Correcting the Confused al-Haramain Reporting

I’ve gotten so many links to really confused reporting on what happened in the al-Haramain case on Friday (see here, here, and here, for starters), that I’m going to take the trouble of trying to correct it.

But before I do that, to those perpetuating these confused reports, let me say this:

You guys have all totally missed the plot!!

You have gotten completely distracted by utterly predictable squabbling about how this will move forward.

You have missed the fact that DOJ just admitted that Bush lied provided "inaccurate" information to the Courts, and that DOJ has just submitted new material that presumably corrects that lie "inaccurate" information.

Shew. Sorry about that.

Now the confusion in question stems from the way Judge Walker wrote his January 5 order, which basically said two things. It:

  1. Ruled that he–Judge Walker–would read the secret material in question and decide whether al-Haramain was an aggrieved party (and therefore whether Bush broke the law).
  2. Ruled that the government should take the first steps (doing a classification review and getting al-Haramain’s lawyers a security clearance) of addressing how to move forward with this case given the classified nature of the information involved.

I wish Walker hadn’t written his ruling like that, because it caused the opportunity for this confusion, but since I’m not a federal judge, I can’t do much about that.

But note: Walker did not rule that the government had to give al-Haramain any classified information.

Unfortunately, the two sides focused their briefing on the confusing, second, aspect of Walker’s ruling. Al-Haramain, for some very good tactical reasons, said, 

Judge Walker can order you to give us this classified information.

Judge Walker can decide we have the "need to know" and as a result grant us security clearances.

And DOJ, for some very good tactical but ethically suspect reasons, then pretended that Judge Walker had said what, in fact, only al-Haramain had said.

Judge Walker did order us to give al-Haramain this classified information.

Judge Walker did order that he can decide that al-Haramain has the "need to know."

Now, as it turns out, DOJ had a secret. 

Back on (probably) May 12, 2006, when the government told Garr King (the judge who had this before Walker) what they had been doing with al-Haramain, they provided "inaccurate" information. I suspect they only told King about part of what they were doing to al-Haramain, probably leaving out details about data mining and earlier wiretapping and laundering poison fruit to get warrants. And during this whole back-and-forth in the last two months, DOJ knew that. I presume that Obama’s appointees discovered that little detail, probably before February 11. So one of the reasons (I suspect) DOJ conflated what al-Haramain was saying ("Judge Walker can ordered the government to give al-Haramain classified information") with what Judge Walker had said and therefore utterly misrepresented what Walker had said ("Judge Walker did order the government to give al-Haramain this classified information") is because they wanted to increase the urgency of their appeal so that they might win an immediate stay. If they won a stay, after all, it might put off indefinitely that time when they would have to confess to their earlier inaccuracy.

It’s the kind of tactic you probably tried a lot when you were nine, when you tried to put off the time you had to confess you had been bad to your mother.

I’m not saying that’s defensible in the least. But I do think that explains the hysteria of their arguments in January and February.

Luckily, the 9th Circuit didn’t fall for DOJ’s tricks. They rejected the appeal.

But all that means is that they agree Judge Walker should read that classified information and decide whethter al-Haramain is an aggrieved party. Since Walker never ordered that the government must give al-Haramain classified information or that the he, Vaughn Walker, had decided that al-Haramain had a "need to know" this information and therefore could get a security clearance, the Appeals Court’s rejection of the government’s appeal didn’t say the government had to turn over this information.

And there’s very good proof that the government knows that–and has accepted the Appeals Court’s rejection of their appeal (and is not defying the Appeals Court). On the night the Appeals Court rejected their appeal, the government finally corrected the inaccurate information that Bush had provided the Courts (probably) three years ago. In other words, they gave Walker more to review, so that he could conduct that review with complete information. They did not defy his order, backed by the Appeals Court, that he would conduct a review.

For those of you wondering why Walker hasn’t yet ruled on this, btw, remember that he was at an undisclosed location over the weekend, and then came back to find that he had unexpected new homework to do–to read the four new declarations, presumably about the program. I also expect those declarations provide some totally new problems for him to consider, such as whether data mining of Americans constitutes electronic surveillance. 

[Hey Vaughn Walker’s clerks!! If you happen to be researching whether Congress has ever weighed in on whether the government can do this kind of data mining on its citizens, please read this post.  It shows that at precisely the time Congress was successfully defunding such data mining (it passed into law, though Bush did include an onerous signing statement, so maybe we’ll finally get to litigate signing statements too!!), Jello Jay Rockefeller told Cheney that he considered this program’s data mining aspects to be the same data mining Congress was defunding. So Congress made it very clear–in the Appropriations for DOD for 2004, the year in question (hahahahaha!!)–that they didn’t want the Administration doing any of this data mining.]

Now, don’t get me wrong. I consider DOJ’s brief from Friday to be a horrible example of Cheneyesque reasonsing. But also understand what’s going on here. They’re not defying the Appeals Court. They’re not defying any order that Walker has already made. They are saying that if he orders them to turn over the information on the program, they will appeal. 

But also consider the context, which explains their increasing hysteria about the classified information. We’re no longer talking about Walker ordering the government to turn over a document to al-Haramain they’ve already seen. We’re talking about those four new declarations, which presumably describe the warrantless wiretapping program in much more detail. Now, I don’t believe the government should conduct massive data mining and wiretapping of its citizens in total secret, but a majority of the members of the last Congress (including our current President) do.  Furthermore, DOJ may or may not believe that al-Haramain has ties to al Qaeda. I do think some of the questions DOJ has threatened to appeal (whether a judge can order that litigants get the nation’s biggest secrets, whether a judge has the authority to grant security clearances if the government refuses) are worth some discussion–though I wish it were a measured, honest discussion. 

What’s going on is that the government has finally turned over real details (though who knows whether they’re complete, given the "inaccurate" information they did not correct for three years?) on the warrantless wiretapping program. At precisely the moment that it is at most risk of being made public.

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151 replies
  1. klynn says:

    Good morning!

    Smart to post this…so you do not get hounded by, “When is Walker…?” questions! (Yeah, like I’m guilty of such questioning!

    And a shout out to bmaz “on watch”!

    I imagine one of the issues Walker is facing, as he goes through his new homework, is whether anything in the material, points to other missing evidence or data that would be vital and fall under the courts ruling. So he may need to do a “this is the whole story?” kind of question back to DOJ. Obviously, due to the failure to correct information for three years.

  2. drational says:

    Good morning EW.
    After your inaccuracy post and the comment thread discussion with al-Haramain lawyers Nelson and Belew, I’d like to take a crack at a possible scenario for the wrangling. It is based on speculation that there exists a FISA warrant and Treasury was compartmentalized out of knowledge of warrantless wiretapping:

    The mysteries to me are:
    1. Why would they continue wiretapping on 3/11 and 3/25/04 when “the program” was “shut down” by Comey’s palace revolt?

    2. Why did the al-Haramain lawyers get sent the log?

    3. Why the fight to keep quiet, even from Judges King and Walker?

    The helpful evidence:
    1. A FISA warrant would not have necessarily been disclosed to plaintiff at this point (comment @179 at your innacuracy post).

    2. The al-Haramain lawyers were initially convinced the log was sent purposefully, based on other data Mr. Belew cannot discuss (comment @ 139 at you inaccuracy post; I suspect that the other data is listing the log on a facepage or appendix as is common for legal attachments, suggesting that more than one person knew of its inclusion in the mailing rather than being slipped in by one whistleblower).

    We first received it as part of a large batch of material. At the time we were unaware of the warrantless wiretap program so we assumed that the document was the product of lawful activity. For reasons I can’t go into, we also assumed that the transmission of the document was intentional.

    3. The existence of parallel track FISA warrant processes, designed to keep illegal wiretapping out of the FISA court, that did not work as planned.

    In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.

    Putting things together, I speculate:

    1. “The Program” was applied to al-Haramain before February, 2004. Illegal warrantless wiretapping was used to gather evidence that led to the February raid.

    2. Because “The Program” was used, the FISA application should have been Firewalled (tagged) to the Chief FISA judges, so that the illegally obtained data not serve as the basis for the FISA warrant for the raid and subsequent WARRANTED wiretapping.

    3. But the FISA application did not get appropriately tagged, and as such later review would reveal that it was a fatally flawed warrant and perhaps was even “withdrawn” or otherwise invalidated by the FISA court:

    In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said.

    4. Before the flaw was discovered, warrant-based wiretapping continued.
    This is why they kept wiretapping on March 11 and 25, 2004 while “The Program” was shut down. They had a FISA warrant, so it was no longer part of the program.

    This may also be why treasury sent the log. Firstly, the log contained only post-raid wiretaps (post warrant), but we surmise from the inaccuracy post and thread that they were likely tapped before the raid as part of The Program. Treasury had been compartmentalized out of the knowledge that al-Haramain had previously been illegally wiretapped, so Treasury thought the log documented warranted and perfectly legal wiretapping.

    5. Now why the Government delayed getting the log back:
    They required the wiretapping to reveal that the log had been sent. The FBI found out by eavesdropping and reported back to whomever was controlling the case.

    6. Significance:
    The warrant that allowed the raid/wiretapping is bogus and was either revoked in the time between the wiretaps and lawsuit, or cannot be relied upon by the government because it was produced using illegal data.

    As such, discovery of the warrant problems in this case would severely damage the FISA COURT ITSELF. If the Firewall failed in this case and illegal information was used to warrant the wiretapping outlined in the al-Haramain log, then how many of the thousands of FISA warrants written during the Bush Administration could have similar problems.

    That the FISA court could have been manipulated so grossly really undermines Law and Order.

    I understand why there has been and is so much effort to squash this case:
    Criminal Prosecutions of Terror Suspects could be devastated by exposing the games that were played in obtaining FISA warrants.

    • NMvoiceofreason says:

      Judge Resigns From FISA Court in Bush Protest says

      “….Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.”

      Thanks for your scenario, drational. I don’t know if this fits into your timeline, but the facts do. And when there is no other rational explanation for the facts, the game is afoot.

    • portorcliff says:

      Dayam….
      I spent a ton of time reading the “Inaccuracy Post” and comment thread. IANAL and I admit to reading aloud to myself to get the sequence and logic straight. There was a load of mumbling and mumuring coming from my desk.

      Playing footsie with the warant process to circumvent “fruit of the poison tree” exposes the previous administration for what it is; lawless bullies.

