BREAKING: The 9th Circuit Says State Secrets Can’t Halt al-Haramain Suit

In an unexpected move, the 9th Circuit has rejected the Obama/Dead-Ender attempt to stay the al-Haramain suit against Bush for illegally wiretapping it.

The order is short and sweet:

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

I presume the Obama/Dead-Enders may try to appeal this. But in the interim period, Judge Walker can review the wiretap log and see if–as expected–it proves that the Bush Administration illegally wiretapped al-Haramain’s lawyers. 

Update: here’s the brief from al-Haramain.

105 replies
  1. bobschacht says:

    Ha! Short, sweet, bipartisan smack down.
    Thanks for the good news!

    So, how fast do you think Judge Walker is going to move on this?
    What should we look for next? If, as expected, Judge Walker reviews the wiretap log and sees that it proves that the Bush Administration illegally wiretapped al-Haramain’s lawyers– what then?

    Mahalo nui loa,
    Bob in HI

  2. ApacheTrout says:

    Excellent news. Is the wiretap log in Walker’s possession? If not, I still am not convinced that this log will be produced. There’s a big part of me (the one that wears the tin-foil-hat) that won’tbe surprised when the Justice Department reveals that they can’t find the document, and that it was lost in the transition.

        • bmaz says:

          Yeah, I think so. The European office of al-Haramain still has their copy anyway as far as I know; it apparently was never retrieved, that has been part of why this was all such a freaking joke to start with. Not to mention that al-Haramain’s lawyers have seen the phone log and can testify to the contents that pertain to the case. Plenty to be worried about, the evidence disappearing is not among that.

  3. emptywheel says:

    And it gets better, for two reasons.

    1) Vaughn Walker, who is, as we speak, probably writing a ruling that says, “Yep, that sure looks like illegal wiretapping to me” has not yet ruled on the retroactive immunity suit.

    2) al-Haramain has very good reason to believe (ie, they’ve seen the wiretap log) that they were wiretapped on March 11, 2004–when we know Bush didn’t even have cover from DOJ.

    Lots of popcorn.

    • perris says:

      BUT marcy, what is your speculation as to why obama, knowing constitutional law, and knowing how week the case, would stand by bush’s motion?

      do you think it might have been an agreement he had with the outgoing president, full expecting the motion denied or did he actually want a ruling in his favor

    • phred says:

      WooHoo!!! Thanks for the great news : ) I love the fact that the ruling is so brief. Not much for reading tea leaves searching for wiggle room. As my high school biology teacher used to say, “short, neat, and to the point”. Heh heh.

    • FlakeyFoont says:

      How is it possible that al-Haramain has already seen the wiretap log? I thought the whole point of the government’s argument was to never let it see the light of day. Why am I confused?

      • WilliamOckham says:

        Because some idiot (or secret patriot, I’ve never been sure) in the Treasury Department accidentally sent it to the lawyers in batch of other papers. The whole story is great. I’m sure you can find it on the web.

      • LabDancer says:

        You have to read backwards on the history. The wiretap log [what everyone is assuming this specially sealed document is] was “inadvertently” produced to the lawyers for al Haramain in the context of an early separate civil proceeding, one that predates the claims made in this one. Without suggesting this does real justice to that history, the upshot is that various & sundry plaintiffs claiming damages arising from 9/11 have pursued damages against various & sundry Muslim organizations in the U.S., including al Haramain; plus the government took action to seize al Haramain property in the U.S., including forcing the sale of its land & buildings in Oregon, the proceeds from which AFAIK are still being held onto by the government. I’ve raised this a couple of times [& I’m far from alone], but as far back as Ron Suskind’s 1% Solution we’ve known of the Bush-Cheney administration’s regard for such financial shutdowns as the ‘jewel in the crown’ of their response to 9/11 — though I’ve felt from the get-go that, subject to successful invocation of state secrets, this was more of a ticking timebomb.

    • Petrocelli says:

      Dammit, after lurking for the better part of 3 days, I go off to share Jello & Pudding to the neighbors’ kids and miss all this fun.

      Marcy, your 2nd point is why I’m waiting so eagerly for Judge Walker’s ruling.

