Obama’s FISA Headache

As I reported, the 9th Circuit has rejected the Obama/Dead-Ender appeal on the al-Haramain case. 

We’re not out of the woods yet (apparently Judge Walker is out of his office until Monday, and Obama and his DOJ presumably are not). But here’s some context on why the 9th Circuit’s rejection of Obama’s appeal is so significant.

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

But there are at least three other reasons why this is important.

Al-Haramain’s Dates

I pointed out in this post that al-Haramain has reason to believe (and remember–they’ve read the wiretap log) that they were wiretapped on, among other dates, March 11 and March 25.

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

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

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

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


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

This means that any review arising out of this proceeding will not just focus on the larger illegal wiretap program, but on Bush’s actions on March 11, 2004, to override the advice of DOJ and allow the program to go forward only with the approval of his then-White House counsel, Alberto Gonzales.

Statute of Limitations

I’ve been assured by smart prosecutors that there is no way a prosecutor could put together an indictment in a week or so. But nevertheless, we may well have Judge Walker’s ruling on whether al-Haramain was illegally wiretapped on March 11, 2004 before March 10, 2009, when the five year statute of limitations for the FISA violations on that date run out (that’s a week from Tuesday).

Obama’s DOJ is still likely not to indict on this issue. But it will mean we might have evidence that Bush broke the law before the statute of limitations runs out for his crime.

Retroactive Immunity

Judge Walker has his own issues with the retroactive immunity provision in the FISA Amendments. Those issues won’t be mooted legally if, before he rules on whether retroactive immunity is illegal, he reads a document that proves that the illegal wiretap program that Congress attempted to immunize was, in fact, illegal. After all, many of the Members of Congress who voted for immunity knew they were immunizing illegal action (much to their shame). 

But there are two ways it may affect things. First, politically, it’ll be a lot harder to attack Walker’s decision that retroactive immunity is unconstitutional if everything the dead-enders like Kit Bond have been telling us for the last several years has been proven demonstrably wrong. Sure, I guarantee you that Kit Bond will say Walker’s decision (if he rules that retroactive immunity is unconstitutional) is wrong and sure, he’ll harp on al-Haramain being a dangerous charity with ties to Al Qaeda. Nevertheless, a ruling that the program was illegal and that the content of US persons was not minimized will make that a tougher battle.

And remember the nature of the Obama disagreement with the telecoms wrt retroactive immunity. The telecoms say the FISA Amendment mandates the AG to certify if they were wiretapping because Bush told them to under certain circumstances. Obama, however, says that the AG retains discretion on whether or not to certify in such cases. 

… the United States does not join the Carriers’ argument that if necessary the Court should interpret Section 802 to require the Attorney General to file a certification whenever the factual predicates are met (Carriers’ Supplemental Br., (Dkt. 571)). By its terms, Section 802 imposes no such requirement, and this Court should not create one. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 n.16 (1993) (“we may not add terms or provisions were Congress has omitted them”). There is no need for the Court to add a requirement not contained in the statute since it is well-settled that the non-delegation doctrine permits Congress to leave the decision whether and when to file a certification to the Attorney General’s discretion.

Now, I am not imagining that just because Walker declared the wiretap program illegal Holder would un-certify the telecoms for the retroactive immunity. But we’ve got Obama on the record stating that the AG gets to decide at his discretion whether to grant immunity. And Holder might be able to claim that Walker’s ruling is just the kind of unexpected thing (completely foreseeable, yeah, but Holder can claim ignorance since Bush hadn’t read him in on the program yet) that would prevent him from certifying the telecoms.

Again, I don’t think that’s going to happen. But Obama’s stance on immunity means it can–which means (unless Walker and the Courts above him rule retroactive immunity unconstitutional) it’ll be Holder’s decision alone to make. 

Which is why this ruling creates multiple layers of headaches for Obama now. As if the economy wasn’t enough. 

(Note, drational has a good diary on this over at the Great Orange Satan.)

61 replies
  1. MadDog says:

    I was going to say “You can hear the involuntary puckering of assholes all the way from SF to DC.”, but as this is a family-friendly blog, I decided I’d better not. *g*

  2. AZ Matt says:

    OK Marcy, take a breathe. Now another one. Now check and see if you have a beer in your fridge. If you do then take one and consume it. After all you need to keep up your strenght over the weekend.

  3. bmaz says:

    Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal.

    May not be that easy. The secure location for the document is not in Walker’s court to the best of my knowledge. I bet the govt. jerks him around producing it.