      Thisis what you get when ‘warrantless’ is used as the adjective to the “actions of Justice”.

      The FISA Court is complicit and they should be exposed.

    • emptywheel says:

      Um, drational

      There is zero, nada, no evidence “the program” was shut down after March 11. In fact we were told it wasn’t by SSCI.

      So none of this is necessary. The March wiretaps may have been FISA–but almost certainly weren’t, or were wouldn’t be here today. And since we know (from SSCI and other sources) that the program wasn’t shut down, and since the document was handed over basically amongst the trash, there’s no reason to believe it reflected valid FISA review.

      • drational says:

        OK EW. Wild speculation on my part. I’ll stick with it though.
        I am bothered by why they would log March-June wiretaps separate from pre-march, which you made a good case they were certainly doing.

        I am also bothered by Treasury having wiretap logs if they were part of the highly compartmentalized Program.

        Plus there is the background issue of the FISA judge problems.
        Do you know what the Judges would have done with a warrant they found out later was obtained based on illegal information? Because there were certainly a few of these…..

        • emptywheel says:

          I think those are all good points. But don’t explain why this case is still being litigated 3 years after it started, when it threatens to expose everything else.

          As to why the log was there, you’re assuming two things, that Treasury knew the distinction (it was handed over by NSA) and that the document was handed over intentionally as part of discovery (you’re not arguing that it was a mistake, but one thing I’d like to sustain is the possibility that it was handed over intentionally for some entirely different reason, as a whistleblower or as a mole). I’m frankly agnostic on it, but given the shit they had in that packet (which sounds like it came from one of those self-appointed terrorist posses), I think inclusion as some part of discovery is very unlikely. There was no discovery. THey were being stonewalled. Go back and look at those descriptions.

          The FISA judge problems are real, and this entire situation no doubt plays a part in it. All I’m saying is that SSCI has said the program continued for no more than 45 days with Gonzales’ blessing, we know from Gellman that that appears to be the March 11 period on, so we have reason to believe that the program was still oeprating on March 11. It may be that they didn’t process NEW non-warrants in that period (in which case, if Leonnig’s story is correct, the term “shut down” may mean “did not get new wiretaps”). But here is what Comey said about it:

          SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

          COMEY: Yes.

          SPECTER: So it went forward illegally.

          COMEY: Well, that’s a complicated question. It went forward without certification from the Department of Justice as to its legality.

          [snip]

          FEINSTEIN: OK. All right.

          And you said that the program was later changed so that it could be signed. But it went ahead at that time without your certification on it.

          COMEY: Yes.

          FEINSTEIN: And what was the elapsed period of time from that meeting, the denial of DOJ to certify the program and the time when it was essentially certified?

          COMEY: It was reauthorized on Thursday, March the 11th, without the department’s — without my signature, without the department’s approval.

          And it was the next day — so less than 24 hours later — that we received the direction from the president to make it right.

          And then we set about — I don’t remember exactly how long it was — over the next few weeks making changes so that it accorded with our judgment about what could be certified as to legality.

          And so it was really only that period from Thursday, when it was reauthorized, until I got the direction from the president the next day that it operated outside the Department of Justice’s approval.

          FEINSTEIN: For approximately two weeks?

          COMEY: I don’t remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

          • drational says:

            The biggest thing that bothers me is why on earth they would elect to continue warrantless wiretapping after the raid. They presumably had a warrant for the raid, no? So getting a warrant for search and seizure was easy. Plus we know that any information gathered by warrantless program COULD NOT BE USED in a court of law. So why bother with Program after Feb 18 and risk not being able to use evidence?

            As to the Treasury thing. Belew said they thought they were being threatened. I can’t imagine that given the degree of compartmentalization of Program information that a log like that would be floating around to be seen by people at Treasury: for any use at all. NSA conducts warranted wiretapping as well, so to me this seems a casual document. I can’t imagine a “Program” log not having “Classified” stamped all over it, and we can pretty much conclude it was not marked as such since they initially overlooked it and had other evidence it was sent purposefully.

            I think it is still being litigated because the Government cannot or will not produce a warrant for the wiretapping. Either it was the Program, which is the simplest explanation but one that doesn’t quite seem right to me, or there is some complicating explanation.
            As a scientist, I’d pick the simplest explanation. But being bothered by certain details, I am looking for alternative explanations as well.

            • emptywheel says:

              No. It was marked SCI and was–according to the FBI–kept in an SCIF up until the time it was handed over.

              You point about why keep doing the illegal wiretapping is a good one. But just as easy an explanation (which would also account for why we’re still litigating this 3 year later) is that they couldn’t clean go back to the FISC for a real warrant so just kept working in the illegal program.

              Belew says he thinks they used an IRS statement to get the real, legal, warrant for the search. It’s possible that to a District Court judge–who didn’t know about the program–that statement looked to be in order. But to a FISC judge, who knew abotu the program, there would be obvious questions about how the IRS guy came to know what he knew.

              • LabDancer says:

                This seems to assume the log would be the ONLY document handed over to the AH lawyers with SCI markings on it, so different & easily capable of being differentiated from the other documents haneded over to them.

                I do note your earlier point that the PROCESS in which the documents were being handed over was a different process than the “discovery” exchange of documents typical in civil actions. I was guilty of using that term “discovery” in the earlier thread, & both wrong & sloppy in doing so; you of course are, at least as to form & forum.

                But I’m not at all sure there is much of an EFFECTIVE difference, at least insofar as giving rise to a context for an inadvertent exchange of a particular document, such as in this case the log. The reason I make that observation is that I’m am not at all convinced that the OTHER documents in the hand-over would NOT be so marked. After all, the OTHER documents would have been gathered up in the context of an SCI investigation, a state of being that would have to be made clear in order to comply with the sort of ‘compartmentalization’ that government uses to distinguish documents & information subject to sensitive handling. I fail to see why otherwise even perfectly innocuous documents & information, such as a photocopy of a page from a local telephone book, would NOT be marked in a similar fashion, if for nothing more than to warn off those who might stumble on it or a file folder containing it from asking questions or wondering further as to its meaning.

                To clarify in graphic terms, I would expect the ENTIRE product of an investigation connected with an SCI-based investigation to bear the marks of that connection.

                This possibility was part of what I was driving at yesterday when I addressed one response directly to Mr Belew — tho of course excusing him in advance from declining to respond should he be concerned that to do so might cause a problem.

                To reduce the noise from confusion, I summarize thus: absent some assurance from one of those who has actually seen the handed-over documents, I am loathe to conclude that the log, in & of itself an eye-boringly innocuous-appearing document, being marked “SCI” would be sufficient by itself to distinguish it from a bunch of other eye-boringly innocuous- appearing documents.

                • emptywheel says:

                  Fair enough. I still think some deputized self-appointed terror posse did the research that al-Haramain got. But only because it is so stinky that I’d like to pretend some freelance wingnut collected it and not a professional.

                  But there’s zero evidence of that.

                  • LabDancer says:

                    Well, the Bush-Cheney regime encouraged such free-lancing, so I’m not going to poke that balloon. But even then, by the time the government gets to the stages of notifying the organization of formal seizure & its intention to pursue designation as a terr’ist org, the file contents have gone from any free-lancers thru a number of actual government agency offices — Treasury being among the majors — & it would be at some point in or around that process of bouncing around among the government agency offices that the information would get marked up as classified. Secret Steve Aftergood, as you know at least as well as I do, has a large number of posts up with analyses of the processes, including, & critically so, as some here have noted from time to time, that once someone at some agency marks something up as “classified” or “secret” or “top secret” or whatever, just that fact invokes a highly difficult regime of it’s designation as such being undone — & IMO very far indeed from something anyone would tend to find either the motivation or time to perform in the ‘heat of the moment’.

              • R.H. Green says:

                EW and drational,
                The question of why continue the wiretapping after the raid seems to presume that the purpose of the tapping was for law enforcement purposes. Another take is that the program was to monitor suspected targets in the GWOT, of which the charity was one. Gathering legal evidence against them was possibly of secondary importance.

                • drational says:

                  “Another take is that the program was to monitor suspected targets in the GWOT, of which the charity was one. Gathering legal evidence against them was possibly of secondary importance.”

                  You are right. My assumption is that they would have had a warrant for the Feb 18 raid, and as such be building a case for prosecution, but I have no evidence.

            • emptywheel says:

              Right, you’re bothered by certain details–but you’re ignoring details (like the reported SCI markings on teh document–per HAckett’s unclassified statement) that appear in teh filings on this case.

              • drational says:

                Not ignoring- just did not remember ever reading that. I for sure do not have as good a grasp on the details as you, so I certainly would defer to your points. I am not trying to antagonize you or say this speculation is a “better” explanation in any way. I think they could have gone back to the FISC. They could have used the Chief Judge tagging route, which they were using for other cases (if not this one). at any rate, I don’t want to detract any more form your post, so I am happy to discuss by email.

                • emptywheel says:

                  Right.

                  All I’m saying is if you want to make a fact-based argument, you’d be better served by looking at the filings I linked to and/or Jim Comey’s testimony, because what you’re using instead are assumptions that in several cases are directly contrary to the known record.

                  I thikn it’s important to keep the tension with the FISC judges in mind. BUt until we have a real understanding of the motive of the person who either accidentally or intentionally made that document available (and the official record–at least at this point–says it was accidentally handed over, and that probably remains the official stance of DOJ since FBI did not issue any new declarations on Friday), then we have absolutely zero reason to believe the tension after 2/18/04 was any different for this particular case than the tension beforehand and we have a number of pieces of evidence that suggest (though don’t prove) that the report was not meant to be any sort of discovery.

                  You may well be right, but there’s not any evidence that says there’s a distinction in this case between the pre-raid FISC relationship and the post-raid relationship.

            • chetnolian says:

              Perhaps the reason for continuing the illegal wiretaps was not for the courts but for the actual information. That would surely make sense at least to those doing it. We tend to get hung up on the legalities here, but remember we are dealing with paranoid spooks (is there a non-paranoid spook?).

