bushco legal legacy

        what is supported by him sticks to him

        your date with karma is here, mr holder, and it looks like she ordered the lobster …

  6. Muzzy says:

    Looking at this through a political lens being the legal lay person that I am, is there any potential that there could be a rope-a-dope going on right now from Obamaco with an as yet unrecognized tripartite goal of 1) restoring proper balance and oversight of the Executive, 2) having some accountability of Bush lawbreaking actually occur, and 3) have 1&2 occur in a manner that shields Obama publicly from the appearance of going on a vendetta to prosecute Bush ?

    Is Obama’s stance in two recent cases involving state secrets just begging for Congress to advance the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege, or what ? Could it be that the current joust has an intentional appearance of casting Obama as the ‘opponent’ to justice when it’s really Obama that stands to see a more righteous change occur at the ultimate expense of Bush lawbreakers -all the while avoiding making himself a specific target for the outcome ? Please call out my glaring blind spots or frank disillusionment.


    • MadDog says:

      …Is Obama’s stance in two recent cases involving state secrets just begging for Congress to advance the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege, or what ?

      I’m guessing that would be too much of a move/countermove 11 dimension chess on the Obama Admininstration’s part, but the end result may be just as you suggest.

      Sometimes serendipity just happens. *g*

      • ANOther says:

        I am sure that if the end result is as Muzzy suggests, and everybody thinks it is serendipitous, no one will be happier than Obama.

        The government’s position in these two cases would make some of Obama’s campaign rhetoric hypocritical, and I don’t believe that he is a hypocrite.

        On the other hand Obama plays politics at the same, or maybe higher, level that Tiger Woods plays golf – so far ahead of the competition, that it is almost a different game.

        I was struck by Rachel’s introduction to her show yesterday when she stressed Obama’s commitment to the principles of Lincoln – he is a uniter and he is certain that that is what your country needs right now (I am a Canuck). That’s why he has tried to reach out to the GOP – if they throw that back in his face, that doesn’t make him look bad – it’s their problem. Similarly he cannot be seen to be aggressively pursuing the Bush administration, but if the Courts and the Congress do, then he is hardly to blame.

        For those who didn’t see his speech last night (Christy has the trancript), go read it. He didn’t whine about Judd Gregg, as Bush surely would have done, but dealt with the situation with a light comic touch.

        You guys are so lucky to have such an awesome president (he says, cowering from the expected deluge from bmaz and Mary).

        • bmaz says:

          So, tell me, you think Obama is all fuzzy, brilliant and wonderful in spite of the allegations I set forth in @20 above? Because if this is all the master genius politician’s acts as you and Muzzy contemplate, those are the cold, hard facts. You are down with that?

          • ANOther says:

            Your certainty is admirable and if this was a few years ago, I might agree with you. But, due to the Bush government, your country is essentially bankrupt and the only way out is to have a leader who is able to appeal to everyone rather than the 53%? he achieved in November. You can either cut him some slack – he’s only been in office for three weeks – or you can impeach him, and I’m sure that the GOP would support that.

    • pdaly says:

      I’m a legal lay person, too, and I doubt this is Obama secretly wanting BushCo’s legal edifice to crumble by pretending to be for BushCo while allowing the judiciary to take the “blame” in the public eye.

      Come on! If Obama were against BushCo’s principles [sic], he would loudly denounce them. From a political standpoint he might even gain political points. (Why do you think the Democrats won the house and Senate this year?) The majority of Americans would thank him for restoring the rule of law.

      Maybe you could argue Obama is too modest and doesn’t want to score political points arguing for the right thing to do. Keep a low profile and let the judiciary take all the credit.

      But even this stance would require Obama to believe one thing (believe in upholding the Constitution), pretend to do the opposite (not uphold the Constitution) so that Bush won’t look bad and Obama wouldn’t be accused of scoring political points. Then once Judge Walker glues the shreds back together in a court of law Obama would be free again uphold the Constitution without being attacked politically. Making Executive decisions based on the political optics is not leading this country.

