Again on the al-Haramain Stuff

The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.


As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Not only did Obama’s DOJ not appeal the 9th Circuit decision, but they provided additional information for Walker to review when he determines whether or not al-Haramain has standing!! If there were an "escalation" about any decision that had already been made, then why would Obama’s DOJ be making sure Walker got everything he needed to do his review?

Now, Obama’s DOJ has, undoubtedly, adopted Cheneyesque reasoning on the matter that is–or will shortly be–before the case: how to litigate a case that involves information covered by state secrets (the 9th Circuit has already decided this information qualifies). As a reminder, in addition to ruling that FISA trumps state secrets back in January, Walker also started the process of determining how much information the al-Haramain lawyers needed and could be given to litigate this case. The government did the background check to give the al-Haramain lawyers access to classified information, but it determined that they did not have a "need to know" and so could not be cleared for the details of the program. Walker responded by asking both sides to brief whether he–the judge–gets to determine whether the lawyers have a need to know, or whether the executive branch gets to.

But Walker hasn’t ruled on that issue yet!

So when the WaPo says,

In the al-Haramain case, Obama has not only maintained the Bush administration approach, but the dispute has intensified, with the Justice Department warning that if the judge does not change his mind, authorities could spirit away the top-secret documents. 

It’s nonsensical. The judge has not made up his mind yet, not about whether to show al-Haramain’s lawyers the documents pertaining to the program or not (he has said only they would need access to his own rulings, though he has suggested the would likely need much more), so why would he have to change it?!?!?! Indeed, the filing in question talks prospectively–suggesting procedures they’d like Walker to follow once he makes up his mind.

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. [my emphasis]

See that bolded bit? That’s proof that Obama knows well that Walker hasn’t decided yet. It’s proof that the issue under consideration now is no longer state secrets, directly, and instead whether the Courts or the executive branch decide which information can be revealed in litigation.

What Obama’s DOJ has asked for, basically, is that Walker not hand over the documents in this case without giving the Obama Administration an opportunity to appeal that decision.

Now, frankly, I’m all in favor of Walker’s ruling being submitted publicly in the docket. It’s time we get to learn whether Bush’s warrantless wiretapping program was legal or not. 

But effectively, what is going on now is what the legislation on state secrets proposes: that a judge first determines whether a plaintiff has standing, and then determines how to move forward with a suit involving such classified information. There are almost certainly going to be fights going forward about these classification issues. But that hasn’t happened yet. Obama has threatened to escalate these issues regarding classification. But he hasn’t done so yet.

38 replies
  1. phred says:

    I was hoping you would write about this. Zachary Roth at TPM’s Muck had a piece on the WaPo article, but he didn’t seem to have a clue about the broader story. Sigh.

    So have you heard from bmaz yet? How’s the stake-out going? Does he need more doughnuts and coffee while he’s trapped in his car waiting on Walker? ; )

    Seriously though, it is taking much longer to hear back from Walker than I had expected. I hope it’s all about those pesky corrections, but I’m getting nervous that Walker may be waffling here…

    • emptywheel says:

      I suspect it’s about the pesky corrections.

      Remember, they submitted them in both the al-Haramain case AND the consolidated case (where Walker is deciding whether or not retroactive immunity is constitutional). So whatever decision he’s making in the al-Haramain case will have bearing on his consolidated ruling, as well. And I also suspect he’s wading through whether data mining can approach probable cause or not, and whether data mining is covered by FISA. In other words, I think he had to send his clerks back for a nice long review of different precedent again.

      • phred says:

        Thanks EW — I’ll be keeping my fingers crossed that Walker chooses to walk on the side of sunshine and light…

  2. ralphbon says:

    If there were an “escalation” about any decision that had already been made, then why would Obama’s DOJ be making sure Walker got everything he needed to do his review?

    IASNAL (I am SOOOO not a lawyer), but it seems to me that withholding information about the newly discovered inaccuracies in the Bush DOJ’s filings would be more than “escalation”; it would be an actionable violation of the Obama DOJ’s responsibilities as an officer of the court. No?

    • emptywheel says:

      You’re assuming the “inaccuracies” are newly discovered.