            • NMvoiceofreason says:

              There is another explanation possible. Suppose the “log” in question was derived from “program” data, but was in fact a “scrubbed” log, a “digest”, produced for the financial side to generate actionable intelligence of financial links. It would have enough info to reveal sources and methods if disclosed (such as names and dates). It could provide such data without being stamped “classified” everywhere. But it should still have been marked TS-ORCON (Top Secret, Originator Controlled – do not copy or redistribute) which the Treasury people could had found not to apply to a valid court order. It could have been removed from a TS-ORCON folder, but every page should have been marked top and bottom. But I have seen pages not numbered and not marked before…

              • drational says:

                Sorry NM, in all my sleepless excitement I gave bad info @25 and 3. It was stamped SCI. Further the program was not “shut down” on March 11 and 25, as I incorrectly asserted. See EW reigning me in @28 and 36.

                My mistakes don’t exclude the possibility that there may have been a warrant in the picture (see Mary @ 49), but the simplest explanation holds the floor, and Bmaz @79 reminds us not to get too carried away overthinking.

                My apologizies to EW for distracting mistakes….

                • bmaz says:

                  Drat – heh, that is how we discuss and expand upon things. And that exchange between you and EW probably helped a lot of people understand the lay of the land better. This stuff can be hard as a discussion takes it. The core principles are, or at least ought to be, quite simple; the details behind all of this are decidedly not so. And some of your conclusions, for instance on the underlying warrant and affidavit behind it, are quite likely correct as I noted above.

                  • klynn says:

                    EW & bmaz,

                    I have been trying to find what I thought was a Scott Horton piece from earlier in the last year. It was about the “perfect storm” brewing at the DOJ and that something big would hit the fan either this fall or winter.

                    I have been searching at Harper’s and have not found it. EW, I thought you wrote a piece about this Horton article too?

                    I would like to find it because of a comment in the article that struck me, at the time, as important. In retrospect, I think it relates to al-Haramain.

      • acquarius74 says:

        Are we (and Judge Walker) like good children, to assume that it’s all fixed now?

        …and since the baloney document was handed over basically amongst the trash…

        All fixed now, Judge..

        What??

        Now, now, Judge, you just focus on this new improved baloney; you musn’t be distracted by the fragrance of that big ham locked away in the pantry… that’s only for the Emperor and his Court.

  3. Lindy says:

    Geeze, you people. I haven’t even had my second cup of coffee yet and you’re making me think? I bet you haven’t even slept. But I can’t stop reading.

    • Mauimom says:

      Geeze, you people. I haven’t even had my second cup of coffee yet and you’re making me think? I bet you haven’t even slept. But I can’t stop reading.

      You should see what it’s like from this time zone. I get up, read the NYT on-line, see Bobo Brooks column and want to go slam, er, comment, and they’ve already closed the damn thing.

      • earlofhuntingdon says:

        You can always read A Manifesto for Fools on Oxdown. The comments section for Brooks’ column today closed very early, with well over 500 mostly negative comments. The Times helpfully divided them by oldest, newest and editors choices. If that keeps up, Bobo might find himself working for Fred Hiatt. That would be a relief.

  4. Minnesotachuck says:

    For those of us who’ve been around here long enough to remember the late MarieRoget, KiwiJackson left the following comment on the last thread:

    Thanks from Kiwi for all the good work here on this.

    Off the topic, but to those who have been so kind since her passing, Marie’s legacy donation to Covenant House in Hollywood went through today. 81000 for the kids there who are in need. In these times thats a good sum to leave. Love and promises of better times and good wishes to all. Dennis.

    I just wanted to make sure this didn’t get overlooked, being at the end of an EPUed thread and all.

    Now back to our regularly scheduled awesome analysis by EW & Co.

  5. bamage says:

    Now I’m confused… Can somebody please explain to me what was “confused” about Greenwald’s take? Thanks!

    • emptywheel says:

      Based on some of the other reporting out there, Glenn was working with the argument that Obama was “defying” a court (it’s never really clear which court this is supposed to be).

      DOJ was making a crappy ass argument about the President’s control over classified information. But the fact that they gave Walker MORE stuff to read is pretty clear indication they’re not defying any court on the order in question, which is that WAlker gets to read the classified docs about the program.

      • bamage says:

        Gotcha, thanks. I do see a line in the [GG] post where he alludes to Walker ordering the DOJ to allow the al-haramain lawyers to review the doc. I hadn’t caught that previously. But I do believe he makes it clear that the DOJ hasn’t defied Walker’s Order.

        Anyway, you, MARCY, do simply OUT FREAKIN’ STANDING work/analysis on this! Thank you very much.

  6. phred says:

    EW, thanks for linking to your old post. I would highly recommend that everyone (not just the law clerks) click through to brush up on the timeline:

    If you happen to be researching whether Congress has ever weighed in on whether the government can do this kind of data mining on its citizens, please read this post. It shows that at precisely the time Congress was successfully defunding such data mining (it passed into law, though Bush did include an onerous signing statement

    I wanted to highlight the first paragraph of the signing statement that essentially tells Congress to go Cheney themselves:

    Sections 8007 and 8103 of the Act prohibit the use of funds to initiate a special access program or to initiate a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007 and 8103 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe sections 8007 and 8103 in a manner consistent with the constitutional authority of the President.

    This paragraph strikes me as particularly ominous given the suspension of the 4th amendment (Oct. 2001 to Oct. 2008 per the memo released yesterday) when this statement was issued on September 30th 2003. Here the President says he is not obligated to submit to Congressional oversight if he doesn’t want to, knowing that courts tend not to permit judicial review of classified information. Poof poof poof, checks and balances are swept away.

    However, my favorite bit is at the end, for its breathtaking hubris and inherent dishonesty:

    My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation.

    This is striking for two reasons. First, evidently Bush only disliked secret law when it pertained to Defense funding. Second, classified material tucked in a handy annex apparently makes things not secret. I feel much more enlightened already ; )

    • emptywheel says:

      That, and one more reason. HPSCI tried to put through a ban on torture in the last year’s appropriation (no idea what happened to it) using a classified annex.

      And Bush complained about that bc they were using a classified annex.

      • phred says:

        You know sometimes I think they were going out of their way just for the fun of insulting our intelligence. It would be funny, if the consequences weren’t so catastrophic.

  7. klynn says:

    OT

    I am also bothered by Treasury having wiretap logs if they were part of the highly compartmentalized Program.

    In light of this comment, EW, is it just me thinking we need to take a closer look as to why Obama retained Bush Appointee, Stuart Levey, as director of Treasury’s Office of Terrorism and Financial Intelligence? Seems odd as I research. This is an important position but no one pays attention to who Stuart Levey is or if he is best for such an important position for national security…and what role he and his office has been responsible in many of the cases we discuss here.

    • klynn says:

      corrections:

      Stuart levey, undersecretary of Treasury for Terrorism and Financial Intelligence…

      …role he and his office have been responsible…

      • klynn says:

        Yep, I read that earlier today. Thanks.

        I’ll link to some other articles and posts a bit later which led me to my question.

      • acquarius74 says:

        Thank you for all your comments here, belewlaw, and especially for the link you give here at #33.

        Does anyone have a clue as to the current location of all those frozen assets of these charitable organizations? …just locked away back in the day and no action taken since…

        • belewlaw says:

          Does anyone have a clue as to the current location of all those frozen assets of these charitable organizations? …just locked away back in the day and no action taken since…

          The Treasury reasoning pays tribute to Lewis Carroll:

          They are not taking your assets, they are merely freezing them temporarily. You can get them back when the War against Terror is over;

          Since they are not “taking” your property you lack due process and other rights that would be your due if there were a taking, including right to counsel;

          By designating you a “Specially Designated Global Terrorist”, for example, they are not accusing you of committing any criminal act, just being a terrorist. Therefore, you do not have the right of presumption of innocence, the ability to confront the evidence or a reasonable standard of proof. However, any “US person” that provides you with “material support” (buying you lunch, for example) is guilty of a felony under the Patriot Act;

          You have the right to counsel only if OFAC (the body that made the designation in the first place) gives you a license;

          You right to appeal is only to OFAC & you have no right to a hearing.

          As to what happens to the property: If is financial, it sits in a bank earning interest (Treasury is very proud of this) until the end of the War on Terror. If it is personal property, it is kept in a warehouse somewhere, ofter under poor conditions. Tom Nelson threatened, then sued, Treasury over their failure to release religious materials, including Qu’rans. They relented in this instance – the only one of which I am aware. Real property is sometimes sold at auction.

          • skdadl says:

            The Treasury reasoning pays tribute to Lewis Carroll:

            I enjoyed that. Sometimes a metaphor like that is just what a lay-dolt like me needs to grasp how something works, and that one did the trick.

          • acquarius74 says:

            I think I appreciate your response. (heh, heh)… just ’til the end of Never, huh? They got any of those big deep freezes down in the Caymens? Or Paraguay?

            I have never knowingly committed an unpatriotic act, but it’s possible that I’ve unknowinly said “good morning” to some turrerist in disguise…if the schizos in charge could pin that on me and learn of my inciteful, inflamatory writings on the internets, they could freeze my gallon jug of pennies, huh?

            If some acquaintance gains filthy lucre for ratting me out, and I should get caught up in one of those massive sweeps of suspects, then offered GITMO, Morocco, or the Solient Green cracker and movie…think I’ll op for the last. (I prefer the ether to that rabbit hole)

            Now, back to ground, I do thank you for sharing with us; and It amazes me that you can retain a sense of the ridiculous after your experiences with the “authorities”.

      • phred says:

        Thanks for the link. I gather that there is no review process where charitable organizations can appeal their status. Is there any process to determine the final distribution of frozen assets? Are they simply frozen in perpetuity? Does Treasury make any claim to seize assets for their own purposes? Also, presumably these assets include bank accounts and other investment vehicles — what happens to the interest?

        This situation appears to the be monetary equivalent of indefinite detention.

        • belewlaw says:

          I responded to some of these questions earlier, but you are right, is is very much like indefinite detention.

          The non-profit community would very much like to see financial assets transferred to an agreed upon 3rd party and used in a manner consistent with the original donors’ intent. This is complicated, of course, but it is an issue that unites a diverse group of organizations.

          • phred says:

            Yep, one gets the sense that the disrespect shown the 4th amendment is really pervasive in the federal government. It is disheartening that the Obama administration is keeping someone like Levey in place.

            • klynn says:

              That’s why I think more dialog on Levey needs to happen. There is a bigger story here and it relates to a great deal intel-wise…Especially, policy on Iran as time goes by.

              BTW, he is a James Baker-bot…

              • belewlaw says:

                That’s why I think more dialog on Levey needs to happen. There is a bigger story here and it relates to a great deal intel-wise…Especially, policy on Iran as time goes by.

