Did Holder Know About the “Significant Misconduct” When DOJ Claimed Sovereign Immunity?

On April 3, DOJ submitted a filing that argued that no citizen had the ability to sue if she had been wrongly wiretapped under Bush’s illegal wiretap program. The government, DOJ claimed, had sovereign immunity that protected it from such suits.

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States.

Today, just 11 days later, we learn that,

As part of [presumably Glenn Fine’s  Inspector General] investigation [into the warrantless wiretap program], a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

So when Eric Holder’s DOJ made expansive claims arguing that no one could sue federal employees for being wrongly wiretapped under Bush’s illegal program, did he know this revelation from Glenn Fine’s investigation into the wiretapping program? When DOJ claimed sovreign immunity, were they thinking not so much of the Jewel plaintiffs, whose claim was focused on the dragnet collection of US person data, but of the Americans targeted in what Glenn Fine’s office considers "significant misconduct"?

Because if Holder did know (and the timing suggests it is quite likely he did), it makes those cynical claims of sovereign immunity all the more disturbing.

Fine’s investigation will contribute to the larger FAA-mandated Inspector General’s for which there is a presumption of openness. In other words, even if this hadn’t been leaked now, in April, it is supposed to be published in unclassified form in July. At that time, it seems, a lot more people are going to have a concrete basis for which to sue under FISA.

And potentially knowing those lawsuits were coming, Holder’s DOJ crafted their bogus sovereign immunity claim.

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58 replies
  1. behindthefall says:

    So, if they were running an non-filtering vacuum on, say, approximately everybody, then if wrongfully wiretapped people could sue, then about 99+% of the population of this country could sue this government?

    Ouch. You can almost understand why the gov’t would like to avoid having to take those kinds of lumps.

    Can you imagine the total damages to pay out?

    • emptywheel says:

      I think the point here is that some people were tapped (that is, content of conversations collected) without even Bush’s standard of cause.

      So there’s the underlying question of the hoovering, but this says that once they hoovered they actually wiretapped people who even Bush could make no claim to reasonably wiretap.

      • bmaz says:

        They have done this with every fucking modality they have that they can find a way around strict oversight by the FISC for (and simply lied to the FISC on others). Remember the NSL flap? It is always the same thing. With a centralized government, it will always so be. That is why the Fourth Amendment was crafted in the manner it was. But Congress, with a giant assist from putative President Obama, gutted the Fourth. Well, here is what you get.. It is what you will always get when the supervision is placed in the hands of the government/executive and it’s officers and agents.

        • JimWhite says:

          find a way around

          That’s what to me was so insidious about the Bush creeps. They spent inordinate amounts of energy to get massive new powers and weakened oversight only to turn around and completely ignore even the token restrictions that remained in place. Were they so stupid that they thought it would never come out or just that uncaring about the law?

          Now to have Holder coming along to be Mukasey II in sweeping it all under the rug is enough for me to blow a gasket. If they withhold or significantly redact the torture memos today I’ll be on blood pressure medication before the end of the month…

          • WilliamOckham says:

            It’s a fatal error to assume stupidity in Cheney’s approach to expanding executive power. He and his crew planned this power grab very carefully. They only involved Congress when they needed to implicate them as complicit in the abrogation of our international obligations (e.g. the Geneva Conventions). They deliberately made secret claims of expansive executive power to manipulate what they saw as a recalcitrant bureaucracy and court system. They used the fear and anger caused by 9/11 to stampede people in to setting up systems that clearly illegal and unconstitutional. More importantly (and this is what can only be described as evil genius), they ensured that these systems completely replaced the prior existing systems and were designed in such a way that there were technical, practical, and organizational barriers that made it impossible to operate them in a way that was legal and constitutional. Cheney ensured that when (and I think he and Addington knew it was when and not if) their ridiculous legal theories were rejected, the illegalities would be so pervasive that our political, legal, and constitutional structures would be incapable of dealing with them. Furthermore, no future President would be able to reverse course before becoming complicit in the law-breaking because bringing an end to the torture and wiretapping immediately would blind him, create a revolt in the intelligence services, infuriate our allies, and cause a political firestorm.