    • emptywheel says:

      It may be. He ordered them to get it to him–I presumed his courtroom–in his January 5 order, didn’t he?

      1. Within fourteen (14) days of the date of this order, defendants shall arrange for the court security officer/security specialist assigned to this case in the Litigation Security Section of the United States Department of Justice to make the Sealed Document available for the court’s in camera review. If the Sealed Document has been included in any previous classified filing in this matter, defendants shall so indicate in a letter to the court.

      There has been no discussion of their failure to do so (and they did do the preliminary work to get Eisenberg his clearance, so we can assume they did do what he ordered to a significant extent).

      If that’s right, then Walker has had the document since January 19 (a not insignificant date, of course).

  4. bobschacht says:

    I wonder if the Brits have the right phrase for this: “Too clever by half”?

    Often you’re better off if you do the right thing the first time you’re confronted with a problem, rather than trying to put off the day of reckoning by continuing the status quo ante. Karma will not be denied.

    Bob in HI

  5. MadDog says:

    Oh, and I gave a h/t to Leen on the previous post for this:

    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.

  6. bmaz says:

    I’ve been assured by smart prosecutors that there is no way a prosecutor could put together an indictment in a week or so. But nevertheless, we may well have Judge Walker’s ruling on whether al-Haramain was illegally wiretapped on March 11, 2004 before March 10, 2009, when the five year statute of limitations for the FISA violations on that date run out (that’s a week from Tuesday).

    Two things. I know some of those smart prosecutors, and I love em, but it can be done in a narrow fashion to protect the statute. Also, would the 25th also not still be in play? When did they move off of the WH Counsel undersignature?

    • emptywheel says:

      We don’t know for sure–though my handy-dandy timeline suggests it didn’t happen before March 30 and may not have happened until May.

      March 30, 2004, briefing from Comey to Ashcroft: OLC 65 is a five-page document (plus an electronic file), dated March 30, 2004, entitled “Briefing for AG.” This outline for a briefing to be provided to the Attorney General by the Deputy Attorney General prepared by Department staff includes a summary of preliminary OLC conclusions concerning the TSP and other intelligence activities; a discussion of issues for decision concerning these intelligence activities; a description of advice provided by OLC to other Executive Branch agencies and components concerning these activities; and an identification of legal issues requiring further discussion.

      May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.

      Except the SSCI report said “not more than 45 days” (IIRC) which would bring you to April 26 or 27.

  7. MadDog says:

    …And Holder might be able to claim that Walker’s ruling is just the kind of unexpected thing (completely foreseeable, yeah, but Holder can claim ignorance since Bush hadn’t read him in on the program yet) that would prevent him from certifying the telecoms…

    However unlikely, twould make my day to imagine poor ol’ Kit Bond: “No, no, noooooo! Not after I screwed the pooch to immunize those criminals. Noooooo!”

    • emptywheel says:

      I imagine it would not be the first futile pooch-screwing that Kit Bond will have experienced.

      Speaking of puckered assholes and all.

      (Jeebus, this thread has disintegrated to trash talk, on a Friday night!!)

      • MadDog says:

        (Jeebus, this thread has disintegrated to trash talk, on a Friday night!!)

        MadDog’s own asshole has been puckering since hearing my Vikings have been screwing their own pooch with the signing of Sage Rosenfels as our next Epic Fail Quarterback.

        Yip, yip…arrghhooooo!

        • bobschacht says:

          Isn’t it about time for a Men’s BB trasher? Is LA good enough to start trash talk about the Celtics and Momma Jane’s beloved Lakers? Is Kobe getting excited yet?

          And at the College level, Michigan has gotten good enough again that I no longer avert my eyes when I see a Michigan game listed on my TV Guide channel. I have to admit, however, that I follow Women’s BB more closely than men’s. bmaz, do you follow the ASU women’s BB team? They’re purty good, y’know. I’m looking forward to the NCAA tournament.

          Oops. Back to FISA headaches. I’m still hoping that Obama will finally get it right, though I’m not gonna bet the rent.

          Bob in HI

        • prostratedragon says:

          I don’t know, what with all the puckered assholes and screwed pooches around here, plus my own deep dark thoughts lately about the financial thing increasingly taking the form of a wish that all those banks holding in toxic assets would engage in sphincter relaxation exercise, it might do some good.

          Clearly some folks rattling around in the collective conscious here aren’t doing their part. Guess we have to pick up the slack.