    • MarkH says:

      2) al-Haramain has very good reason to believe (ie, they’ve seen the wiretap log) that they were wiretapped on March 11, 2004–when we know Bush didn’t even have cover from DOJ.

      Lots of popcorn.

      I like a dash of salt and lots of butter, how ’bout you!

  4. perris says:

    I presume the Obama/Dead-Enders may try to appeal this. But in the interim period, Judge Walker can review the wiretap log and see if–as expected–it proves that the Bush Administration illegally wiretapped al-Haramain’s lawyers.


  5. perris says:

    ok, here’s what I think might be happening;

    by obama going along with bush’s position yet not adding substance, he is avoiding the particent push back

    I am hoping that’s what happened

  6. bmaz says:

    Egads, very bad news: I tried calling Walker’s chambers, and he appears to be out until Monday. Even his docketing clerk is out and on voice mail only.

  7. klynn says:

    It seems like Obama’s team saw this coming and had everything to gain politically to dead-ender it…Like not hearing the screaming, “partisan politics.”

    This way, it appears the courts made the decision…Just my take.

  8. WilliamOckham says:

    Wow, this is a complete slapdown for the government. The Court comes out and says that everything the government was flat wrong. Bonus- They even footnote the Rosen CIPA decision that just came out as backing up Walker’s discretionary right to control classified information.

    • WilliamOckham says:

      I misedited this. It should read:

      Wow, this is a complete slapdown for the government. The Court apparently agrees with the plaintiff’s brief which comes out and says that everything the government argued was flat wrong. Bonus- They even footnote the Rosen CIPA decision that just came out as backing up Walker’s discretionary right to control classified information.

  9. phred says:

    EW, does your updated quotation imply a certain lack of competence on the part of BushCo lawyers by blowing off a deadline? Not smart, when you’re trying to end run the legal system.

    • emptywheel says:

      That’s al-Haramain’s argument.

      The order just says “no.”

      But this order throws out both the stay and the appeal. Obama may well try to appeal it before Walker issues his order. But at that point we may well have a ruling thta “George Bush broke the law, and he did it against the warning of his DOJ.”

      • phred says:

        Thanks for the clarification EW. I followed klynn’s advice and clicked through to the brief and realized my mistake. I’ll be keeping my fingers crossed that Judge Walker is back in the office bright and early on Monday : )

  10. Beerfart Liberal says:

    BREAKING: The 9th Circuit Says State Secrets Can’t Halt al-Haramain Suit

    Did the court say that or just that the order was not appealable at this time?

  11. Mary says:

    Section V of the brief is very funny – Section VI on mandamus, although not really referenced in the order, has some of the most important arguments I think, and the 9th pretty much has just said not only that the matter isn’t ripe for an interlocutory appeal, but that the prior rulings on Judge Walker getting to make the “need to know” determination referenced in the Exec order are not clearly erroneous. That’s prety good stuff.

  12. punaise says:

    from the brief:

    BARACK H. OBAMA, President of the United States, et al.,
    Defendants and Appellants.

    that’s not change we can believe in.

  13. Mary says:

    35/ 41 I was just getting ready to ask you if you had a link to a memorandum for the opinion *g*

    The procedural issues re: the July order kind of bit them in the butt too, a trap for the unwary kind of situation.

  14. Mary says:

    58 -I haven’t really followed the procedural history or even some of the rulings, so I am getting this just from the brief references. But as I understand it, the July order that said what they didn’t want said (that FISA trumps states secrets) was coupled with a ruling that was an ostensible “win” for the DOJ (you always have to watch those “ostensible” wins) Bc while the language on FISA trumping was bad, the net effect was that the Judge dismissed the Plaintiff’s Complaint.

    But it was a dismissal with leave to refile, NOT a dismissal with prejudice. So they (plaintiffs) amended taking Walker’s admonitions to heart and refiled.

    If that is correct, I think it was something that inexperienced or just not-too-withit lawyers might have done – to be thinking lalalalala, we just got their complaint dismissed lalalala instead of JEE MIN EE did you see what that order says about state secrets – damn we need to appeal that sucker as interlocutory before they get around to filing their amended!