            I’m not trying to justify Obama’s actions on state secrets or failure to address to the torture issue, but he’s in a difficult situation. Cheney pulled off what was, in effect, a coup and nobody noticed. Our failure as a polity to notice this created a very complicated situation. Obama’s failure to fully grasp the magnitude of Cheney’s perfidy has made it even worse. Today is an important day. The choice that Obama makes on releasing the additional torture memos will be a signpost of what’s to come. If the relevant details are redacted, I have little hope that our constitution will ever be meaningful. I suspect (for reasons completely unrelated to this) that we are entering a period of what will be essentially one party rule. With no legal or political restraints, we’ll be at the mercy of whoever whens the Dem presidential nomination.

            • wavpeac says:

              It seems that we need a coordinated response to this…if not from the Obama administration, from the people.

            • robspierre says:

              I agree about the coup. I do not agree that Mr. Obama’s position is any more difficult than he has chosen to make it.

              This is one of those Gordian knot situations that only seems complicated because you are agreeing that untying is the only solution. Mr. Obama needs to cut through the complexity with a nice, simple, legal sword. Ruthless, chips-falling-where-they-may prosecution is the way to go, with draconian punishments for the powerful and leniency for the weak who testify against them.

              I don’t believe that the intelligence services will be in revolt. The Bushista coup depended on factionalizing military and security forces, generally by preferring the dangerously inept (Foggo) and the mercenary (Intelligence Field Activity, Titan, etc) to the career professionals. The current let-bygones-be-bygones policy continues the marginalization and demoralization of the professionals. They need–and, I think, want–to see the chickens come home to roost, the sweetheart contracts cancelled, and the honor of their profession restored. They thought they had lost by obeying the rules rather than the orders. We need to show them otherwise.

              The same argument applies across the board, to all of our abused and shamed institutions. Retired generals should be recalled to the colors and collaborationist officers should be sacked and court martialled. Allies that collaborated rendition and secret dungeons should be pitilessly exposed. Books should be audited, names named, and careers and reputations ruined.

              In short, examples have to be made.

              Examples have to be made to encourage those that held out and put obedience to the law above obedience to the executive. The administration needs to vindicate the professional intelligence analysts. It can do that by exposing the torturers and illegal wiretappers in open court and sentencing them to long imprisonment. It needs to reestablish discipline and respect for military codes of conduct. It can do that with court martials. It needs to to vindicate those that chose the law over orders from above by punishing those that gave the oreders. It needs to restore our reputation in the world. It can do that with all of the above.

              Examples have to be made for the very reasons that apologists say they should not be. If we punish an intelligence agent (or contractor) for obeyng orders and committing crimes, then agents (and contractors) will be second-guessing their superiors and questioning orders. Exactly. No more Good Germans. If we publicly expose a foreign country that housed a secret prison after expressly promising not to do so, the argument goes, no country will agree to so accomodate us in the future. Precisely. Set the precedent and treat intergovernmental agreements like military orders: illegal ones give you noprotection and are not binding on law-abiding, successor governments.

              This is how we undo the evil tangled hairball that Cheyney thinks he has stuck us with.

              Cheyney et al plotted a coup. They largely succeeded (so far). But that does not mean that they are all that smart. What they have done can be undone if we–and our President–have the will to do it. It does indeed get harder the longer we wait. But only because we thus give ourselves longer to convince ourselves that we re helpless.

      • behindthefall says:

        The wiretap-ees are a subclass of the hoover-ees, but that subclass may have been improperly, even sloppily, defined; is that it? And if it was sloppy enough, then if it’s not 99% of the U.S. population who might have a reason to sue the government (if that were permitted), still, the decimal point might not move all that many places to the left — even 0.099% of the population is still a heck of a lot of people.

        (What’s the biggest class action suit ever?)

  2. BillE says:

    Lets see Panetta had to take guys like Kappes as his deputies. Obama has a briefer who is likely in the thick of it. Holder looks to be looking out for the shadow gang as well, why? Do they have something on him? Or is he a part of it?

  3. LabDancer says:

    Problem:

    ew: “a lot more people are going to have a concrete basis for which to sue under FISA”

    Significance of Problem:

    behindthefall: “then about 99+% of the population of this country could sue this government?”