                What Levey is hiding, IMO, is that he has been designating Muslim charities with no real evidence of wrongdoing for political purposes. The 9/11 Commission basically said this. In the case of AHIF – Oregon, the organization was designated shortly after the Beslan massacre in Chechyna with the allegation being that AHIF gave money to Chechyn terrorists. In reality the funds went to refugees under a program that was approved by the Russians.

                There are many similar examples. In all cases there is reliance on secret evidence that the organization may not see. I suspect that Levey has taken material from suspect sources (”experts” with agendas), classified them and then used the now classified material as the basis for designations that could not be effectively challenged. Press releases were issued crowing about another great victory in the war on terror.

                I would not be at all surprised to see evidence of criminal conduct in this case. But it is also part of a pattern of behavior that – if made public – would put Levey and many others in a very bad light. Ironically, Levey has a good reputation on Capitol Hill for his “strong record” on fighting terrorism. Once the secrecy shield is opened, that reputation will be ashes.

  8. WilliamOckham says:

    ew,

    I think you’re missing something from the government’s position. They haven’t made this explicit, but it is implicit in their argument and it’s the reason they are in a total panic. In the government’s view, if Walker looks at the document and decides whether or not al-Haramain is an aggrieved party, he will have effectively declassified information from the NSA’s special access program.

    That’s why they keep saying don’t do anything without giving us a stay so we can appeal.

    • emptywheel says:

      I thikn that’s in dispute (and I have raised that elsewhere, but the new information changes things). If he were to rule that, yes, al-Haramain is aggrieved but they only get to see his–Walker’s–rulings (which is hte only thing he has said they’d have to see), we’ll have a very different argument than if he says they get to see the classified material. The panic from Friday is, I think, pretty substantively connected with the new material.

      • bmaz says:

        Yeah, I don’t know about WO’s proposition either. In fact, I think the earlier 9th Circuit opinion (and by default the more recent one by denying review) give Walker plenty of cover to make the ruling. The government may want to continue this whining, and since Obama has gone whole Bush hog, I guess it is to be expected as it is really all they have got at this precise moment.

        DRational – I pretty much agree with Marcy here, however, your point #6 I believe is correct. In fact I was saying exactly this back on Sunday (earlier actually but that was off blog):

        Oh and it is a fair bet that the warrants the government did have for their initial raids on and seizures from al-Haramain were based on affidavits founded upon bootstrapped illegally obtained information. (see EW @6 above)

        Oh, and they misrepresented the above to the Federal courts involved in this series of cases, including, notably, Vaughn Walker, have let that stand all this time while they tried to hide the ball, and are just now getting around to fessing up to it. Somehow, I don’t think this is going to move Walker in their direction; in fact, quite the opposite.

        • emptywheel says:

          Right.

          And I agree with that too–that one of the likely issues too is that they should never have gotten to that raid.

          I just think we have no reason to believe that when they went to a District Court judge with no awareness of the program with the IRS declaration they also want back to FISC, which was hip to DOJ efforts to bootstrap, to get a proper FISA warrant. There was more risk in the latter than in the former.

  9. perris says:

    here’s a question;

    wouldn’t fisa allow the warrant?

    they seem to have denied just about nothing

  10. GulfCoastPirate says:

    For all of us non lawyers who follow along intermittently as time permits –

    Are we going to end up getting the bad guys or not?

  11. Nell says:

    Q for anyone who might know:

    Does the Treasury Department assign staff to each or some of the Joint Terrorism Task Forces?

    What brought this to mind is the question about how Treasury came to have the logs, and further ruminations about the JTTF that pursued Ali al-Marri. (The first round of criminal charges against al-Marri had to do with identity theft; it was alledged that he had in his possession a list of credit card and Social Security numbers.)

  12. readerOfTeaLeaves says:

    EW and all, I don’t want to clog up the thread with extraneous junk, but in response to drational’s observation, which I share:

    I am bothered by why they would log March-June wiretaps separate from pre-march,

    Having many times pushed the envelope on commenting etiquette here, I’ll give one last shove before bmaz (or freep) whomp me.

    I thought best to refresh my memory of what was happening around the WH in March 2004 that might help explain the shift that drational notes, and so my first forays were to EW’s Timeline list.

    Damn.
    If I am reading correctly, these was the period in which several potentially significant things occurred, and may have implications for taps done via Treasury (which, FWIW, I don’t have the background to make heads nor tails of):
    1. The WH email archives were missing — including OVP’s — for dates relevant to the Iraq War and also to the Plame outing.
    2. Several months later, note that Abramoff emails to the WH were finally discovered on a Greenberg-Traurig server. [And how in hell Greenberg-Traurig links up with AIG is unclear to me, but I’m certain it does, via ‘Greenberg, Hank’.]
    3. Perhaps most significant from the WH perspective – and possibly one explanation behind GWBush being particularly pissed at Rove – was the instigation of the Abramoff investigations by the FBI. Perhaps GWBush blames Rove for somehow allowing the FBI to stumble into the Abramoff mess…? 4. At any rate, the March 2004 instigation of the Abramoff investigation may well have changed the way that the WH wanted to control/hide ’surveillance’ or ‘wiretapping’ because Rove and Abramoff were almost certainly sending money to and from the Caymans (and God only knows where else) via the Mississippi Casinos or Indian gambling. At least, that’s the least complicated, most obvious hunch.
    5. On 14 March 2004, it does appear that something shifted in terms of the way OLC/WH wanted surveillance handled among agencies that reported to the Exec Fourth Branch.

    ==================================
    From EW’s Missing WH Emails Timeline: I’ve copied a fair amount, to highlight the fact that the WH and OVP had already mastered the dark arts of ensuring no records could be located later:
    February 2, 2004: Addington drafts a letter … listing the new terms for a search of the OVP domain. If “Joe Wilson” or “Niger” were mentioned in the October 1 gaggle, the October 1 Martin to Mayfield email should have been found in this search. No email archive of WH emails.

    February 3, 2004: No email archive of WH emails.

    February 7, 2004: No email archive of OVP or WH emails.

    February 8, 2004: No email archive of OVP or WH emails.

    February 11, 2004: Date on which June 11, 2003 Martin to Mayfield email printed out. The email was apparently discovered in a search of OVP files by “OVP RM.” It mentions “Pincus” and “Niger.”

    February 11, 2004: Date on which July 11, 2003 Martin and Cooper email exchange printed out. The email was apparently discovered in search of OVP files by “OVP RM.” It mentions “Cooper” and “Niger.” Cooper’s initial email was printed out, probably on July 11 or 12, though it has no date; Libby wrote notes on it on how he would respond to Cooper.
    March 2004: FBI begins probe into Abramoff scandal.

    March 24, 2004: Fitzgerald asks Libby about email, suggesting Fitzgerald was surprised by the lack of email he received as evidence….

    March 2004: FBI begins probe into Abramoff scandal.

    May 8, 2004: Date on which Abramoff-Susan Ralston email using the RNC server printed out by Greenberg-Traurig. This may have been the first public indication that White House employees (Ralston) were using the RNC server to bypass the more public White House server.
    ======================

    March 4, 2004: Ashcroft hospitalized with pancreatitis.

    March 10 2004: The hospital confrontation between Comey and Gonzales and Card.

    March 11, 2004: Bush reauthorizes the NSA domestic spying program without DOJ’s certification of legality.

    March 11, 2004, from Goldsmith to Gonzales: OIPR 140 is a one-page letter dated March 11, 2004, from the Assistant Attorney General for OLC, to the White House Counsel seeking clarification regarding advice that OLC had been requested to provide concerning classified foreign intelligence activities.

    March 12, 2004, from Goldsmith to Comey: OIPR 139 is a one-page memorandum dated March 12, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which provides legal advice concerning certain decisions relating to classified foreign intelligence activities.

    March 14, 2004: OLC 125 is an undated two-page document entitled “Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME].” OLC 126 consists of two copies of a five-page document, dated March 14, 2004, which consists of bullet points related to OLC 125. OLC 125 and OLC 126 were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities

    [All bold and italics mine.]
    =============================

    Presumably some of those ‘other Exec Branch officicals’ were at Treasury.

    Okay, enough ‘envelope pushing’ for the present!
    But anyone new to EW who may be reading these Al Haramain posts really ought to check out the links to her timelines, which are located on the right side of the page. (The Ghorbanifar link is still showing a 404 error; to locate that link, do a search on his name.)

    To summarize, it appears that the BushCheney administration had all kinds of reasons to provide ‘inaccurate’ information to the courts: Rove, Abramoff, weird OLC interpretations, Plame… you name it, they had it.

  13. Mary says:

    This post is covering a lot territory, but on the first, highlighted premise, I agree completely. Walker hasn’t actually ordered any kind of access by defendants yet, he’s ordered DOJ to get a move on and fish or cut bait. Rather than wring hands and wail that the only options are to veil every piece of info, burkhaesque, or to force the President’s program to pose for Hustler – Walker is saying that gov has to sit down and review and come tell him what they can come up with after making an effort. He’s saying that they need to go and figure out if they really think a glimpse of stocking should be something shocking. He is not saying that anything goes.

    Moving on to the data mining issue
    I also expect those declarations provide some totally new problems for him to consider, such as whether data mining of Americans constitutes electronic surveillance.
    I think it is helpful to look at what happened in Judge Diggs-Taylor’s court and ruling.

    After she made gov brief her on the program, she did end up separating out data mining in her ruling and she allowed the invocation of state secrets to block that issue.

    The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data- mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants’ motion for summary judgment with respect to this claim.

    It’s also kind of interesting to look from that ruling at the “public face” DOJ was still putting on the surveillance program three years ago. If you look back, that was when they were still making the “al-Qaeda calling” analogies. And Walker was making rulings, cited by Digg-Taylor, about the nature of DOJ’s public admissions (or, as Gonzales seemed to keep saying, the program the President has disclosed as opposed to “the program”)

    District Court Judge Vaughn Walker found that the
    Government had admitted:
    . . . it monitors “contents of communications where * * * one party
    to the communication is outside the United States and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” (citations omitted). Hepting, 2006 WL 2038464, at 19.

