On the al-Haramain Decision

Thanks to bmaz for sitting in a crappy rental car in SF for the last month and a half waiting for Vaughn Walker to make a peep. As he reported, Walker has ordered the government and the al-Haramain team to figure out a way to move forward with the litigation.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits.

Frankly, that order is largely a punt. The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work. He could have just ordered them to follow that approach, but did not.

But here are the two aspects of the order that are not a punt. First, Walker makes it clear he has read all the documents submitted in this case.

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.”

And he has said, clearly, that it’s time to get this litigation moving.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

In other words, Walker has said, "I’ve read the secret evidence in this case and now I want you guys to figure out how to move foward with this case."

Which pretty much implies that, having read the evidence, Walker believes it will move forward. Unless I’m misreading these tea-leaves (which I doubt, because the tea-leaves have been reading the same way since well before January), Walker is prepared to rule that al-Haramain is an aggrieved party. Meaning, Walker is convinced the government wiretapped al-Haramain illegally.

Not a surprise, in the least, but it’s nice we’re finally getting around to this.

So why the punt, and why the delay?

First, a wildarsed guess. I think the delay may have related to the third of the related warrantless wiretap cases before Walker. You’ll recall the filing submitted two weeks ago, once again making expansive claims of privacy and claiming the government is immune from suit.  Well, given the way all these cases interlock, I suspect Walker may have wanted everything in his hands, so he was sure he could move forward on all three in a sensible fashion. So, he gets the last filing on April 3, works through how all three cases work together, and now we get today’s punt.

So why the punt? Why now?

Partly, I think Walker is giving the government one more chance to be reasonable in an attempt to avoid appeals further down the road (and note–he makes it clear those appeals will take place further down the road).

But he’s also called the government’s bluff. Last we heard in this case, after all, the government was squawking like Cheney, threatening to come take its documents away if Walker tried to give them to al-Haramain.  But what’s it going to do now, if Walker has his ruling on the merits all but written now? Take Walker’s rulings away? Take his notes? In other words, Walker has read the documents–documents that likely impact not just this suit, but also the other suits against the government. And the government can’t take his review of those documents away at this point. 

So we may not have a ruling until after May 8. And we–since we’re not cleared–may not get to see Walker’s ruling, in this case. But I’m guessing we’ll see reflections of it in the two other suits currently pending before Walker. 

13 replies
  1. MadDog says:

    …Partly, I think Walker is giving the government one more chance to be reasonable in an attempt to avoid appeals further down the road (and note–he makes it clear those appeals will take place further down the road)…

    Not that this dot is connected, but one could hope that AG Holder’s reference in his Katie “But I’m A Cheerleader!” Couric interview to do the following:

    Couric: Having said that, do you believe the state secrets doctrine was abused by the Bush administration?

    Holder: Well, I’m in the process of looking – that is being reviewed now. And so, I’ll see what the result of that – review is. And as I said, try to share the results of that review with the American people.

    Couric: What’s your gut though?

    Holder: Well, I don’t know. On the basis of the two, three cases that we’ve had to review so far – I think that the invocation of the doctrine was correct. We – we reversed – are in the process of looking at one case. But I think we’re likely to reverse it.

    I can hope, can’t I? *g*

    • emptywheel says:

      Yeah but it’d be futile hope. He surely has reviewed this already.

      Of course, now that FISA is back under scrutiny, I’m sure the BS they’re pulling will be met with even less sympathy in the courts.

      Incidentally, have you seen this on the FBI spyware? Looks like the kind of think you and William Ockham might find enlightening. It really is pretty stunning that they’ve released all that via FOIA, but are still withholding a lot of this FISA stuff.

  2. Peterr says:

    My WAG: having watched all the back-and-forth over FISA and such, Walker is bound and determined not to give anyone cause to overturn any of his actions. ”We’re going to do this by the book, with i’s dotted and t’s crossed — but from what I have read, the govt is screwed. But I’ll give the govt every opportunity to convince me otherwise. Go ahead . . . tell me more.”

    Shorter me: Walker is using the legal principle of ”give them enough rope . . .”

  3. Loo Hoo. says:

    It’s starting to look like Obama is using the courts to force his hand to do the right things.

    He’s using the people (Cuban Americans) to do the right things.

    He’s using legislators to do the right things (stimulus package).

    These are pretty smart moves, politically.

    Next thing you know, he’ll be using treaties to ban assault rifles. And using the people and legislators to decriminalize marijuana.

  4. LabDancer says:

    Ms ew: assuming your line of reasoning is correct, then would you also surmise that Judge Walker has devised what he sees as an acceptable solution to the government’s $55 trillion problem?

    If so, I’d have a hard time accepting Judge Walker came up with such all on his lonesome — which might go some way to explaining the appearance of delay. There’s nothing wrong with a judge consulting her or his colleagues on potential solutions to difficult problems; indeed, court-going lawyer types know from experience that some of the time some of those who are judges incline to fishing for ideas among some in the lawyer pool.

  5. Mary says:

    OT – from Petrocelli in Eli’s thread on torture, this link:

    British intelligence prosecution fear over US torture memos

    Asked whether the Prime Minister intended to stop any possible prosecution of intelligence officers in the case of Binyam Mohamed, in the light of President Obama’s decision not to allow CIA officers to be prosecuted, No 10 referred the question to the Home Office. A spokesman there said: “This case has been handed to the Metropolitan Police and is a matter for them and for the Crown Prosecution Service.”
    …intelligence services – and the Armed Forces – must observe the Geneva Conventions and the laws of armed conflict. Hooding, sleep deprivation, excessive noise, refusing food and water – all are banned.

    • watercarrier4diogenes says:

      From the comments on YouTube under O’Donnell’s phone interview of Whitehouse:

      It’s like saying, “Linda Kasabian, you’re free to go, and no, you don’t need to testify against Charlie Manson.”

      Also, this popped up on DailyKos yesterday:

      Remember Lynndie England?

      As recently as DoD’s sham Abu Ghraib coverup trials, Obama’s “just following orders” defense was deemed bullshit.

  6. WilliamOckham says:

    Dang, I have to write a technology strategy and an acquisitions strategy for my employers this weekend. I’ll have to look at the FBI spyware stuff later. At first glance, it doesn’t surprise me much. The technology behind it looks to be old hat and the idea that it would get overused by the FBI is, well, shocking the Capt. Renault sense only.

    My comment on Judge Walker is to paraphrase Friedrich von Logau:

    Though the mills of Justice grind slowly, yet they grind exceeding fine;
    Though with patience Judge Walker stands waiting, with exactness grinds Walker all.

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