    Solutions: Alternative #1:

    The Obama administration directs the Treasury Department to arrange for the sending out of 350 million individual payments, each in a sum determined by multiplying $1000 by the number of days the “President’s Program” has been in full force.

    Upside: Stimulus

    Assuming for the sake of illustration the PP has been in force for 4 years, that’s 350 million checks each in the sum of $1,865,000. Par-tey!

    Suck on THAT, Paul Krugman!

    Downside: The Bubble to End All Bubbles

    On the same assumptions and illustration, that’s a total of just 50 billion shy of $56 trillion — or approximately 4 times typical annual U.S. GDP over the last decade — or approximately 100% of typical global annual GDP over the same period.

    Unh … any others?

  4. DeadLast says:

    Well, Holder probably knows the the US Army Corps of Engineers is going to lose $800+ billion in the New Orleans Katrina lawsuit that starts next week, and the Treasury/Fed is running out of paper on which to print money, he probably is trying to save a few billion in case Wall Street could use it. Holder is just another pragmatic politician doing his the peoples’ business.

  5. freepatriot says:

    and did anybody hear that lushbo limpballs promoted the Pirates off the coast of Somolia ???

    they’re now a “merchant marine organization”

    According to lushbo

    I knew they should form a union, but somebody should warn the pirates about lushbo’s little “Habits”

    they could find a better union organizer

  6. Mary says:

    5 “who even Bush could make no claim to wiretap”

    I think this is just a matter of being caught vs. doing things differently or going further. I think that’s why Gonzales et al were always so careful to talk in limiting language about “the program the president has acknowledged” etc. – bc while he was talking about his “al-Qaeda calling” program the real underlying program involved all kinds of interceptions and targeting that involved Americans and purely domestic communications as well. The difference now IMO isn’t that they are suddenly doing things that “even Bush” didn’t claim to be able to do, but rather that they were caught doing what they do, which involved now and under Bush more than what Bush admitted.

    fwiw.

  7. Mary says:

    ew – to your specific post question, I think he pretty clearly did. I noted this part of the story in your other post, but when they talk about the illegal wholly domestic surveillance of Americans in America by NSA, apparently Holder was pretty interested in his own liability, especially as he went to FISCt to get renewals and in part had to think about the court’s orders as well as the statutes:

    Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

    emph added

    The only thing that gets even mild attention from any of the lawyers in DOJ is having a court come down on them, personally. Holder is same old, same old in that regard.

    • emptywheel says:

      Mary

      Can I get some clarification on your answer, because I think it elides two different revelations.

      1) The “significant misconduct” in the title refers to something uncovered by Glenn Fine during his investigation of the warrantless wiretap program. While I don’t know the scope of that investigation, it has been referred to a strictly historical investigation–that is, stuff that happened before 2006 or at the latest early 2007. The reference to the Congressman in 2005-6 certainly reinforces that.

      2) And then there is the collection of US person data post FAA. This is the only stuff that we KNOW Holder knows from the story and the only stuff that is connected with his visit to FISC. I’m actually rather curious about the timing–FAA was passed in July, so a 6 month certification might have fallen in January (and we know this review started under Bush). Or, even giving it a month, it would suggest that Holder was due to visit FISC in February but then delayed to “fix” the problems, and we’re now finding out about it in April.

      3) Now to the question of whether Holder knows of the “significant misconduct” from the title. I’d say he does–but that’s not clear, given that DOJ IG is not DOJ OPR (that is, it does retain some autonomy) and Fine has been pretty good at guarding that independence. But the fact that this was leaked suggests there may have been a referral and the folks doing the referral wanted to make sure it got some close attention.

      But since the timing on the FISC review has nothign to do with teh timing on the DOJ IG discovery, we can’t say for sure when Holder learned of it.

      It is still likely it was more than 11 days ago, but we don’t in fact know that.

      As to your assertion that Holder is not going to risk his own ass–I agree with that comment, though I’d say he’s got much more of that self-preservation than Mukasey, and Gonzales had. Comey and Ashcroft had that, yes. But having an AG who has it is a slight improvement.

