Not Seeing Storm Troopers, Not Scratching My Head

David Kravets suggests that everyone talking about the Cheneyesque brief DOJ submitted in the al-Haramain suit last Friday has been scratching their heads.

Legal scholars, the blogopshere and the twitterati have been scratching their heads for a week following the Obama administration’s assertion that it might "withdraw" (.pdf) classified documents at the center of a closely watched spy case.

Some are wondering whether the feds will use storm-trooper-like tactics to remove the data from the case. 

Just for the record, I am not scratching my head. Nor am I, for that matter, seeing storm troopers.

As a reminder (I’ve already laid this out here for the head scratchers), here is what happened.

  1. The Ninth Circuit refused the Administration appeal of Judge Walker’s ruling that he should review the wiretap log to see if it shows al-Haramain has standing (meaning that Bush broke the law). This set up the next step, which is that Walker would review the document, which is where we’re at now.
  2. Faced with the prospect of a judge looking at the representations the Bush Administration made about the program three years ago, DOJ first said, "please don’t disclose anything without checking with us first." (Okay, admittedly they said this using Cheneyesque language.)
  3. Then, they confessed that Bush had lied submitted inaccurate information  and presumably (in the form of four declarations, three of them from the people who first described this program to the Court) corrected that inaccuracy.

Now, keep a  few things in mind. First, with the declarations submitted on Friday, there is presumably a somewhat detailed and maybe even accurate description of the warrantless wiretap program (as well as a description of how Bush lied submitted inaccurate information) in the hands of Judge Walker.

Second, DOJ has claimed (though not proven the case) that al-Haramain has ties to terrorist organizations. I don’t know whether this is true or not, whether they believe this or not, or whether this is just residual fear-mongering left over from the Bush Administration, but for the sake of argument, let’s pretend that at least some of the people involved believe that al-Haramain has ties to al Qaeda.

DOJ is now faced with the prospect that because someone fucked up by handing al-Haramain something they didn’t mean it to have, they are about to enter into legal proceedings that might result in al-Haramain’s lawyers, almost alone of anyone in the US, seeing the details of the warrentless wiretap program. Mind you, DOJ did not (as it might have) appeal the Ninth Circuit’s decision  that Walker should read the documents. Rather, by all appearances, they took steps to make sure what Walker will review is accurate (giving him more information) and are now waiting for his next move. 

From that, we get storm troopers and head scratching.

And one more thing. DOJ used a lot of Cheneyesque language in its brief, I’ll grant you that. But tell me how you get storm troopers from this?

Accordingly, the Government respectfully proposes that the Court utilize the following procedures. First, if the Court proceeds on an ex parte, in camera basis to review the Sealed Document in order to address the issue of standing, then regardless of how the Court would then intend to rule, the Government requests that the Court provide notice to the Government of any order it would place on the public record, so that the Government may conduct a classification review and determine whether to appeal before any information over which the Government claims privilege is disclosed to the public.3 Second, if the Court directs the Government to determine that plaintiffs’ counsel have a need to know classified information, or overturns the Government’s rejection of counsel’s need to know, or in any way directs the Government to grant counsel access to such information, the Government requests that proceedings be stayed before any disclosure of classified information pursuant to such an order, so that the Government may consider whether to appeal. If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.4

DOJ is basically saying:

  1. Let us look at your ruling before you publish it so we can see if there is classified information in the ruling and decide if we will appeal before you publish that classified info in the docket.
  2. Before you decide you get to decide whether to give "need to know" to al-Haramain, give us the chance to appeal your decision on classification issues (remember, the Ninth did not rule on this issue last Friday).
  3. Before you hand any of this over to al-Haramain, give us the chance to appeal your decision on classification issues.

To a large degree, this is very much an admission that we’re in a new stage of litigation over how to proceed from here (assuming Walker rules that al-Haramain is an aggrieved party).This was going to happen in any case. (Mind you, in DOJ’s hysteria, they seem to have forgotten that Courts carry out negotiations all the time on how to litigate cases with classified information, and they even seem to have forgotten that Judge Walker has been downright patient in the face of DOJ’s arrogance.)

But it’s also a plea (albeit one that gets downright Cheneyesque later on) for the Judge not to give one of the country’s biggest secrets to lawyers for what DOJ claims is a group with ties to terrorism without giving the government one more shot at an appeal. 

(One more note: now that I’ve read this passage, I wonder whether Walker has made his decision and obliged their first request–that they get to review the decision and decide whether or not to appeal. So we may not see his decision for some time, though I would hope that that would at least get noticed in the docket.)

34 replies
  1. LabDancer says:

    “I wonder whether Walker has made his decision and obliged their first request”.

    Your wonder is my wager.

    To your corollary wonder as to how long we’ll have to wait, I’d add that the length of the stay likely correlates to the amount of detail in Judge Walker’s ruling.