        • freepatriot says:

          there should be some type of sporting event that is exclusive to March

          maybe a single elimination tournament, or something

          involving college kids maybe

          I got it

          CO ED BADMINTON !!!

          we could fill out brackets …

          /repuglitards’ political radar

  8. Mary says:

    OT – Murdoch’s Times is really going all out lately. After reviving earlier this week the old story about 60 or so GITMO detainees “returning to the battlefield” and including Cheney quotes, they put this up today:


    An op piece on how torture actually does work. And how bad it is that the UK taxpayers have been paying for Binyam Mohamed’s legal services (umm, anyone want to let JAG and Reprieve in on that info?)

    Over at the Guardian, Jack Straw is surfacing to write that he really isn’t making Britain into a police state, apparently feeling that there is enough evidence to the contrary that he has to actually attempt a refutation.

  9. ezdidit says:

    I am convinced that Obama wants to lose. His loss would solidify the basis of a judgment against BushCo.

    It is not sufficiently impartial for Obama’s DoJ to simply move ahead on a prosecution of BushCo. That would have been an unseemly politicization of the DoJ. But losing these old cases in open court, providing the basis for suits to move ahead — that’s Obama’s style! I love it.

    • Nell says:

      There is no evidence whatsoever that the Obama DoJ “wants to lose” — quite the opposite. As GG points out, they’re making one filing after another to prevent an adverse ruling. And in the al-Marri case, rather than leaving the Supreme Court habeas case in place while al-Marri’s actual prosecution moves, properly, to a civilian criminal court, the Obama DoJ is asking the SC to dismiss.

  10. bmaz says:

    You’ve got to be kidding me. The thought that this is some planned “style” by Obama is just the most ludicrous bunk I have ever heard.

    • Kassandra says:

      Really……not really. so far, he’s sure got the Repubs lookin’ bad without “playing partisan politics” overtly.

      They all look like lunatics right now except to their die hard friends.

      I’m still holding out that “little wild bouquet” that Obama is the canniest politician we’ve maybe ever seen. He’d better be, ’cause he’s walking some dangerous lines here. The more blame he can shift and shrug off, the better for him.
      As long as he can get it to work….

  11. Leen says:

    This incident with Brendax at the bus stop with Rumsfeld (link below) made Hardball tonight. did not mention Brendanx by name (real name just said 30 year old man verbally assaulted Rumsfeld at a bus stop

    Tell you someone on the Hardball team peeps here at FDL

  12. JohnLopresti says:

    Charlie Savage in NYT December112008, para.1, ” ‘When Eric H. Holder Jr., addressed a convention of the American Constitution Society for Law and Policy in June, he urged young lawyers to get involved in the liberal legal network, saying America would soon be “run by progressives’.” cite@p.7/126, somehow, SJC managed to make this file 24MB, a selection of news clips for a hearing on nominee background.

  13. pseudonymousinnc says:

    An op piece on how torture actually does work.

    Well, ‘24′ started back up on Sky One, and Camilla Cavendish is trolling.

    Heh, I have been thinking about a Trasher, but am trying to hold off until F1 starts in three weeks.

    Back on the BBC, where it should be, with “The Chain” as its theme.

  14. freepatriot says:

    Jim Bunning is throwing his HIGH AND TIGHT fastballs, right at the repuglitards’ heads

    Bunning reportedly said at a campaign fundraiser in Washington that the rumors being spread about his possible retirement, or of a potential Republican primary challenger, have been hindering his fundraising efforts. “I would get the last laugh,” Bunning said, according to three sources speaking to the paper. “Don’t forget Kentucky has a Democrat governor.

    fuck me ???, No, FUCK YOU !!!

    the gop is headed to oblivion, at ludicrous speed

    smoke em if ya got em …

  15. Jkat says:

    obushma: combining term indicating a joint legal framework initiated by the bush admin and supported under obama …

    and that ya ew and bmaz and mary and all for the elucidation of this topic ..

    • freepatriot says:

      ain’t we supposed to be agin the right to bare arms ???

      my toe-jammed, triple fungus birkinstocks are O-Okay, but cover up those arms, especially if yer some pasty white lawyer type

      Jebus, dint y’all hear that “sunscreen” guy

      he said to trust him

      about the sunscreen

      can you believe that guy thought living in Northern California makes you soft ??? I’ve lived here all my life. would anybody want to describe me as “soft” ??? fuzzy, maybe, soft, no …

      • freepatriot says:

        well, we can go out and march in March, and we don’t have to freeze our asses off

        or you can follow my philosophy, and exercise the right to Not March in March

        and nobody walks in LA anyway

        we ain’t very pedestrian here in Cali

        mostly, we’re what you might call Militantly apathetic. we don’t care, now get the fuck off my lawn …

        and btw, answering the door in the nude works better than the “militant” thing, if you’re trying to get rid of wingnutz at your door

        • prostratedragon says:

          Real hotbed of social rest, eh?