    Of course, I’m a believer in shooting for interlocutories when you might have a shot at them and not everyone is. But if you don’t, it’s a piss poor idea to come back a few months past your deadline and try to get a DIFFERENT order timely certified for interlocutory and then try to attach your old order that you screwed up on as also before the court on pendent jurisdiction.

    If they were going to do it (and I haven’t seen their briefs) they needed to just bite the bullet, call themselves idiots, and make the best argument that they could that national security shouldn’t be put at risk bc they were dweeblets and throw themselves under the bus for the argument. It would still have lost (I mean, how hilarious is Section V with the argument that the FBI has publically admitted through high officials that it used surveillance in the al-Harimain investigation, but DOJ is trying to say that people still might not realize that means that the Subject of the investigation, al-Haramain, was surveilled *g*) , but at least it would have been better than the pendent jdtn argument IMO.

  15. LabDancer says:

    This is terrific news — although not unexpected when one considers that Judge Walker’s approach is completely within the clear direction of the Circuit Court of Appeals from last July.

    A degree of caution: we are not yet clear through to the stage where the al Haramain plaintiffs are necessarily going to be able to pursue their case through to judgment. We know Judge Walker succeeded in devising a process that adheres to the CCA direction [because the CCA at least says so], but the direction itself aimed at getting to the second part of the third & last hurdle: whether the government will be hampered in defending against the claims by having to resort to state secrets to do so.

    And as long as we’re on the theme of consistency, on the issue of whether the government will press on with an appeal, that would seem at least as likely as Judge Walker’s ruling in early January & this order today, given the government’s appeal in the Mayfield case [referred to in Judge Walker’s ruling] — which is the case that directly raises the constitutionality of FISA 1978, as issue that Jon Turley has mentioned on several occasions in recent appearances on MSNBC.

    Still: it does not appear any more plausible that we will be denied confirmation of Bush having illegally wiretapped these al Haramain plaintiffs.

    • emptywheel says:

      Given the tone of al-Haramain’s brief, I get the feeling they’re just saying “review the goddamned log already.” It’ll all fall into place from there.

      • LabDancer says:

        “It’ll all fall in place from there”

        More like it’ll all come down like a dominoes set up — for the government at least.

    • bmaz says:

      I don’t thinks so, Walker has boxed them out in that regard. Unless the Supremes pull another whopper out of their robes and overturn this, it looks to me like Walker is going to woodshed this crap once and for all. It is crystal clear, to me anyway, that Walker is chomping at the bit to make the finding that the govt. surveillance was illegal, he has just been dotting Is and crossing Ts to make sure everything was buttoned down and unassailable.

      whoever above that said Walker set a trap, that is exactly what I have been trying to get across for a long time. He has been meticulous, methodical and brilliant in how he has gone about this. Again as I said before, he is on a mission.

      • LabDancer says:

        I’m not going to argue against this, & anyway, this order today means that time will tell. The larger framework, IMO, remains the unconstitutionality of even the FISA 1978 in relation to the 4th Amendment, &, as William Ockham remarked in his recent parlay with you here, that from all appearances the only instances of the government having invoked state secrets all smell of precisely what the SCOTUS said in Reynolds the government should not use it for: to cover up its own fuckups.

  16. TarheelDem says:

    Is it now time for Holder and company to drop this instead of appealing it? Is that what’s going down? The old college try.

    • CasualObserver says:

      I wonder if they might do that. OK, they’ve tried, the effort got whacked, they have other things to do than defend everything the previous admin. did. Enough–let it go.

      If Obama and Co. don’t want to look back, fine–let the judicial branch do it…

  17. WilliamOckham says:

    Some questions for the lawyers:

    1. If the government wants to appeal this dismissal, who do they appeal it to? Do they request an En Banc hearing or does it go directly to the SCOTUS?

    2. Will this same 3 judge panel hear all the appeals from this case?

    3. Isn’t the gig up for the government the minute this log gets entered into evidence?

    4. Is there a statute of limitations on the civil penalties under FISA?

    • bmaz says:

      1) Probably would request en banc an.d apply for cert. but note that the 9th is unique in that en banc is not the entire court, but an eleven judge subsection thereof

      2) Not necessarily.