      Simpler paradigm: Based on Obama’s actions/briefs to date, Obama believes in BushCo ideals.

    • bmaz says:

      Well that would just be a wonderful theory if there was even one shred of evidence that it was true; there is not. Secondly, that would make Obama even slimier than he already looks in this because it would portend that he is willing to violate the letter and spirit of the Constitution, set horrendous legal precedent, and sell out the Constitutional and vested interest in recovery of scores of citizen plaintiffs in the consolidated cases in NDCA; all so he can make a two cute by a half fucking political play that keeps his petty hands clean. If that is what he is doing, he deserves to be impeached on the spot.

      • Muzzy says:

        The way I understand Obama’s predicament, which could be oversimplified or plain wrong, is that with us not knowing what crimes are likely being masked by the claim of state secrets, the claim was applied in a manner consistent with present law, fallible that it is. It is another thing all together for Obama to look behind the curtain, see illegal acts being hidden, and selectively choose to dispense with the previous claim. It would be like Obama acting as an investigator.

        I agree with what ANOther said above:

        Similarly he cannot be seen to be aggressively pursuing the Bush administration, but if the Courts and the Congress do, then he is hardly to blame.

        The same end result can occur if Obama glides along with Congress and the DoJ after the laws can be amended so that Obama is not the one peering behind Bush’s curtain. Obama likes him his nifty WSJ op-eds, I’m guessing. He’s building a little pile right now, which is a lot better to set the grounwork for a second term than not having them if major BushCo accountability goes down.


  7. DWBartoo says:

    These scenarios suggesting that Obama is playing some kind of “game” with multiple layers of intent and subtle cleverness are quite amazing. And utterly, if not damnably ridiculous.

    Given the cost, literally, in blood, of securing both the Constitution and the legal framework, the Rule of Law, which has arisen from it, any convoluted “gamesmanship” such as is being suggested deserves, in fact demands, as bmaz most deliberately suggests, immediate consequence, of the most serious nature, and that is impeachment.

    If Obama does not understand this, then not only was his Harvard law education a total waste, but his capacity to govern wisely or well, whatever his poker-playing skills, is non-existent.

    This situation, the Bush-Cheney assault upon the principle of Constitutional rule of law, requires an honest, immediate, and unambiguous response. Period.

    The fact that we are not witnessing such a response can be interpreted in only one way.

    Either we have Constitutional rule of law or we do not.

    There is no middle way.

      • bmaz says:

        No, but if it was established conclusively that he was playing all this for mere political advantage while he frittered and burned thousands of innocent citizen plaintiffs, stripping them of their Constitutional rights in the process, then I think the thought ought to be discussed. But, again, I think this is not some stupid “grand game” I think this is his policy in action and, if so I disagree, but will live with it.

        • macaquerman says:

          I could have sworn that DW called for impeachment.

          I’ve been reading your thoughts and don’t find any great fault in them.
          I’ve gone from disappointed to suspicious and increasingly pissed-off.
          Would it be naive to hope that two more weeks might bring any improvement?

          • DWBartoo says:

            I suggested that if Obama, in fact is playing fast and loose, with Constitutional Rule of Law, and continues to do so, that impeachment is not only appropriate but necessary.

            And, unless my comprehension of the mother tongue has totally deserted me, bmaz has said the same thing.

            Perhaps though, bmaz, would like to clarify that?

            • macaquerman says:

              One of the things that the rule of law indicates is that you have to let the person commit the crimes before the indictment.
              Obama came into office with everthing already broken or fucked-up.
              He hasn’t been playing “fast and loose” all that long. Justice dalayed may not be all that palatable, but it’s sometimes the only justice on the menu.