      One mroe point, which I will elaborate in a post. THe “accidental” targeting of US persons is, to a great extent, legal. Feingold tried repeatedly to pass amendments requiring them to make sure they weren’t using US person data. In particular, he tried to force them to segregate (but not throw out) US person data if, after they collected it, they discovered it was US person. He tried to make it illegal for them to use it. Both those amendments failed.

      So while Holder can’t (couldn’t) certify that this was US person data, that doesn’t mean NSA can’t use it.

      • Nell says:

        it would suggest that Holder was due to visit FISC in February but then delayed to “fix” the problems, and we’re now finding out about it in April.

        Much more likely, since Holder only took office in early February.

  8. OldCoastie says:

    this morning’s local news had a brief report stating that “the DOJ says the wiretapping program has been brought into compliance”… seemed like an odd little announcement in the midst of traffic reports and how to save money on make up and shampoo.

    apparently the important propaganda message for today…

  9. Mary says:

    15 – I’m with you until this part:

    Our failure as a polity to notice this created a very complicated situation. Obama’s failure to fully grasp the magnitude of Cheney’s perfidy has made it even worse.

    I think a lot of people have and had and did notice the complex problems being created and have talked about them – similarly, I just don’t buy that Obama failed to fully grasp what was going on and how big a problem it would be. I think he understood perfectly. The carefulness of most of his speech during campaign vis a vis specifics (despite his rhetorical passages on the rule of law, he always carefully said things like he was not going to give Constitutional protections to terrorist and his camp’s statements after his FISA Fiasco, esp Greg Craig’s statements, were so deliberately off target on the legislation that showed that they really did understand the problems and were just ducking) anyway, that carefulness sure indicated to me some knowledge and awareness and prior determination to go along.

    It’s been starkly obvious for a long time, all the big and nasty issues that addressing all of this raises. I just don’t buy Obama as a naive bumpkin not quite “getting it”

    • WilliamOckham says:

      Let me clarify. I partly agree with you. I don’t think Obama is naive at all. If anything, I think Cheney played him by using Obama’s intellectual sophistication and self-confidence as part of the trap. I suspected at the time of Obama’s flip-flop on FISA that he’d recieved a briefing from which he concluded that if the FAA didn’t pass, he’d become President and be faced with continuing a blatantly illegal (and probably unconstitutional) program or being forced to effectively shutdown the entire NSA. If the FAA passed, he believed he would be able to fix the constitutional issues over time. What he didn’t anticipate (and neither did I) was that the point of the FAA wasn’t really to make the program legal. It was just to get Democrats to commit to the idea that widespread eavesdropping was a good thing. Cheney intended all along to leave as much executive lawbreaking in place as he could. Breaking the law was a feature for him, not a bug. He never took Yoo’s opinions seriously. He just wanted other people to think they were serious. How else would you get folks like Marty Lederman and Jack Balkin (not to mention Holder, Craig, Panetta, et. al.) to entertain the idea that you can’t prosecute torturers? How else would get a weasel like George Tenet to loose the CIA hounds? How else would you get the FBI to accept the notion that the NSA was taking over internal survelliance without any restrictions?

      So Cheney gets Obama thinking that with this one little compromise over FISA he’ll be able to roll back Cheney’s policies and stay clean. Meanwhile, Cheney knows that the whole FAA business was just kabuki theatre. People think he did it to get the FISCt off his back, but he never cared about them. This whole thing worked because he made very sure that none of the technical people at NSA understood the legal issues and none of the legal or political types understood the technical issues. The only real risk Cheney ran was a leak from the FBI where there are people who knew about the program and knew that it was massive and illegal. Whereas NSA leakers are preemptively thought of as traitors, FBI types get instant cred from the media.

  10. ezdidit says:

    What a crock! Look, we know BCCI was a CIA front bank in Pakistan since 1972. And we know the Bushes were in on it from the get-go. Obama should order them and CIA there on a special ‘nation-saving mission.’ They’re in bed with SIS anyway – may as well do the deed and get it over with…merger now!

  11. BoxTurtle says:

    OT: Hey FREEP! What kinda turtle you need advice about? I’ve successfuly raised most of the common ones. I’ll be lurking about today, if you got an email you don’t mind sharing we can keep the noise of the blog.