    Three years ago, the President was selling this all as an “al-Qaeda is on the line” program and Gonzales was carefully parsing his testimony before Congress to be about the “al-Qaeda calling” program that the President had revealed, pretty much admitting to additional components. If, three years ago, DOJ was viewing its role as parrotting the President’s public lies about the program, even at the cost of lawyers filing lies with the court(s), then the inaccuracies may well go to the fact that there was more than the “al Qaeda calling” going on and that is pretty much what Digg-Taylor seems to have found when she forced a real briefing on the program as well. Her rulings indicate that on the actual surveillance, there was more than an “al-Qaeda is calling element” and there was also a data mining program.

    • emptywheel says:

      Great point, Mary.

      But let me make sure I understand. Are you saying that Diggs-Taylor had seen reference to the data mining in whatever the govt filed with her but that had been presented as state secrets, and that presumably that information also appears in Walker’s files (since he got everyone else’s)?

      Which would suggest the still new info in teh declaration is something else?

    • Nell says:

      He’s saying that they need to go and figure out if they really think a glimpse of stocking should be something shocking. He is not saying that anything goes.

      {LOL!} Wins the thread.

      /fangirl

  14. GregOPauls says:

    not a very fact filled piece. some of the above comments point out the slighted view. i guess that any one can write what they want despite taking into consideration other view points or facts.
    no mention that other wire taps on other agencies may have saves many lives of many people. lets focus on the larger picture of not attacks on our soil since September 11, 2001. i guess that if any here had lost a loved one on September 11, they would want justice, but lets not talk about reality.
    why don’t we move on to a more important subject of the middle east, the economy or starving people in America.

    • readerOfTeaLeaves says:

      If someone did harm, I want them legally, within the bounds of legal processes and procedures, to be held accountable. Using sloppy short-cuts, which include mistaking law-abiding citizens for terrorists, creates lots of problems. For starters, it puts the wrong people under the microscope while real scoundrels go free.

      To bring someone to justice, you have to follow the law.
      Short cuts don’t work.
      It’s easy to make mistakes and that’s why thoughtful adults seek the best information, and try to ensure they get feedback and are accountable for their actions.

      This is not about letting terrorists go free.

      • LabDancer says:

        Can I just point out: this appears to be only the second thread here on which GregOPauls has posted, so it’s understandable if folks are failing to recall what was learned from the first instance, which in succinct terms is this: GregOPauls is an ass, & moreover in that regard the sole & exclusive property of freepatriot.

        • phred says:

          freepatriot always gets to have all the fun ; ) FWIW at least Jodi knew what the shift key was for and could write in complete sentences (admittedly with an excessive use of bold). They just don’t make ‘em like they used to ; )

          • BoxTurtle says:

            OT: Freep’s not here, until he shows up to claim his leftovers I vote it’s open season for all.

            OT: Blago’s true motive.

            I wonder how Walker is going to handle this. He’s been lied to and the only reason the liars came clean was that they could no longer deny it. Further, while lying, they tried to keep him from finding the truth. The first is perjury, the latter is obstruction. My experience with judges says this is the sort of thing that creates HEAVY sanctions for lawyers and quickly.

            Boxturtle (I think Walker is going to use their law licenses for toilet paper)

              • BoxTurtle says:

                Are you refering to freep’s leftovers or Blago? /s

                But wouldn’t it seem odd to you if Walker DIDN’T sanction those lawyers?

                Boxturtle (Admits to looking forward to a judicial temper tantrum)

            • LabDancer says:

              You’re of course right about the “heavy sanctions” observation in general — but I hasten to add that there is a long, well-established tendency on the part of judges to cut government lawyers a lot of slack where their MOTIVATIONS appear to have been somehow ‘pure’ [in the sense of fightin’ crime, or saving us all from terr’ists, or caught up in some head office b.s. & otherwise jes fallerin’ orders]. This comes from the facts that: the judges know that government lawyers, particularly careers types, are far from over-paid; & moreover the judges who are involved with granting wiretapping warrants form something of a bond with the government lawyers who appear before them EX PARTE in the presenting of affidavits & of evidence about the status of the Wars on Crime & the Wars on Terr’ists etc, which affidavits & ‘evidence’ themselves tend to set the blood to boiling.

              This isn’t true of ALL judges — but in my experience it’s GENERALLY true, & it takes a judge equipped with both a powerful intellect & strong moral compass to resist it, & such persons are found approximately as rarely in court settings as anywhere else.

              • bmaz says:

                These lawyers’ motives were not pure. Many of them, including notably Coppolino, have been in the fray long and deep enough that they knew full well the fraud being perpetrated upon the court.

                • LabDancer says:

                  I wasn’t referring to THESE lawyers; I was referring to the general tendency. Indeed, it seems clear that Judge Walker is among those ‘rare’ judges equipped with both sufficient intellect & moral compass power …

                  which actually plays a part in my own theory that what’s going on now, since Friday’s Circuit Court ruling, is that the government is executing on a plan to try to get Judge Walker to accept that he is from this point somehow ‘compromised’ from executing too broadly on his judicial duties by having been so deeply ‘read into’ TEH PROGRAM.

                • DWBartoo says:

                  “These lawyer’s motives were not pure.”

                  Coupling this sentence to LabDancer’s truism @ 76, regarding judges and intellect and moral compasses, along with the interesting coincidence that the majority of those in the Senate and the House are lawyers, we face the very likely reality of never knowing ‘the half of it’ …

                  Were it not for the capacity, competence and compassion so evident among the lawyers who share their insights, knowledge and experience here with the exceptionally perceptive and wise non-lawyer, Marcy, the ‘law’ would be in graver peril and even more disrespected than it is.

                  bmaz, you appear to be saying that sooner, rather than later, there will be an ‘accounting’.

                  How extensive (broad and deep) an accounting, might we, under the ‘best’ of circumstances expect?

                  And, if the ‘best’ case does not obtain, will we learn much of anything at all.

                  Allowing the Executive ‘branch’, any Executive, Republican OR Democratic, the power to hide, virtually ‘anything’, behind a wall of ’secrecy’, with no effective oversight by any other entity, Congress or the Courts, provides the Executive a power that will be abused … extensively, profitably and (probably) endlessly.

                  We have joined Alice in Wonderland, and it may take quite a while to find our way out.

                  ;~D

          • emptywheel says:

            Jodi didn’t have problems with her masculinity.

            AND she knew where the best Beamish on tap was. They don’t make trolls like that anymore.

            • phred says:

              I’ll always have a soft spot for our ol’ house troll ; )

              And BoxTurtle, I always enjoy your parenthetical comments after your signature, but the one at 67 is especially good : )

        • readerOfTeaLeaves says:

          Ah, excellent news.
          Freep has another one to try and move beyond third grade level, then.
          Where is freep?

  15. GregOPauls says:

    that is what i love about this country, we are all free to do almost anything we want.
    I am also worried that this country’s focus is not about it’s own people. we pay for health care and abortions in other countries but not in our own. does not seem correct to me, why do we pay for other countries people to get health care but not for our own people.

  16. Mary says:

    3,9,15,17
    I have no clue on the log, but I’ll add one other reason why it might have been produced originally, especially since no one’s head seems to have been hung over it. There is always the chance that as the FISCt was told of the illegal surveillance on al-Haramain (whether in connection with applying for a FISA warrant or in an after the fact revelation to them that a FISA warrant had been issued without complying with the firewalls) and the court realized that there were atty-client communications captured, it ordered that the log be produced. Not super likely, but an option.

    On drational’s thoughts that the actual log was generated under a FISCt authorized surveillance, but that FISCt authorization didn’t comply with the court’s requirements and might have been voided by FISCt or voidable in an appropriate proceeding, I don’t really have a strong inclination one way or another. I could get creative, though and maybe come up with something to “explain why this case is still being litigated 3 years after it started, when it threatens to expose everything else

    If you hypothesize that DOJ had their illegal on, then went to the FISCt for an order and didn’t go to the Chief Judge and didn’t disclose the illegal, and – in violation of the Chief Judge’s standing orders – got an order from a different FISCt judge who had no information about the unconstitutional program, then you have a real possible nightmare for Gov.

    Let’s see what might happen when the FISCt Chief Judge discovers that they were bypassed for an order of surveillance on someone who had been a target of the illegal program and that this generated surveillance of lawyers, very likely surveillance that involved the lawyers other clients as well.

    Pissed might not begin to be the word. Let’s say the Chief Judge determines that the surveillance order is void as being issued in violation of the standing orders. Now you have unconstitional extra-judicial surveillance that was used to get a judicial surveillance warrant, and that judicial surveillance warrant is now voided for misrepresentations to the court. That means you have now coupled surveillance done in violation of FISA with surveillance done in violation of direct FISCt orders. At that point, I guess gov’s fall back would be – but we didn’t need the FISCt order, bc, uh, ya know, we can unconstitutionally search/seize communications without a court order, so voiding the order is no biggie, we’re wearing our magic thong of inherent powers. And the criminal case when we file it won’t be in the FISCt so they can’t do nuttin to us.

    So the bootstrap on the log in that kind of a situation would be that it is the product of an order, but either a voided order or an order secured by conduct of a fraud on the court and the issues of voiding and/or fraudulent aspects of the issue going to other unconstitutional surveillance preceding the order. And now the argument – that the surveillance reflected in the log was ok anyway, as part of our super secret extra-judicial program – is colored by the overlay of fraud on the court.

    And more

    Bc it would also then open the door that many other FISCt orders might also have been issued using the unconstitutional information AND in violation of the Chief Judges standing orders. And with the Patriot Act amendments, those orders, already issuing without criminal probable cause, were also likely issued in violation of FISCt procedures and orders and the Exec Branch lawyers knew and exploited that weakness in the system.

    That’s a big can of worms.

    I still tend towards the simpler explanation, that it is a log of activities that were being conducted under “the program” and not under a FISCt order, but the whole system was and is so bad and the lawyers have been so devoid of any baseline of ethics and integrity, that sometimes you can’t help but speculate on parades of horribles.

    Like that Roberts didn’t just resign in on the ideology of the whole mess, but maybe that he was informed that he issued a surveillance order for someone who had been targeted by the unconstitional program – an order application that should have gone to the Chief Judge and didn’t – and that the lawyers involved were violating the Chief Judge’s order when they went to him and yet bc of all the secrecy involved, they were not going to be punished in any fashion for the lies to the court.

    How will you ever know? DOJ is nothing but a vipers nest of liars and Obama is moving on up and the Judges who might be tough enough, Walker or others, are having messes so large dropped in their laps, that extend so far beyond the cases in their courts and into other courts where they have no standing and on issues not before them – what they can do, even with the strongest of judges, is limited.