    • bmaz says:

      Right. I would like to clarify that I do not think Obama is playing the convoluted 11 dimension chess game people bandy about, and I most certainly do not think he should be impeached; what I do think is that these are his honest principles and policies. In fact, I think that, examined closely, he has been telling us that all along, and I have never particularly had any illusions to the contrary. That, of course presents its own problems; nevertheless, it is still many light years better than where we have been for the last eight years, and I sincerely appreciate that.

      • DWBartoo says:

        Ah, but are we closer to Constitutional Rule of Law, yet, bmaz?

        Well, macaquerman, if Obama continues the Bush Doctrine, as it applies to trashing the Constitutional Rule of Law, what do you think should be done?

        Would either of you have favored impeachment for Bush?

        Perhaps you would have, but not for his assault on the Constitution?

        If so? Then for what?

          • macaquerman says:

            But Bush, like Reagan, got to leave office after completing his term.
            The rule of law long predates the Constitution and both have demonstrated flexibility and resilience.

          • bmaz says:

            Now that is a classic line. Hey, things are improving; it was never going to be instantly perfect, that’s not how it works. All things good are worth the struggle, and so we set forth.

  8. DWBartoo says:

    Perhaps we are in one of those eras when, as Benjamin Franklin suggested, in the run-up to Independence, in the days before the Constitution existed, that one should not speak clearly of one’s thoughts, but publicly present the view that one has no opinion whatever, that being the safer, less controversial route.

    Let us be circumspect, for our reputations, such as they are, are on the line.

    After all, one never knows who is watching, or listening.

    And we are not, are we, at the point where we must all hang together?

    I am just curious as to what ‘change’ has been recorded that affords the ready assumption that things, regarding the Rule of Law, are ‘different’, in any fundamental way, from what they have been these last eight years.

    Here I refer to something of ’substance’.

    But I shall not shout for impeachment until a bit more of the dust has settled.

    I did not, ever, accuse Obama of being a progressive, but I confess to have hoped for something indicative of somewhat more respect for the Constitution AND the ‘people’ than has been in evidence so far.

    And as I said, in my opinion, something honest, immediate and unambiguous IS required, even of Obama.

    • macaquerman says:

      Your sentiments are admirable but as you note it’s been eight years. I join you in desiring something honest from Obama and I think everyone wants him to do something that will allow us to feel “clean” again.
      If it continues to be the same old shit, we’ll all start talking impeachment.
      I hope I haven’t discouraged you when I was trying to suggest holding on to a bit of hope.

      • DWBartoo says:

        You have not discouraged me, nor has bmaz, for I have great respect for the both of you, as well as the firm conviction that when it is required of us, we each and together shall stand, as we already do, steadfast for the principles we all clearly value and cherish and shall willing defend the same with our all, macaquerman.

        It is always a pleasure (and an honor) to share thoughts with such as gather at the wheelhouse. I can imagine no better company.

        bmaz has said it succinctly at the tail-end of #44.

    • freepatriot says:

      And we are not, are we, at the point where we must all hang together?

      Ben was a really smart guy

      unfortunately for me, my family reached the point where we all have to hang together at the Battle of Cowpens

      since then, we’ve been bound to uphold the ideas of The United States of America

      it’s a voluntary burden that we’re sworn to live and die for

      so I basically gotta urge woe and dismay upon all enemies of the United States, foreign and domestic, stuff like that

      but in my heart, I’m a Californian …

      the Stimulus bill passed

      (smiles for miles)

  9. R.H. Green says:

    And then we have this:”Justice delayed may not be all that palatable, but sometimes its the only justice on the menu”. We’re in deep company here, an’ I like it.

  10. acquarius74 says:

    ALERT! ALERT! James K Galbraith has a diary up over at Oxdown. A real economist has come to call. Remember your manners, now, and say thank you and DIGG it.


  11. chetnolian says:

    Saturday morning here. Are we sure the pleading is not designed to have the point specifically decided in a court? That really doesn’t look too tortuous to me. Simply to have stepped back from the claimed privilege would have left the original argument moot.

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