    BTW thanks for this sort of update. I think it helps with withdrawal symptoms from year upon year of Friday evening document dumps.

  2. emptywheel says:

    It seems like the route to go would be to put a preliminary ruling in the docket saying, “this suit may proceed.” and then get them to accept the publication of “yes, you wiretapped al-Haramain without a warrnt you assholes.”

    Though you’re probably right that Walker would include language like “exclusive” that DOJ probably wishes were classified.

    • LabDancer says:

      …which isn’t to say your recently-surfaced fan base from Planet Oregon is entirely ignorant on this front …

      … [crickets]

    • bmaz says:

      Well, I can’t find it now, but that is exactly what I said about a week ago. The resulting order can be blindingly simple and innocuous. It need not impinge on anything classified in the least. Unless, of course, the government is going to argue that a finding of standing itself is classified, which I would not put past them. In fact, I pretty much expect just that; they are perhaps worried about info getting to al-Qaida, but that is but a fraction of their fear. The floodgates opening is by far the real fear here, not that sources and methods get to AQ.

      • JohnJ says:

        The floodgates opening is by far the real fear here, not that sources and methods get to AQ.

        I have been suspecting this explanation for a whole lot of the lack of action we are seeing so far. There is a huge pile of past misdeeds waiting to be corrected. Move the wrong (or right?) piece and we have a flood.

        Maybe not a great idea while the economy is crashing?.

        Cool, there is an edit! I thought you guys were just seeing things *g*

      • emptywheel says:

        Yeah you did. After you reviewed it, you were like, well, that’s not so bad. It was a comment in my original thread on this.

        But then you and I understand that the Appeals Court did not rule on any of the classification issues. I think that’s one problem–folks haven’t read Walker’s original order closely enough to distinguish it from the arguments the sides were making on classification issues.

  3. stryder says:

    This isn’t so much about protecting the gov tactics to root out terrorists or the fact that their using backdoor data mining techniques to develop targets as it is that they can hide behind nat security to manufacture justifications for the gwot.
    At the very least they can claim that a person is a terrorist or claim that an organization has financial ties to a terrorist organization(anybody who has donated to a chairity),arrest and detain them indefinitely until their allowed legal representation and due process.
    How would this all apply to someone like say Chaquita who has known ties to terrorism?What’s ok for Cahquita isn’t for Al Harramain
    How much do you think it would cost to devlope a defense against this for the average person?Just the threat of this is enough to make a person aprehensive when he donates to anything.Do you know how the money is distributed in your favorite charity?

    • acquarius74 says:

      In Marcy’s 03/03/09 diary, ‘Correcting the Confusing Al Haramain Reporting, here is a sobering comment at # 73 by belewlaw in response to my comment:

      belewlaw March 3rd, 2009 at 3:32 pm 116
      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.

      • stryder says:

        I missed that one.
        That sure nails it huh?
        Ha!take my jar of pennies.Keeps things in perspective
        The world needs alot more people like him

      • klynn says:

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

        When I was an intern at the UN in Geneva, I was told the powers of the world see humanitarian relief two ways:

        1)Humanitarian aid is a political power statement
        2)Humanitarian aid is simply humanitarian aid and is justly needed despite the political power plays.

        An additional thought: when you start self-censoring actions as well as self-censoring speech, you live in a dictatorship.

        Unfortunately,the word humanitarian is no longer understood as “neutral.

        • acquarius74 says:

          From my reading it appears that the granting or withholding of humanitarian aid has been used as a weapon, by our country, the IMF, the WTO, and the World Bank.

          The voice of our humans grows weaker.

        • TheraP says:

          An additional thought: when you start self-censoring actions as well as self-censoring speech, you live in a dictatorship.

          Mr. TheraP grew up in a dictatorship. When, under bushco, he began to see that behavior, those were his exact words!

    • emptywheel says:

      Yeah, I’ve been ready to let loose on Chiquita here. Because obviously, once you’ve managed to get one material supporter of terrorism off, when you argue another is not entitled to its day in court, then you have zero credibility.

    • Jesterfox says:

      Well, I walk over to the local food bank once a month and write them a $100 check. While there, I watch them helping people in need select and bag or box the food that they will receive this month. They thank me and give me a receipt and then send me another thank you and receit by mail. Enclosed is an explanation of their services and other services that they refer people to.

      I suppose that it could all be an elaborate front and my money is really being sent to Iraq to pay for roadside bombs and suicide bombers, but I doubt it.

    • pdaly says:

      I followed your link. That article is so weird.

      Not sure what to make of his first paragraph as well, other than it seems unrelated to warrantless eavesdropping:

      Here’s a crime-fighting idea that I’ve proposed many times: Every six months, everyone in the United States should report to a local police station for a lie detector test. My proposal raises two very basic questions: First, would this program undermine our democratic institutions? Second, would it even work?