    Boxturtle (Never store turtle food on windowsill. Ant eggs inside may hatch)

  12. emptywheel says:

    Note, FAA required AG to submit certification not later than 30 days, so August 10, 2008, which would make 6 months Feburary 10, 2008, so 8 days after Holder was confirmed.

  13. Mary says:

    22 – you are right, if you are limiting the question to did he know about the pre-Obama administration “serious misconduct” in the report. I was referring to his more self interested knowledge of misconduct during the Obama administration that might have made those allegeations of immunity even more cynical. Bc the reference to Holder only going to the court for renewal of the program after safeguards reads to me as if there was a delay, that they realized somethings about the program were either/both not in compliance with the statutes or not in compliance with FISCt orders and had to be fixed/remedied before his certifications to the court would be truthful.

    So to me it reads like there are problems that have been there (including the serious misconduct issues revealed in the historical review) and nothing was done to address those serious misconduct issues (which apparently arose even after the post-Hospital show down “fixes” to the program that I never really thought were fixes to the program as much as more CYA for the DOJ in their FISCt applicaations). As a result, the same kinds of things that could/did generate those issues might have still been around when Obama took office.

    If so, then the sovereign immunity issue has an overlay of possible knowledge of serious misconduct (and I think he did have to know about that to know that there were issues that had to be fixed and to make sure the article affirmed that he ONLY signed off with FISCt AFTER program fixes were in place – how would he know that if he didn’t know about the prior problems?) But it also has an overlay of there being some kind of gap period during the time Obama took office and Holder being confirmed and signing off with the court for renewal of the court supervised aspect of the program, where thatt sign off took place “only after new safeguards” were put in place, that certainly makes it sound like there was a non-compliant period where the “new safeguards” were not in place during the Obama administration. That’s probably my cynical side reading this and you can make it mean other things as well, but that cynical side also finds the assertions of immunity to have a different layer to them if they are being used to cover up access to illegal operation of the program during the first part of Obama’s administration as well. fwiw.

    • emptywheel says:

      Okay Mary, here’s the chronology, as we know it.

      Holder is confirmed on February 2, 2009.

      The 6-month certification is due on or around February 10, 2009.

      David Kris, the new appointee who can come up to speed quickest on this, is confirmed on March 25, 2009.

      So Holder came in and learned right away (presumably at almost the same time as he was first fully read into the program) that he could not certify that the program was legal.

      He held off certifying it until he could truthfully (he claims) to comply.

      You’re suggesting the 8 day overlap there somehow incriminates Holder.

      Furthermore, you’re suggesting that Holder made a statement in a suit pertaining to pre-2007 wiretapping that was governed primarily by FISA based on his 8-day incrimination regarding the out of compliance program governed by FAA in which the wiretap was for the most part legal (up to the point of certification–remember, COngress refused to prohibit using US person data if it was collected “accidentally,” so the only control on US person data is AG cert).

      Given the fact that–per the wording of the law, no one can sue for the stuff that happened in that 8 day window–I don’t much think that 8 day window is the motivating factor behind Holder’s actions.

      • bmaz says:

        Can’t speak for Mary, but I do not believe the sovereign immunity assertion in Jewel is necessarily particularly motivated by “overcollection” on Obama’s watch (or Holder’s for the brief period you describe). Rather I think they want to protect the past and don’t find all of this nearly as problematic as we do. They want the power, therefore they assert it.

        • DWBartoo says:

          “… they want to protect the past and don’t find all of this nearly as problematic as we do. They want the power, therefore they assert it.”

          You have succinctly described the difference between those who want, really “want” (must have!), unlimited power and the rest of us who are, reasonably enough, suspicious of those who want such power.

          Perhaps, as as species, we are too ready to accept, tolerate or endorse the ‘ambitions’ of those who should never be allowed such vast powers?

          One would think that a brief perusal of our collective recorded history over the last few thousand years would at least suggest that some consideration should be given to that question.

          But, I guess that wouldn’t be ‘fair’, somehow, to the ‘best and brightest’ among us.