      I’ve argued that what the new statements do is correct some claims made on May 12, 2006. It’s just a guess, but three of the four people who submitted new declarations contributed to that earlier declaration about the program.

      Had Obama withheld that information, then one or all three of those three people might be in trouble for perjury (one of them may or may not be lawyers, though the other two are).

    • emptywheel says:

      Though to address you question more specifically, what all the crappy ass reporting on this case seems to think is going on is that Obama’s DOJ is threatening to take the wiretap log–the document al-Haramain once had–away from Walker. Some of the crappy ass reporting even suggests they have–implying Obama’s DOJ is preventing Walker from reviewing the document.

      Obviously, the fact that they gave him more to review proves that the latter misconception is wrong.

      But I think it’s these classified declarations that Obama is really worried about; in fact, I think that’s one of many reasons Bush’s DOJ submitted inaccurate information in the first place. If they were trying to hide parts of the wiretap program–specifically the way they used datamining to pick targets and then used illegally collected information in legal proceedings–then they may have lied about how they started wiretapping al-Haramain in the first place. And they may have done so thinking that their statements were going to be released in Oregan years ago (there was a newspaper suing to get access at the time).

      So now they’ve submitted what might be a complete description of the program, but that makes them more panicked about what they claim to believe is a terrorist organization receiving the description of the program.

  3. Stephen says:

    Thanks Mrs. EW for keeping issues up to date and for taking valuable time to recap and review matters so that I can personally understand many of the ins and outs. This is my favorite site for that reason as well as all the very intelligent posts from people well beyond my league but who are very understanding. Now that I’m addicted, time has come to send in a donation. SE

  4. drational says:

    The WaPo article also misled the timing of Government’s quest to get the log back, which is another layer of intracacy you would hope a National Reporter would be aware of:

    “Soon after the materials were sent, FBI agents raced to collect the sensitive pages.”

    It took them several weeks to come get them, and it’s not all that clear how they figured out they had been sent- possibly by wiretaps on the lawyers they sent them to….

    • BillE says:

      Is that a good thing?

      I thought Kris had some other problems like being a coauthor on something bad???? sorry no links, I just seem to be remembering something from the month ago al-Haramin thread which linked Kris to somebody else in the Bush DOJ who was involved in the bad stuff.

      • emptywheel says:

        Are you thinking of the OLC memo addressed to him from John Yoo?

        Don’t worry about that. That was Kris making sure you could use intell information collected legally through FISA for law enforcement. Kris was not read into the illegal program, and when asked for help justifying it after the fact was quite clear they had broken the law.

      • bmaz says:

        Or are you thinking of the surveillance treatise he co-authored with Doug Wilson, which is actually a pretty fine go to reference material? Kris is nowhere near as progressive as most of the people here, he is simply more of a law and order prosecutor type than a bleeding heart civil libertarian. That said, he is reputed to be a pretty straight up guy, and is the best we are going to get in such a position, so confirmation is a good thing I think.

  5. MichaelDG says:

    Ho Hum.

    Civil liberties advocates are accusing the Obama administration of forsaking

    The only “advocate” quoted is Eriwn Chemerinsky. And he doesn’t mention any campaign pledges being “forsaken” for crying out loud, as my grandma used to say.
    “Some people” say… journalism.

  6. oldtree says:

    sorry to go off topic a bit, but Mueller is out propagandizing for the patriot act? What does it take for Obama to fire these paranoid losers from the government all America wanted replaced?

    • ralphbon says:

      Don’t forget Mueller came on board during Clinton. But since I’m sick of holdover Bushies and Clintonites, I’m right there with you.

  7. ratfood says:

    Another swing and a miss!

    Gotta give credit where it’s due, WaPo has the most consistent batting average in the big league.

  8. Mary says:

    I agree with your criticisms of the article, but on this point:

    …if it were true that Obama were “escalating” a “standoff” about state secrets, then he would have appealed the 9th Circuit decision

    I don’t think that is truly applicable. Generally in a lawsuit, you have to wait until the whole thing is over and then on your appeal you raise every point, including all the rulings and orders where the trial court ruled against you.