    • Hmmm says:

      Let’s see what might happen when the FISCt Chief Judge discovers that they were bypassed for an order of surveillance on someone who had been a target of the illegal program and that this generated surveillance of lawyers, very likely surveillance that involved the lawyers other clients as well.

      But wouldn’t that horse already be out of the barn? Surely the FISCt already knows about this, irrespective of whether Walker ever sees the log or not, and irrespective of whether the al-H lawyers ever regain access to it or not. I would think the FISCt and the Exec branch would at this stage be far more worried about the public release of information about the log, because then the citizenry would know what the FISCt already knows, i.e. that NSA and Treasury and DoJ and other departments and agencies have by their misrepresentations to the FISCt made it a laughingstock. Seems like this is not only a problem for the FISCt itself, it becomes a potential national security issue because then the whole legal figleaf would be gone and the floodgates could be opened to legal challenges to surveillance generally.

    • emptywheel says:

      Oh, that I’d buy too.

      My point is that I’m agnostic about whether or not the illegal wiretapping happened well before 2/18 and/or after, mostly bc there’s no evidence to the fact.

      Though I will say that the fact that the declarations were submitted in both cases suggests they’re general. Taht may be no more than a “oh by the way we had this fabulous work around the poison fruit,” but something that was both general and specific to al-Haramain.

  17. Mary says:

    40 – I definitely think that she had been given access to data mining elements.

    Her case, though, was the ACLU v. NSA case (she had NSA in front of her as a party which gave a bit more clout to hauling their butts in). I have to admit, I just show up here and wing things without more than a mental record on what’s going on (teh google is my everyday friend0 – I’m not sure I have a complete idea of everything that Walker has had access to – I know the multidistrict panel put him in lead on cases, but I thought they were all the telecom related cases? You would have a better take on that, but if he didn’t get the NSA case info, I’m not sure if he would have had the data mining info, esp if the telecoms weren’t directly involved in the datamining. I just don’t know.

    • emptywheel says:

      The NSA is named in this suit too, so unless they gave Walker something short of what they gave Diggs Taylor (and the timing was almost the same) because they knew there were other problems with al-Haramain, then presumably he (or rather, King) got what Diggs Taylor got.

      That said, something has been haunting me.

      The govt submitted a filing right after al-Haramin did in 2006. And then, in May of that year, they superseded their first filing. And then there were two more moments where something like what happened this year may have happened. That is, they twice tried to get the submissions moved out of the SCI in Seattle to someplace closer to home–like DC.

      Now, I wonder if it’s possible that they made a more complete representation to King, then thought this case might get to discovery so took out the really damning bits, and then later they tried to get it back. No one would have known, after all, if they had just replaced it as it was being submitted to the DC SCI.

      That’s maybe too paranoid even for these fuckers. But then again, maybe it’s not.

      • bmaz says:

        I think there is a lot of over thinking going on as we wait for Walker. As Marcy noted previously, the same set of notices re: the “inaccurate information” were filed under both al-Haramain and the general consolidated docket numbers. Furthermore said items were the last things filed on Friday and the first thing out of the gates Monday was a release of the OLC opinions by the DOJ, some of which impinge greatly on the Bush/Cheney foundation for teh so called”program”. That foundation would have been, almost by definition, part and parcel of the discussion and conclusions behind the declarations made in relation to the state secrets and classification arguments made by DOJ early on in al-Haramain and the other cases back in 2005 and 2006.

        The ground has changed on everything they did and claimed early on. The gig is up, and that is, thanks to the 9th Circuit declining jurisdiction, going to be played out sooner rather than later. The government has a problem, and they are doing the best they can to smooth the jagged edges as it unravels.

  18. JohnJ says:

    Whew! I can only comprehend about 20% of this stuff while I get ready to go to work; but a reminder about who possibly knew what:

    which could be signed only by the attorney general, went directly to the chief judge and none other. It was unclear to Tamm what was being hidden from the other 10 judges on the court (as well as the deputy attorney general,

    The chief FISA judge was most likely in on this.

  19. Mary says:

    25 – one reason might be (and this ties with the intimidation issue to some extent) that they were not likely to be able to get authorization to tap US citizen lawyers on US soil.

    44 *g* My age is showing though, isn’t it?

    • emptywheel says:

      Though–as Belew pointed out–we have VERY good reason to believe that happened in other terrorism related cases. CCR’s suit on this issue was a vaguer “you’ve been tapping our attorney client discussions” which got booted on standing grounds. But they had real reason to believe those conversations were tapped.

  20. Mary says:

    58 “But wouldn’t that horse already be out of the barn? Surely the FISCt already knows about this, irrespective of whether Walker ever sees the log or not, and irrespective of whether the al-H lawyers ever regain access to it or not.”

    It’s all just a hypothetical as to why there might still be litigation going on, but even though the horse is out of the barn in FISCt, you have to realize that Walker’s courtroom is a whole different racetrack. The FISCt would have been pretty limited in what it could do, other than voiding the order. The FISCt did not have the aggrieved parties before it, Walker does.

    • SebastianDangerfield says:

      Quoth Mary:

      It’s all just a hypothetical as to why there might still be litigation going on, but even though the horse is out of the barn in FISCt, you have to realize that Walker’s courtroom is a whole different racetrack. The FISCt would have been pretty limited in what it could do, other than voiding the order. The FISCt did not have the aggrieved parties before it, Walker does.

      Moreover, U.S. District Court is a nonsecret racetrack in which the constitutional right to a public trial attaches.

        • SebastianDangerfield says:

          Indeed. The government is saying to Walker: “Whatever you do, do not write an opinion that effectively discloses the content of the document, much less attach it to the opinion.”

  21. LabDancer says:

    Mary has raised the incident involving Judge Diggs-Taylor, & IMO it’s both well taken & in turn raises another possibility for what the government is up to with these latest filings, that is:

    somewhat in the nature of how the Bush-Cheney government dealt with the overlapping Gangs of 4 & 8 [9 when they added in Rep Tom Delay], the government here may be pursuing a course of actually or apparently OVER informing Judge Walker by effectively having him ‘read into TEH PROGRAM to such a degree & extent that it presents him with a challenge just to make meaningful rulings on this case — as indeed the government may have found in presenting Judge Diggs-Taylor with a challenge that struck HER as insurmountable.

    The broad strokes of the government’s possible conundrum here are not without precedent in the more prosaic world of superficially warranted wiretaps. Obviously I can’t discuss situations that arose when working for the government, but based solely on situations that arose on the defending side, & even then restricting myself to cases where the defending side has not been put under some sort of restriction, I’ve run into a number of instances of ‘fruit of the poison tree’ scenarios where something went seriously off the rails early in a string wiretapping warrants but was either overlooked or ignored & subsequently not picked up until in the criminal trial or in the course of pre-trial discovery exchanges in contemplation of a forthcoming criminal trial.

    What has tended to happen thereafter is that, first, the case in which the problem has been picked up usually just gets abandoned [to the delight of the grateful client, whose carcass is most often otherwise mostly completely cooked but for this problem having been uncovered], at least sometimes I suspect on the notion that a brutal cutting of one’s losses at least allows for a timely re-grouping.

    Thereafter typically the government goes into a period of analysis to determine whether other cases, not just current & future ones but also past ones, are similarly compromised, & where so, how such might be resurrected, by ‘fix’ [all of a sudden, long-outstanding plea negotiations offers attract government interest], or by the abandonment of an entire sullied line of evidence. Often marshalled against these efforts are the [sometimes-formal-but-more-often-informal] lines of communication among defending lawyers, who, tho typically a notoriously irascible bunch, have been known to find ways to convey ‘news’ of potential interest to their fellows, even when under court-ordered strictures.

    The government here is facing an analagous problem. It may be that the government thinks it can convince Judge Walker that it somehow succeeded in “fixing” the problem sometime ago [Recall that the descriptions of what happened AFTER Andy & Fredo’s Trip to the Hospital involve a brief meeting between President Bush & AAG Comey in which the former prevailed on the latter to somehow “fix” the problem, followed by AAG Comey’s claims to have proceeded thereafter accordingly.]

    So far we’ve had at hand a couple of unusually effective analytical tools — I refer to Judge Walker & our own Fearless Leader. It may be that the government is acting on a strategy of denying us the benefit of one of them.

    • JohnJ says:

      irascible:

      marked by hot temper and easily provoked anger

      come-on guys I have to go to work and don’t have time to improve my vocab…*g*

    • stryder says:

      “somewhat in the nature of how the Bush-Cheney government dealt with the overlapping Gangs of 4 & 8 [9 when they added in Rep Tom Delay], the government here may be pursuing a course of actually or apparently OVER informing Judge Walker by effectively having him ‘read into TEH PROGRAM to such a degree & extent that it presents him with a challenge just to make meaningful rulings on this case — as indeed the government may have found in presenting Judge Diggs-Taylor with a challenge that struck HER as insurmountable”

      This sort of poison fruit/mole/trojan horse was what I was driving at in the last thread about any reasons that whether or not the release of the log may or may not have been intentional.
      Thanks
      Tricky bastards

      • lennonist says:

        “somewhat in the nature of how the… government dealt with the overlapping Gangs … the government here may be pursuing a course of actually or apparently OVER informing Judge Walker by effectively having him ‘read into TEH PROGRAM”

        But that wouldn’t have made sense wrt to logs, would it, as they created standing which was likely the best protection they had against any judicial review? I wondered, however, if that might be the purpose of the “correction” being considered right now: Prevent any further disclosures by “poisoning the well” and reading the court into the program and into its own ethical dilemma, pushing him into hopefully falling back onto ’state secrets’ by letting him know how far this might lead? Just a wild, pretty-much uninformed guess compared to the grasp you all have, but ‘misunderestimating’ seems wrong in light of what was revealed yesterday.

        As Hirsch says of the Abu Ghraib photos (and videos!), maybe we ain’t seen nothin’ yet and this is an attempt to keep it that way?