  14. Mary says:

    22 – keep in mind that the article specifically talks about not just compliance with law, but with court orders. I would not be at all surprised if the FISCt has issues with some of the legislation and has put in some orders to protect the validity of surveillance orders it issues in the event that some of the FAA is striken as unconstituational. Provided anyone ever gets standing. Over to Walker.

  15. Mary says:

    Per TPM, we can all breath easy now bc Feinstein will be having a hearing.

    That’s good. After all, it’s not like she was one of the people briefed in on the program who then went and reassured all the members of Congress who were not briefed in, leaving Feingold twisting in the wind by himself.

  16. Mary says:

    OT – but since I haven’t been having lots of positive things to say about Obama’s admin, I will say that I think this is a good thing.

    He’s getting rid of a Pentagon office that was nominally for “support to public diplomacy” but was being used to “organize information operations” that ended up being internal in many aspects and which were not transparent or accurate in many others. “Because of the history of the office, we needed a fresh start…”

    American military officers in Afghanistan in particular were angered last year by sets of “talking points” provided by the office for use in responding to queries on matters like civilian casualties. Officers who received the talking points predicted that the information would be seen by the Afghan public as blatant propaganda, and they refused to use them.

  17. perris says:

    So, when Eric Holder’s DOJ made expansive claims arguing that no one could sue federal employees for being wrongly wiretapped under Bush’s illegal program

    it’s a rediculous claim, who the HELL does he think the fourth amendment is written to guard us against?

    depraved is the only word that comes to mind

  18. TomR says:

    —-
    Did Holder Know About the “Significant Misconduct” When DOJ Claimed Sovereign Immunity?
    —-

    The other day, Thom Hartmann was talking to Scott Horton and raised the point that “We the People” are the sovereign and wondered how a former professor of Constitutional law could forget such a basic fact.

    Horton didn’t have an answer. So, I guess DOJ is pushing for us all to have immunity. Care to commit a crime?

    – Tom

  19. Mary says:

    32 – Well, for what I was getting at, the applicable chronology would be when Obama was sworn in, not when Holder was confirmed, but I’m not sure I know what you mean with this: “You’re suggesting the 8 day overlap there somehow incriminates Holder.”

    Incriminates him for what?

    What I was saying, not just suggesting, is that if the program was not operating in compliance with law during Obama’s administration as well as during Bush’s administration, then the allegtions as to sovereign immunity that were proferred in Jewel would have a benefit for this administration and the violations during its term (that it is presumably going to come clean about)as well as violations during Bush’s term. I won’t claim what his motivator for the arguments is, one way or another – I don’t know what they are, I just know what the result is.

    What I think you can view as a claim by me of a motivator of action (and I’ll ante up to this one readily) has to do with the action of withholding the certification to the court and my opinion that the motivator for that (and as a result for the coming clean on the fact that the NSA was operating in non-compliance with law AND court orders) was the fact that he was worried that the court would find out about the non-compliance otherwise and didn’t want his butt on the line as fibbing to the court at that point. That’s the action/motivator connection I see.

    I don’t know the motivators for the Jewel arguments – there I’m just saying that the arguments that protect Bush will also, if adopted by the court, protect the Obama administration. That seems pretty clear.

    Not that it means much, but the overlap period wouldn’t be necessarily 8 days, it would be until the problem was fixed.

    I’m not sure what Kris would have to do with it, unless you are thinking that Holder needed to utilize his expertises to get the program into compliance with law. I would agree that Kris would be helpful in that role, but I’m not sure I understand what it has to do with the existing violations during Obama’s administration, if any. A good faith effort to fix the problem – is that what you are getting at? Bc I am just looking at the violations and rights and causes of action and what the claim of immunity does for them. I guess maybe you are getting into affirmative defenses?

    In any event, all the “unintentional” language for both the older violations and the recent violation is worded to try to keep a defense that the interceptions and likely uses and misuses will not be deemed to be “wilful” under the sections that require that (1810 doesn’t)

    So I’m not sure I follow this:

    Furthermore, you’re suggesting that Holder made a statement in a suit pertaining to pre-2007 wiretapping that was governed primarily by FISA based on his 8-day incrimination regarding the out of compliance program governed by FAA in which the wiretap was for the most part legal (up to the point of certification–remember, COngress refused to prohibit using US person data if it was collected “accidentally,” so the only control on US person data is AG cert).