    However, sometimes that trial court’s ruling has such significant impact on severable matters that the party on the wrong side of the ruling can try to take an “interlocutory” appeal. Here, that’s what happened in respect of Walker’s ruling on the motion to dismiss/state’s secret/FISA trumping issue. Walker and the 9th both went along with that certification for interlocutory appeal, but the way the 9th issued their ruling, it was no longer a severable matter for interlocutory appeal on its own IMO. Even with a certified matter, you only get one appeal (the one they took to the 9th circuit) as a matter of right and further appeal to the Sup Ct would require a grant of cert from the S.Ct. However, what the 9th did was basically bounce things back to Walker for him to take an action. Gov isn’t in an aggrieved status, isn’t in a place “ripe” for even an interlocutory appeal to be pursued, until Walker does rule.

    So, for example, if Walker agrees with Gov that the defense lawyers are to be excluded and things can’t go forward, then depending on loose ends that might still need to be tied and the overall aspect of the public info – well, basically you are at a final order stage. While Gov wouldn’t be all that aggrieved, it could still take up the 9th’s ruling that Walker had the right to make the determination (even though he made it in their favor) at that point – the point of issuance of final orders.

    If Walker does agree to give access, that won’t be in the nature of a final order, but it would almost definitely be certifiable for appeal and on that appeal – if the 9th rules in favor of Gov (that Walker should not have provided access or allowed things to go further after his review) then the appellate decision is basically a final order and at that point Gov, while it won on the issue access, could still roll the dice and risk asking for cert on the issue of whether Walker should have had the authorization to review or not. If the 9th rules against Gov and says Walker is ok-fine to give access/let the case proceed, THEN you are at the point where the interlocutory appeal request to the S. Ct for cert is ripe, imo.

    Could go either way – but definitely a much better case for ripeness on an interlocutory order’s appeal if there is a component where there is an order actually requiring dissemination that DOJ is opposing vs. only a Cir Ct order that the Dist Ct can review evidence and decide whether the case should go forward or not. fwiw.

    • emptywheel says:

      Fair enough.

      But my point is that they’ve made it very clear that what is bothering them going forward–the reason they would take their classified toys and go home–is Walker’s potential ruling that he gets to decide what the lawyers see. It’s a different issue of law. So if Obama WERE escalating anything right now, it would be that issue.

  9. i4u2bi says:

    Sumbooty better gid outta town before dusk, or is it dawn…or is it rounded up at dusk and strung up at dawn? Me likey the latter.

  10. Mary says:

    23 – I agree with your point, so I almost didn’t go into the rest, but I thought since interlocutories are a different creature that maybe I should just for a future reference purpose.

    Re: 11 – not only do I think that they weren’t “newly discovered” I don’t really think that the change in administrations had an effect. I think what cause the hairball coughing was that the lawyers involved realized that Walker was likely to figure out from what he reviewed that he had been fibbed to, so they were trying to foreswear his action. That really seems to be the only time any DOJ lawyers do the right thing or tell the truth, when they think a judge is about to come down on them, personally, and they can’t hide behind the curtain.

  11. Mary says:

    24 – I think William O has some more expanded reasons for not being a Kris supporter, but I have to say I thought he was one of the most effective communicators and was both smart and a straight shooter. I don’t agree with some of his approach, but he didn’t seem (not that I know more than his writings and testimony and public actions after “teh program” was written up) to ooze sleaze and I have to say, most of even the so-called “heroes” at DOJ have seemed to openly ooze sleaze to me.

  12. robspierre says:

    I haven’t been much in the mood for apologizing for Mr. Obama lately. But I sense some dithering and stalling for time around the whole wire-tapping scandal. Maybe it is just that Obama is afraid that people will see what a dupe he was when he voted for it. But I wonder.

    Is it possible that the Obama administration’s positions in this case are based at least in part on fear of what they don’t yet know about the illegal wire tapping? fear that Bush-Cheyney have left landmines all over with their usual casual disregard for national/public interest?

    The need to correct previous submissions might suggest that relevant documentation is inconsistent, hidden from the new administration, or missing. Perhaps Obama’s people are trying to assess the situation but keep finding stuff hidden in this or that neglected burn bag or forgotten archive tape. They wonder what else may turn up.