  22. ondelette says:

    I put this on the other thread, but I’ll ask it here as well. SARs constitute a very credible ‘probable cause’ for a warrant, for either financial records or a tap. According to what emptywheel posted on the other thread, the government has a database of millions of them. Why then would the NSA datamine them directly, and not hand suspects names to DOJ to have IRS locate possible SARs on them? The SARs go into court clean, since they represent data acquired without illegal surveillance? As for the reporting to DOJ which people/organizations the NSA has surveilled, it all depends on your definition of ’surveil’. Data in the database that isn’t actually looked at, but is part of the filter, isn’t subject to rollback under FISC rules, and doesn’t need to be destroyed under minimization, just not looked at or passed to another person or organization. Only targeting rules dictate what can be in that database, and the fact that minimized data is in there doesn’t constitute ’surveilling’ the party whose phone call is there. So it’s technically clean from NSA ’surveillance’, and the SAR is totally clean if used this way. So it doesn’t make sense to data mine all the financial data when there are ‘millions’ of warrants waiting to be acquired. It’s even possible to train the filter over at the NSA to get successful warrant applications.

    Again, just a theory.

  23. klynn says:

    A little OT but for all the Judge Walker fans…

    Thought you might enjoy reading this 2006 testimony by Judge Walker before the House Subcommittee on Capital Markets,Securities and Government Sponsored Enterprises.

    It is an interesting read in light of our economic situation.

  24. wavpeac says:

    Maybe I shouldn’t say this out loud, but there is a certain amount of excitement in the troll worthy nature of this discussion. As usual on my favorite blog of all time, you all may be standing on someone’s nerve. The truth has a way of finding it’s way…like water.

    Wow…awesome topic, and comments.

  25. JohnLopresti says:

    I, too, was looking for features of affontery that @38 seems to discuss in metaphor by matching what appeared to be the judge’s planning in the IL case opinion filed August 17 2006, which clearly was going to go to the appeals court there, and the current Walker evidentiary dispute. As I recall, there was pressure in IL and some questioning widely elsewhere whether the IL case would reach decision or would be aggregated and sent to Walker. An interestingly thorough contemporaneous August 19 2006 article was published after the IL opinion’s filing, which seems to examine the politics of making those separations of issues in that IL matter; the ‘article’ linked actually was an academic’s response to a NYTimes discussion of the Taylor decision.

  26. WilliamOckham says:

    I still think that the government is very worried about the judge seeing the sealed document and then deciding whether the al-Haramain attorneys are aggreived parties under FISA. Read the government’s last brief closely paying attention to the way they refer to ‘classified information’. For example:

    The mere fact that the Executive branch voluntarily provided the Court with access to classified information, for purposes of deciding the state secrets privilege or other related matters, does not grant the court authority to, in turn, disclose classified information to a litigant over the Government’s objection.

    Walker hasn’t been provided with the sealed document yet, just an ex parte filing. I think they are more panicked about Walker seeing the sealed document than anything else. The plaintiffs already know what’s in it. That makes me wonder if they lied about the sealed document in their filing. Another weird possibility is that the sealed document isn’t actually where they said it was. I bet that would piss off the judge.

    I have to go do paying work, but I welcome anyone who wants stay at this topic to speculate on why the government had someone who worked in a SCIF putting together press clippings and printouts from jihadist websites to send to al-Haramain.

      • WilliamOckham says:

        Well, that’s what Coppolino said, right? On 1/19/09:

        In the Court’s January 5, 2009 Order, the Court ordered that within 14 days of the Order, the defendants “shall arrange for the court security officer/security specialist assigned to this case in the Litigation Security Section of the Department of Justice to make the Sealed Document available for the court’s in camera review” and that 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.” See Al-Haramain v. Bush, Slip Op. at 24. The Sealed Document at issue in this case has been lodged previously in this action with the appropriate court security officers.

        I’m raising the possibility that maybe that wasn’t true. Maybe the sealed document was moved at some point. The only thing that was said in that May 12, 2006 conference that strikes me as potentially problematic for the government would be if what they told the judge (then Garr King) about the location of the document wasn’t true.

  27. Mary says:

    69 – I’m thinking not much is too paranoid, but there are so many options to pick from that the paranoid ones are just more apples in the bushel

    70 – but those judges haven’t let anyone get past the standing issue, bc they have allowed the “classification” of crime.

    73/78 “The non-profit community would very much like to see financial assets transferred to an agreed upon 3rd party and used in a manner consistent with the original donors’ intent.” Interesting how you never hear that in the discussion. Thanks for adding that info and the walk through on how the frozen assets are treated.

    81 – Coppolino, and then there was the lovely Mr. Keisler on the torture cases. Whatever happened to him?

  28. Mary says:

    I’m thinking the ex parte filings are going to include Walker asking gov to brief how the EO prohibition against classifying crime applies once he sees evidence of … crime.

    • emptywheel says:

      Agree.

      Though I would also say that some of the stuff that went down in Oregon–which I haven’t looked at in detail–addressed teh question of whether or not they were invoking classification to hide a crime.

      Though ultimately, I would expect a nice round of debates about whether, having seen that Bush wiretapped illegally, WAlker points out that even according to all the EOs they’re citing, it is illegal to classify to hide a crime.

      According to the EOs themselves, they have to declassify.

  29. emptywheel says:

    Sorry. That wasn’t very clear.

    Having scanned back through the Oregon filings, the issues about classifying to hide a crim that you keep looking to be raised here were raised a number of times there. But I never went through in enough detail to tell you what the resolution of that was.

    I will say the discovery questions really targeted that issue directly–asking for details about how classified what when. So of course if they ever get to discovery on this you can expect to see them again.

  30. readerOfTeaLeaves says:

    There are many similar examples. In all cases there is reliance on secret evidence that the organization may not see. I suspect that Levey has taken material from suspect sources (”experts” with agendas), classified them and then used the now classified material as the basis for designations that could not be effectively challenged. Press releases were issued crowing about another great victory in the war on terror.

    IANAL.
    Nevertheless, having watched the Bush crowd deliberately launder falsehoods through reporters, who protected those falsehoods as constitutionally protected ‘press sources’, this kind of thing seems to be their modus operandi.

    I think of them as political retroviruses.
    Time after time, they appear to invoke the very mask they will later destroy and then masquerade as an innocent agent. My background in epidemiology is fairly limited, but it often comes in handy as I read EW’s threads.

    And FWIW, when I look at the scope, magnitude, and speed of the financial meltdown — conspiracy theories aside, b/c I don’t find them all that useful — it certainly appears that certain parties took a number of years getting pieces in place that they then almost certainly took down in a very short period of time. And insider information had to be part of it.

    I also recalling reading (at Wikipedia, actually, hope bmaz doesn’t insult me for it) that Abramoff was using a non-profit to arm West Bank Israeli settlers. And it’s quite clear that he was also involved in offshore accounts. Add in someone like ‘Sir’ Stanford and plenty of people were operating behind the guise of legality. It’s the only way they can implement their crimes.

    • readerOfTeaLeaves says:

      My 112 was intended as response to 111; ‘reply’ didn’t function correctly.

  31. belewlaw says:

    I have never knowingly committed an unpatriotic act, but it’s possible that I’ve unknowinly said “good morning” to some turrerist in disguise…if the schizos in charge could pin that on me and learn of my inciteful, inflamatory writings on the internets, they could freeze my gallon jug of pennies, huh?

    Actually, under the Patriot Act, they could. They won’t, of course, but the definition of “material support” is so vague and broad that providing information on a blog that aids a designated entity by providing analysis or encouragement could fall under that definition. So could criticizing the government and urging it to change its policies. The Bush administration even tried to get the definition of material support amended to include the provision of “intangible” goods or services. Congress balked when they couldn’t figure out what an intangible service might be. Prayer?

    The Humanitarian Law Project is doing great work, led by Professor David Cole, their counsel, in attacking and narrowing the material support definition. But in the meantime, it’s not your jar of pennies that is at risk but up to 30 years in prison.

    Again, this will never happen. But the chilling effect has deterred many people from doing humanitarian relief or speaking out publicly about pernicious policies.

    • acquarius74 says:

      Thank you again, belewlaw.

      You really punched my button when I read ‘Patriot Act’! Viet Dinh, member of Council on Foreign Relations, mastermind of that Constitution Killer. I’ve ranted here before about him so won’t repeat.

      I must learn more of the Humanitarian Law Project and Prof. David Cole. Did not know of them.

      My precious pennies AND 30 years in shackles?? Ha, at the end of my sentence I’d be 105 years old (I’d live just to spite ‘em). You’d get some idea of me if you recall Ruth Gordon’s portrayal of ‘just a poor, defenseless ‘lil ole woman’ in the movie, Any Which Way But Loose. (hee,hee).

      Folks with nothing left to lose but a jug of pennies can act unpredictably sometimes….

    • acquarius74 says:

      Forgot this gem of wisdom:

      Again, this will never happen

      Since you can do the higher mathematics, you’ve figured out that I’m 75 years old. I’ve knowm America at her brightest and best. Would I ever have dreamed She would suffer the rape and pillage of our foundation of laws? Never in a thousand years! I would like to hope that “this will never happen”, but I’ve learned too much… We are at a critical point now and this may be the last chance we get to ensure that it does not ever happen.

      This fine crew here at the Lake will always be able to say, “We did our best.”

      Thank you for honoring us with your company, come back often.

        • acquarius74 says:

          Probably not, b4real..my paternal g/father was born 1850 in the South…
          moved on further west to better evade the hunters and Reconstruction thugs. My dad was in some of the worst fighting in France in WWI…I was last of 5 kids born 1935 heart of the Big Depression.

          Don’t think they depended much on the gov or the Law to protect them, but it was Katie-Bar-the-Door if any tried to take away their rights.

          The never knew the brightest and best days of America. I think survival was their focus.

          BTW, welcome to the Lake. It’s a life-changing experience. (no /s).

          • b4real says:

            OT then

            You make me curious then…

            What do you consider the brightest and best days of the USA?

            gemsys @ gmail dot com if you want to take this outside.

            • acquarius74 says:

              noted and filed. will consider, rarely do that.

              The 50’s – young then, the best yet to come. Dollar was sound, no outsourcing of jobs, production up in all factories and industries. Time of affluence. Ike was president. (didn’t yet know that Nixon was ….). Negatives were the Gray Flannel Man and his Stepford wife (I failed that).

  32. b4real says:

    In response to all comments on all of these articles…

    Hi,

    This is my first comment/response to comments here…so don’t waste your time backgrounding me.

    The first question I have is, in regard to the 02/18 raid, can anyone confirm that there was actually a valid warrant? If so, from what court?

    Thanks.

  33. drational says:

    According to the Lawyer on the case (from yesterday’s thread), there was a “plain old warrant” used for the raid, granted based on an affidavit from an IRS agent.