      What?!! Lie detector for what purpose? I guess he is telegraphing that everyone is a suspect, innocent until proved guilty be damned. BTW, the bio for the author of this article states he worked for Bell Labs.

      • Hmmm says:

        OT — Yes, it’s certainly one of the weirder things I’ve seen lately. So, I can’t be sure, but I thought the ‘lie detector’ visit to the corner constabulary was meant as a way of getting a current sample of your voice, and officially tagging it with your name & other IDs. Then you go home and the sample goes to the NSA where it gets dropped into whatever colossal sample-pools they might maintain under this fever-dream of a plan. Just to make sure the automatic eavesdropping apparatus will thenceforth have its best shot at recognizing when it’s you that they’re listening to.

        What could possibly go wrong?

    • acquarius74 says:

      I gagged on that one, too. belewlaw is an attorney with connections to ‘designated terrorist’ cases. He makes several very good statements there on Marcy’s March 3,09 diary I referenced in #8 above. I’ll go for link and post later.

      I think belewlaw is Marcy’s “recently surfaced fan base in planet Oregon” which laabdancer refers to above.

  4. Arbusto says:

    In our Bushian world, now entertained by Obama, defendants or plaintiffs attorneys, involved with “secret” documents, seem little more than interested bystanders once removed, shunted off to the side, while the big boys decide what they really need to know and what can be redacted really needs redacting or isn’t germane to the case. In DoJ We Trust.

  5. R.H. Green says:

    If our legal minds are still present on this thread, I’d like some help scratching my head over something. Emptywheel has argued that the government’s lawyers have mischaracterized Judge Walker’s order for the Plaintiff’s attorneys to be given security clearance so they can read his orders, orders he expects to issue upon his cloistered reading of the sealed document. He did not say he was going to reveal the contents of the document, but merely base his ruling on his understanding of its contents. The defense lawyers and media writers have stated or implied that the clearances are for viewing the document itself. Bmaz argues persuasively @ 5 the view I’ve been operating under all along, without noticing this little bug: if all the judge has to say is that the case can procede on the grounds that the plaintiffs have a case, then why do they need security clearances to read such an order. Further, why doesn’t the order equally apply to defense attorneys?

  6. PaulinSF says:

    “had ties to…”

    You know, I’m getting sick of seeing that phrase without any explanation or qualification. It’s a phrase that pretends to mean something, and the person using it hopes you’ll just scoot right past it, accept his inference and move on without questioning. But by itself it means nothing. Except that someone is hoping you’re an idiot.

    • PJEvans says:

      It’s part of the government playing ’six degrees of terrahterrahterrah’ with the other 299.99 million people in the country.

    • bobschacht says:

      The use of this phrase was perfected by Senator Joe McCarthy from Wisconsin a generation ago. I think it is accompanied by a certain tone of voice. The idea has currency in the Rush Limpballs wing of the Republican Party.

      Bob in HI

  7. earlofhuntingdon says:

    Mr. Kravets’ comment that the “closest legal analogy” to that DOJ legal brief, “pertains to the 1990s litigation surrounding Area 51″ is scathing. “Area 51″, whatever black ops really go on there, is associated in the popular mind with unhinged personalities, fantasists, little green space invaders, The X-Files and Independence Day.

    In fact, that brief and the underlying issues are vitally important to whether the feds, or LEO’s acting on their instructions, can pick you up off the streets and disappear you to Gitmo or the USS Bataan at sea, no questions asked.

    Mr. Kravets’ reinforces that imagery with a picture of Star Wars’ clone army of storm troopers, further evidence that he thinks anyone worried about that is nuts. A good illustration, I think, of the maxim that the Devil’s greatest trick was convincing everyone she doesn’t exist.

  8. Leen says:

    “so that the Government may conduct a classification review and determine whether to appeal before any information over which the Government claims privilege is disclosed to the public.”

    So who determines the whether it the information/documents are “classified” this time around? Are there Cheney embeds left in the DOJ?

  9. acquarius74 says:

    To balance all this heavy thinking and frustrated anger, treat yourself to some side-bustin’ laughter over at Adie’s diary on Oxdown today entitled, ‘Guaranteed To Brighten Your Day.

    It’s a video of an old Carol Burnett & Tim Conway show. (and please DIGG it).

  10. emptywheel says:

    NAL but Walker said he would review the document, see if we go forward, and if so decide how much they get to see. he said they would get at least his orders. The rest is up for debate. But for equal protection rules, he’s likely to rule that they get to see declassified filings from the govt.

  11. albertchampion says:

    there are no terrorists. other than those on the payroll of the usg and the mossad, shin beth.

    never forget that.

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