      3) Yes

      4) There is a statute for filing of the action, which I think is two years, but am not positive at all on that.

      • LabDancer says:

        [1] I agree.

        [2] I agree. Well — obviously the panel was 3 & en banc here happens to be 11, but in this case, I’d be surprised if the 11 didn’t include at least 1 of the original panel of 3, & not surprised at all 3.

        [3] Yes, certainly for our purposes; but not necessarily for al Haramain’s purposes [tho it appears bmaz is betting “yes” on that front as well, whereas I’m sitting that one out].

        [4] I can’t find a specific limitation in the statute. Silence on this point generally means 2 years in purely civil actions, but can be arguably less than that if the claims engage a particular government function where a pre-existing statute imposes a lesser period.


        [a] “committing a a criminal offence” AFAIK is not covered in any larger US statute bearing on foreshortening of limitations,

        [b] unlike with the prosecution of most criminal acts to the extent the same are subject to time limitations, the calculation of limitation periods in civil actions is generally subject to the principle of discoverability, & in any event

        [c] it appears al Haramain initiated legal action well within any arguable time limitation.

        Moreover, I’m not aware of any defendants having raised a missed time limitation in defense of these claims [though I admit to not having reviewed all the court filings in the legal proceedings that came before this one we’re interested in].

  18. JayGR says:

    Isn’t it better that a court decide that the argument fails on the merits so that NO administration can do use in the future rather than the Obama administration simply backing off of the argument?

  19. PJEvans says:

    First thing I did, when I saw that the court had ruled on this, was to come over here to see what y’all had to say. (The major media were a bit slower to catch up to this.)

  20. Pat2 says:

    Not being of a legal mind at all, I still perceived this as a perfect chess move by the new administration, especially when weighing how the current and former president’s viewed the Constitution: one as sacred, the other as Charmin.

    • DougWatts says:

      I completely disagree. The new administration is falling in lockstep with Bush on these constitutional issues regarding executive power. This is not some “secret ironic plan.” The Obama administration seems very determined to retain for itself the right to use the vast executive powers that Cheney created. They do not want to give them up. The genie is out of the bottle. It is very disturbing.

        • LabDancer says:

          Well, I’m not nearly so sure of what you & Doug Watts are agreeing on. I mean, the EFFECT & the APPEARANCE are the same, but the MOTIVATION may not be the same, & nor does it require buying into 11D chess to support that. For example, here’s one possible motivating factor: floodgates.

    • MadDog says:

      While I’ve not yet located Steve Rosen, I doff my hat to you Leen because in the comments section is commentary from Wendell Belew.

      Wendell Belew is the lawyer that was illegally wiretapped in case of the al-Haramain suit that is the subject of this very post.

      • Leen says:

        If this is “the” Steve Rosen roll on down that thread
        Posted by Steve Rosen, Feb 27 2009, 5:12PM – Link

        Readers of my blog ( know that I have been on the whole quite positive about Obama’s Mideast team, as I was in a Jerusalem post op-ed ( But Freeman is a very different kind of appointment. If the issue with Freeman was just doing business in the Arab world, that would not be an issue at all. But he took $1 million from Saudi Arabia for what he, not I, called public relations activity in the United States. That is not an academic or ordinary business activity. And his writings on Israel are full of vitriol, completely unbalanced. He is anything but “even-handed.” Freman is an ideologue where Israel is concerned, not an analyst.

  21. orionATL says:

    why was this “unexpected”?

    i thought the ninth was the most – maybe the only – liberal* appeals court left in the u.s. of a.

    *opposing abusive,intimidating, or coercive use of government power against individual citizens.

    • emptywheel says:

      I thought they would at least stay the decision. bmaz thought it was 50/50.

      Once Walker reviews that document on Monday, it’s hard to put the genie back in the bottle–not for state secrets reasons (Walker’s not going to tell the content of the document). But bc Walker will likely affirm that Bush broke the law.

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