    What statement? I’m talking about the arguments in the Jewel case and the holding off on certifications to the FISCt bc of non-compliance. Is there some other statement or do you mean the arguments in the Jewel case – I am confused.

    Given the fact that–per the wording of the law, no one can sue for the stuff that happened in that 8 day window–I don’t much think that 8 day window is the motivating factor behind Holder’s actions.

    Again, I think you may be looking at longer than 8 days vis a vis the effect of non-compliance with the law and the Obama adminsitration. It would be from when Obama came into office until the problem was fixed and there are also causes of action for violation of FISCt orders which seem to be included in what Holder was concerned about in his sign off, at least to the extent the story specifically refers to both law and court orders. I’m also not sure we know enough to know whether what is at issue involves something that could be, or could not be, subject to recovery. What was done with the info, what is the claim that it was only accidentally collected, did it get used for later FISCt applications, was that done in accordance with law (i.e., did they argue that they had “some” national security reason for the spying to start with and then went to get a FISCt order and now they are saying that there was no national security reason and it was all an accident but that means there were false statements given to the court, etc. – there could be a lot of different derivations of what has happened) It’s not a matter of “blame” it’s a matter of accrual of a cause of action.

    So on the motivation front – a) I dunno what the motivator for the arguments in Jewel were, b) I do know that the arguments would, if accepted, grant immunity to the more recent misconduct being alluded to have happened as well as the older Bush admin misconduct, c) I don’t think there is enough info to assign any kind of blame for the Obama admin misconduct to Obama or Holder, but d) I do think that the motivators for Holder to come clean with the FISCt about it and to dig in and try to address it quickly was the fact that his own butt would be on the line for the certifications and I trend towards believing that there were also some FISCt order violations involved from the nature of the language used in the article.

    I’m also wondering if this may give some insight in the filing with Walker about previous misstatements to the court. There might also be an aspect that, if the problems are just now being fixed, Walker may have been receiving some additional information as things have gone on, especially for his ruling (not in Jewel) about the may/shall aspects and governance of the AG’s certifications to the courts for dismissal of lawsuits.

    • cbl2 says:

      I usually wait until I’ve heard from ya’ll before I respond to this stuff – but I have an adrenaline and BP spike from reading Holder’s ’statement’

      Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

      The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

      To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

      “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.

  20. cbl2 says:

    have y’all covered this as well ?

    In a statement from President Obama, the administration announced that it would release four of the Bush Justice Department memos justifying harsh interrogation techniques that had been sought in an ACLU lawsuit.

    and Holder’s statement at my 42 above is also in the link

    link

  21. cboldt says:

    Bush’s DOJ made a sovereign immunity claim in March 2008. See FN 6 in the recent Motion in the Jewell case. I don’t assign any CYA between the Jewell Motion and the recent NYT story on surveillance.

  22. cbl2 says:

    a tantalizing morsel . . .

    There is very little redaction, or blacking out, of detail in the memos, the officials said

  23. LS says:

    I had a dream…a man who used to be VP of the most influential country in the world….and his lawyers….they are in a box and somebody is unleashing insects into the box…oh..but that is just a silly thought…who on earth would do anything revoltingly like that. Oh yeah.

  24. rwcole says:

    No one fucks with the CIA- I think that’s the message here. It may also be that Holder will find it necessary to investigate some of those who ordered this shit- and wants to assure the CIA that it won’t include THEM.

  25. ericbrewer says:

    By the way, the “sovereign immunity” argument in Jewel is ludicrously fraudulent, as I explain near the end of this post (scroll down in IE).

    In its April 3 brief, the DOJ took the phrase “person or entity, other than the United States” from sections of the Electronic Communications Privacy Act that describe penalties for violations of the law by persons or entities other than the United States (e.g., state or local governments). A different section of the law describes penalties for violations of the law BY the United States.

  26. timbo says:

    Yeah, the Good Germans analogy is apropos here. Basically, by failing to curtail the criminality, we become guilty in its commission. A sad day for the Republic…

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