          I bet that nude door-answering thing works well with J’s Witnesses, too.

          (Maybe not TANowandthenKA Prince.)

  16. WilliamOckham says:

    I have a prediction: If this case proceeds, it’ll come out that the government was tapping these lawyers’ domestic calls, too.

    Here’s why I think this is true. First, once you’ve removed the restraints of the law, the temptation to take the next step is too great. Second, the technology is exactly the same. Third, even though they only mention stuff from the overseas calls, that might just be because that’s the only the government has admitted too.

    Anybody want to bet against me? 6 pack of your favorite beverage against mine (Fuller’s ESB).

    • prostratedragon says:

      And 4th, don’t we all know that it’s the domestic calls (both these and in principle) they really wanted to get anyway?

      Sorry, maybe someone else will take your offer.

    • emptywheel says:

      I’ll bet three Fullers against three Sacred Cows.

      I think they matched the log as closely as they could to “wow” Walker. So I think they’ve recreated the log.

      Otherwise I think your logic is fine.

      • perris says:

        I am going to bet they have business logs as well, information that has nothing to do with anything but getting an edge in commerce

        • readerOfTeaLeaves says:

          FWIW, I’m convinced this is surely the case.
          Think about it: if you have CDO’s, you can ‘hedge bets’ that Company A or Company B will default.

          How to make sure it defaults so that you can collect on your ‘hedges’ (i.e., ‘bets’)?

          Listen in on the ‘insider’ info.
          Asswipes, every damn one of them.

          OR: ‘Evidently my TinFoilHat is wider and has way more bows and feathers than yours.’

    • lesserdevil says:

      How about I double that bet. 12 Guinness says the immensity of the wiretapping program included a good percentage of the American people and very often had nothing to do with terrorism. Also, the feds and the propaganda outlets will do everything possible to obfuscate that fact.

      I’d throw in a bottle of Jameson’s if it was ever merely about thwarting terrorism. I think it was always about gathering information on anybody and any activity that could threaten the established order here. A great friend of mine was a former Air Force technology specialist. The data collection capabilities of the nation’s intelligence communities completely blew my mind when I learned about it, and I already thought it was fairly massive.

      And I’ll just throw in 12 Brown Ales, because without them you can’t make a car bomb. Just remember to eat something salty and drink water after the besotting.

  17. FrankProbst says:

    My suspicion is that Judge Walker’s take on all of this is pretty similar to mine–I don’t really care all that much about whether the telecoms get immunity. I DO care about rampant lawbreaking by my own government, and I’d really like to see it exposed. My strategy would be to find a way to blow the lid off of this whole thing, which appears to be exactly what he’s doing. If he succeeds, I think his finishing touch will be to say that the Congress wanted the telecoms to have immunity, so he has no choice but to give it to them. Which frees the telecoms to go straight to the media, and simultaneously exposes everyone who voted for immunity to be participants in an epic whitewash.

  18. scribe says:

    For some reason “Reply” isn’t working for me today. My comment at 52 was in reply to Leen upthread discussing BrendanX using Rummy to explain the difference betweed Good and Evil to his son at the bus stop. And that would be “Better BrendanX than me”, to be limpidly clear.

  19. ThingsComeUndone says:

    Obama’s DOJ is still likely not to indict on this issue. But it will mean we might have evidence that Bush broke the law before the statute of limitations runs out for his crime.

    The President trying to steal our rights away and using all the levers of government to do it is not extenuating circumstances?
    All Bush or any future President has to do is just run out the clock?
    Are The Supremes going to trust Obama with that much power?
    Personally I think the authoritarian personalty projecting its fears and desires on others would not let this stand.

  20. Mary says:

    45 – hasn’t the discussion been that they kind of “6 degrees of Bin Laden”-ed their interceptions? IOW, that if they picked up the lawyers, they would have pinged the lawyers calls out, and very likely the calls of the OTHER Americans on American soil that the lawyers called – I guess until they got back to bar foundation fundraising calls going to DOJ lawyers.

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