  34. bmaz says:

    It was a standard search warrant issued by a United States District Court judge, I believe in Eugene Oregon. Was the warrant “valid”? Well, that depends on Your definition of valid. Was it valid on its face, yes. I very, very strongly suspect that the the affidavit behind the warrant is bad however and based upon misrepresentations and illegally obtained evidence, but that is my supposition at this point.

  35. b4real says:

    IR #119,

    Thanks drational, for replying.

    I am unable to find any reference to a “plain old warrant” other than a comment by ondelette #209 on article ’some clues..etc.. posted 03/02/09.

    I’ll check the other posts.

    thanks…

  36. b4real says:

    RE: The 02/18 warrant;;;

    I don’t know, but belewlaw at 123 points to a mag article that says this:


    The chronology of events, according to the federal indictment and other court records, began on

    February 24, 2000, when an Egyptian physician named Mahmoud Talaat El Fiki wired $149,985 (in “support

    to our Muslim brothers in Chychnia”) from the National Bank of Kuwait in London to al Haramain’s Bank

    of America account in Ashland. During a trip that al Buthe made to Oregon two weeks later, he and Seda

    walked into the Bank of America and withdrew $131,300, which they used to buy 130 traveler’s checks

    worth $1,000 each. Seda then returned to the bank the next day and purchased a $21,000 cashier’s

    check, which was issued in al Buthe’s name. On March 12, al Buthe left the United States carrying the

    checks in a laptop briefcase, but at the airport failed to fill out a customs form that’s required of

    anyone leaving the country with more than $10,000 in cash.

    On the nonprofit’s 2000 federal tax return, Seda indicated that the $130,000 in traveler’s checks that

    al Buthe had taken back to Riyadh instead had been used to purchase a mosque in Springfield, Mo. The

    cashier’s check, according to the same return, was refunded to the Egyptian donor.

    Keeping in mind that this was BEFORE 9/11, could this have been the grounds for the search warrant of 02/18/04? Slow, late and all of the rest, but c’mon… 130 thousand dollar money orders?

    Curious, this is three years later and 2 years after 9/11. Slow for a paranoid government, but it does lead one to wonder why the delay.

    I am still trying to validate the warrant of 02/18. It is not relevant to what I am trying to detemine, (i.e. whether al-harriman is guilty of any crime) but where the government overstepped its boundaries in its pursuit.

    btw, This is based on one article, and due to my being lazy, and the Portland monthly being an established periodical, I will (for the time being) accept this as fact.)

    All help and suggestions appreciated.

  37. b4real says:

    The salon article referenced by belewlaws #203 on the “some clues… article”

    “David Cole, a professor of constitutional law at Georgetown University, who has been working with Bernabei and other lawyers on the Al-Haramain Foundation’s case. To this day, Cole says, there has not been a single hearing wherein the Oregon foundation could have been presented with the evidence that led to the 2004 raid, the freezing of its assets, and its designation as a supporter of terrorism.

    Back to the existence of the original warrant for 02/18 issue.. sigh…

  38. bmaz says:

    Why do you doubt the existence of the warrant? I do not. I have no reason, although I have only lightly skimmed it, to believe that the link above is not to the affidavit. My understanding is that the warrant was based on a single affiant. If you are really intrepid on the subject, you can go to PACER and search the court file in this cause number. I am almost certain that some pleading in there will have the affi attached. District of Oregon, cause number 05-CR-60008. I think the case is assigned to Judge Hogan.

    • b4real says:

      Hey Bmaz,

      I do not doubt the existence of the warrant, I start at square one. I am going thru the affidavit linked above, and there is something striking there.

      I will find out what a pacer is and utilize it if I am able.

      In the meantime, (going back to the affidavit…) and iirc…The dates 3/10/11/12/2004 are significant regarding the illegal wiretapping?

      Consider and toy with these selections from the affidavit:

      31. The bank employee was told by SEDA that that they would like to negotiate a check out of the

      foundation’s account for $130,000 worth of traveler’s checks in certain denominations. The bank

      employee told SEDA the bank did not have enough of those denominations and the bank employee tried to

      convince SEDA to take a cashier’s check instead. SEDA said he could not take a cashier’s check

      because the money was to help people and a lot of time these people may not be able to negotiate a

      cashier’s check. Ultimately, the bank employee issued one hundred thiry (130) $1,000 American Express

      Traveler’s checks to ALBUTHE. [MARCH 10, 2000]

      and:

      32. Bank records also show that on March 11, 2000 the remaining funds El-Feki wired to AHIF, Inc.

      were obtained by SEDA through the purchase of a $21,000 Bank of America cashier’s check, check number

      1001040568. Information provided by a bank employee with Bank of America in Ashland shows SEDA came

      into the bank’s Ashland branch of March 11th to purchase the cashier’s check and authorized the check

      to be issued to ALBUTHE. [MARCH 11,2000]

      Granted this is a four year difference, but while I continue doing what I do, perhaps these dates in the affidavit caused confusion/error or something else with regards to the log being turned over?

      I had to hand type the above excerpts cuz I couldn’t cut from the pdf. Anyway, I’m going to keep looking and speculating. But it is ODD that the dates emphasized by the haramain..(/sp I ain’t going to ever get that correct)lawyers are identical with the exception being the year?

      I’m not all the way thru the IRS agent’s affidavit, but if there is something up on the 25th also….

      working….

        • b4real says:

          One more thing…

          If I don’t respond to the email address I left within 24 hours… I am dead or rendered, and you know who did it.

          • b4real says:

            Ok… I am out of here….

            45. 45. I have attempted to learn the disposition of the $130,000 in traveler’s checks and the $21,000

            cashier’s check obtained by ALBUTHE from AHIF, Inc. funds. An analysis of the American Express

            Travelers checks indicates ALBUTHE cashed the traveler’s checks on approximately March 25, 2000 at Al

            Rajhi Banking and Investment in the Kingdom of Saudi Arabia. [MARCH 25,2000]

            You can read the last couple of paragraphs yourself. Three dates in the affidavit, three dates emphasized by the plaintiffs lawyers.

            I am going to read the rest of this long distance. When I think about them cutting that guy binyam’s genitals with razors, and I am a vulnerable nobody, and maybe stumbling across something incriminating…Pelican brief style, gotta go find Julia.

              • b4real says:

                Hi Drational…

                That is hardly what I would call a refutation of the *facts* that I presented or the *theory* I suggest.

                If you have another scenario which explains all of the unanswered questions throughout this thread, please enlighten.

                The most curious aspect of this case is why would they need to wiretap illegally one month after being able to get a legal warrant to search and seize in Feb 04?

                I may be wrong, and unless and until the docs are made public we will not know.

                You take care now, and I did honestly lol at your reply.

                • drational says:

                  “The most curious aspect of this case is why would they need to wiretap illegally one month after being able to get a legal warrant to search and seize in Feb 04?”
                  Sorta my point at 25 above.

                  1. Warrantless wiretapping may have been easier to undertake then messing with a court.
                  2. As I speculated, maybe they indeed had a FISA warrant that they can no longer rely upon to get the suit dismissed.

                  Regardless, Bush and now Obama are trying to cover up the answer to your question under “state secrets”. But you should probably want to know whether it is easy to warrantlessly wiretap lawyer-client conversations on US soil, or whether the FISA court has flaws that allow illegal information to generate warrants.

      • bmaz says:

        Interesting theory. It you find the 25th date in there that would be a fascinating coincidence. Seems implausible but jeebus, those are dates of reference. Keep at it. PACER is the federal court electronic records service. Here is a link to the home page. You do have to pay by the page, but it is not too bad, as charges don’t accrue unless you download for the most part.

  39. worldwidehappiness says:

    I reckon this whole problem is that they were hiding the original illegal data-mining that happened prior to 9/11. And it was sheer incompetence, not malice. And, who knows?, Clinton might even be implicated. I mean why were so many people incompetent and corrupt so soon after the 8 year Clinton administration?

    This is my rough thinking about the timeline:

    – Bush gets elected and starts data-mining because the CIA or whoever want it.
    – 9/11 happens.
    – Someone suggests data-mining.
    – Bush says we are already data-mining.
    – Someone asks “is that legal?”
    – Bush: Oops, we don’t know.
    – Lawyer: It isn’t.
    – Bush: We need to make it legal.
    – Lawyer: But we can’t make a retroactive law that goes back before 9/11 because people will know we were doing it before 9/11. So we better find some corrupt person to say it is legal.
    – They use info gained in wiretapping to get warrants.
    – They get sprung.
    – They fight to hide it all.

    The only flaw in the “incompetence” argument is that Bush went on to torture and a vanity war. But even that is a kind of incompetence. He’s just a stupid insensitive man.

    Also, I’d say data-mining was continued in the hope of finding something so huge that they’d get popular support for data-mining forevermore and the original illegal wiretapping would be accepted.

  40. pdaly says:

    I’ve gotten so many links to really confused reporting on what happened in the al-Haramain case on Friday (see here, here, and here, for starters), that I’m going to take the trouble of trying to correct it.

    My first thought upon reading this, Mr. emptywheel’s Duty Calls present was perfect.
    Great job, EW.

    I’m busy just reading the comments from the last 24 hours. You’re doing that and more.

    Mary’s comment deriding the DoJ’s false dichotomy of “veil every piece of info, burkhaesque, or to force the President’s program to pose for Hustler” are hilarious.

  41. emptywheel says:

    b4real

    Does it strike you as odd that they were executing a search for a money laundering allegation that–per John Pistole they were onto already in 2001–but they didn’t get around to searching al-Haramain for the records they knew of in 2001 until 2004?

    It’s as if the entire investigation were dropped in October 2001 and then picked up again in early 2004.

  42. belewlaw says:

    Not to put too much on the table, but you guys should also take a look at AHIF vs. US Department of the Treasury CV. 07-1155-KI. This case challenges the designation of AHIF. Some of the pleadings have relevant material. Also the tax case against Pete Seda (don’t have the cite).

    • acquarius74 says:

      Thank you for the overview link. I’ll go there next.

      I have a question about the OLC memos, please:

      From everything I’ve read and heard of them I do not see how they could have passed the rule that a legal opinion must always pass the test of whether it is in accordance with the purpose and intent of the law being interpreted.

      Has that rule been junked? Yoo’s purpose and intent appears pretty clear to me: To negate the purpose and intent of the law.

      Thank you for your generosity.

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