    So it occurs to me that the administration may fear that possibly legitimate secrets may have been compromised carelessly and in passing when the Bush-Cheyney monster created this program. We’ve seen how easily they cast aside Ms. Plame’s cover and, in all likelihood, anti-nuclear proliferation networks just to hurt her husband for writing an article. Perhaps the administration fears that discovery will reveal intelligence capabilities or ongoning operations that should never have been entangled with an illegal, politically driven witch hunt.

    What could this secret be? I can imagine possibilities. Perhaps discovery might reveal that the NSA has cracked all current encryption using quantum computers. Or perhaps Cheyney called our super-duper-top-secret mole in Al Qaeda on an open line to ask if al-Haramain was the bad guy’s local representative–perhaps Cheyney sent the mole’s name and number to AIPAC in an email. Or perhaps Obama’s people just fear something like this might lie in a mass of material they haven’t yet sifted.

    If so, I’d still be disappointed in Mr. Obama. He should have the gumption to do the right thing and face the consequences. But I’d at least like to think that there was some less than nefarious explanation for his positions on this.

  13. slouching says:

    Good thing he didn’t let them ask a question in the presser. They’d only misreport his answer. He should keep on mixing it up and ignore these corporate spokespersons.

  14. JohnLopresti says:

    Part of what goes with establishment liberalism might appear to bear a taint of plain vanilla cronyism. Which is to say, I think some folks are testing the mettle of the leadership, how much misdirection and obfuscation might be required to preserve some lawless slush channels. With those possibilities in mind, I am reading an ostensibly revealing deposition EAC took from a former expert in topologies like the Q circuit that dazed Babak. The transcript’s veneer is that of discussing an evote machine vendor’s factory in VZ, or some such, as I read what is intercalated in the text. Additionally, since the furor in congress over Calea, although, it seems I recall one flavor of the E411 chip has a broadcast module which reserves a few teeth in the pulsetrain for portable equipment driveby oldfashioned wiretap. My guess is some SgtFriday stuff like that is one of the nuisances in the alHaramain case, the methods part of the sources. But also the bailiwick issues longstanding, posing the question just how far a political apointee department head might wish to travel in bringing some sunlight to the programs which necessitated the court maneuvering and the latter’s continuity from the prior to current administration.

  15. WilliamOckham says:

    My problem with Kris is his blogging on balkinization. At one level we should be happy that somebody like Kris would blog. OTOH, I believe that he was deliberately dishonest about basic facts relating to FISA.I would have extended an assumption of ignorance to anybody else, but Kris literally wrote the book (the only comprensive book) on national security law. His distortions came at a critical time in the debate and allowed people who should know better to give the Bushies the benefit of the doubt on FISA.

  16. orionATL says:

    but WHY?

    why does the washington post feel the need to do an incomplete (if not incompetent) article on this issue? is the “incompleteness” deliberate?

    why does the judge (walker) patiently tolerate such game playing from the u.s government’s lawyers (yeah, i could have said “doj lawyers”, but i wanted to make the point that these folks purport to represent me and my fellow citizens though that hey emphatically do not with this line of lawyerly sophistry).

    why such judicial patience with evident (government) lawyerly lying? (i am reminded of the microsoft case.)

    why has judge walker been farting around about decisions on this case for many weeks now? is he lining up support among his peers?

    why does the obama administration persist in pursuing the state’ secret approach when it is intellectually and morally bankrupt in terms of the thrust of the american constitution – the individual is to be protected by law from the depredations of an authoritarian state? the whole point of the bill-of-rights portion (amendments to) of the constitution is a focus on protecting the individual – particularly an individual with a divergent political viewpoint – from a government of malign intent.

    why is there no evident, remediating concern for the well-being of the individual human who is at the center of this controversy?

    • bmaz says:

      I got no answers except as to Walker. In fairness to him, he has been deliberate and calculated from the outset and has managed, by doing so, to think and act two of three steps ahead of the government’s perfidy avery time. The case would not still be alive but for Walker’s efforts in boxing them in in this regard. Till shown otherwise, he has earned at least my benefit of the doubt. And I can avow that the plaintiffs’ attorneys in al-Haramain and the consolidated cases agree wholeheartedly.

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