Vaughn Walker’s Chess Game: The Cases

I know we joke (and usually mock) the notion that Obama is playing 11 dimensional chess with all the active court cases of late. But I believe Vaughn Walker, the judge overseeing all the warrantless wiretapping cases, really is playing chess. All of the relevant cases have been consolidated under him (though there are two related cases, which I’ll get to), and in the process, he has gotten pretty damn fed up with the government’s attempt to game the system, and partly as a result (and mostly because it is right in terms of law), he appears to be consciously working through all the suits together with an eye toward some kind of justice in the case.

In this post, I’m going to lay out the many factors at play here–the four cases (broadly defined) before Walker, two other related cases, and the IG report. In two follow-up posts, I’ll explain where I think this will go from here. 

Al-Haramain:  The Islamic charity once had a wiretap log showing allegedly illegal wiretaps from 2004, yet the government has promised to appeal any order that it make that–or other materials–available to litigate the suit. In response, Judge Walker has directed plaintiffs to submit a motion for summary judgment, with a hearing scheduled September 1; the parties are working on a briefing schedule now.

Retroactive Immunity Challenge: Electronic Frontier Foundation and other groups challenged the constitutionality of Congress’ grant of retroactive immunity to the telecoms under FISA Amendments Act. Yesterday, Walker dismissed the challenge, finding that Congress had explicitly directed the Attorney General that he could certify the telecoms to receive immunity. Significantly, Walker invoked the legislative record of FAA to support both his ruling that the law did not violate the Constitution and his finding that "plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities." In addition, Walker recalled that Navy v. Egan allows Congress to limit the executive branch’s control of national security issues, including classification–but that it had specifically allowed the executive to keep the AG certifications secret here. The plaintiffs have said they will appeal, and given Walker’s comment that, "the lack of a charge to the Attorney General [specifically directing the Attorney General to undertake review and to submit to the court the specified certifications] remains a problem," they are sure to focus on their argument that Congress abdicated its own rule-making authority to the Attorney General.  In addition, Walker has dismissed this suit without prejudice, suggesting that if plaintiffs can amend their complaint to cover telecom wiretapping not covered by the immunity granted by FAA, they are welcome to do so; significantly, Walker reminds plaintiffs that immunity only covers wiretapping that happened between September 11, 2001 and January 7, 2007.

Jewel: In September, some of the plaintiffs that had sued the telecoms filed a new suit against Bush and the government agencies that had undertaken the warrantless wiretapping. The government has argued that it is immune from suit in this case, but the plaintiffs have pointed to the same legislative records that the government used in the warrantless wiretap challenge (and which Walker cited in his ruling) to show that Congress specifically intended to reserve the ability to sue the government and its officials. Walker has not ruled on this suit yet. [Update: see EFF’s latest opposition to the govt’s motion to dismiss, plus an EFF declaration, thanks to MadDog] The hearing on the govt’s motion to dismiss will be July 15.

State Cases: Also yesterday, Judge Walker dismissed a set of state investigations into the warrantless wiretapping, based on a provision of the FAA that reads, "No State shall have authority to … conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community." I’m not in the least surprised these got dismissed as the language in FAA on this topic was pretty clear.

As I suggested, there are a few more things that may affect Walker’s calculus–or the plaintiff’s ability to make their cases–going forward.

Jeppesen: In 2007, the 9th Circuit ruled that "(1) whether Al-Haramain was subject to surveillance and (2) the Sealed Document wiretap log and information on whether al-Haramain was wiretapped" were properly invoked state secrets. But in April, the 9th Circuit ruled in a suit brought against a Boeing subsidiary involved in extraordinary renditions that "the government must assert the privilege with respect to secret evidence (not classified information)." Not only might this affect al-Haramain going foward (in that the four new declarations submitted this year were not reviewed by the 9th when it mades its prior ruling), but it is particularly relevant to the Jewel case. In the invocation of state secrets in that case, Dennis Blair claimed state secrets covered, 

Information concerning the specific nature of the al-Qaeda terrorist threat

Information that may tend to confirm or deny whether the plaintiffs have been subject to any alleged NSA intelligence activity

Any information concerning NSA intelligence activities, sources, or methods that may relate to or be necessary to litigate plaintiffs’ allegations

Information concerning the scope of the now inoperative "Terrorist Surveillance Program"

Information concerning whether or not the NSA obtained from telecommunications companies such as AT&T communication transactional records

Information that may tend to confirm or deny whether AT&T … has provided assistance to the NSA

Information, information, information, information, information, and more information–but no discussion of discrete evidence, not even of Mark Klein’s reports of a tap into the Folsom street AT&T circuits (nor of Russell Tice’s public reporting that has been made public more recently). 

Pete Seda Criminal Case: In addition, there is a very narrowly drawn criminal case targeting Pete Seda and Soliman al-Buthe, who were affiliated with al-Haramain before it went defunct. This is sort of an Al Capone case–an attempt to get two people targeted for completely different reasons under a narrow tax issue. And, surely by design, the entire case is built around dates that don’t implicate the illegal wiretapping of al-Haramain: the most recent date in the indictment is October 16, 2001–just two weeks after the first memos relating to the illegal wiretap program and after the "freebie" 15-day FISA window expired after the AUMF. It’s totally conceivable that the government included al-Haramain in its first batch of illegal wiretapping, but the timing is dicey. Nevertheless, Seda’s lawyer is pushing for discovery of things that might implicate illegal wiretapping, including:

  • [Relating to a request for emails] "other communication it has obtained from other means that are also exculpatory"
  • Any information gathered regarding AHIF, AHIF-US, Pirouz Sedaghaty [Pete Seda], or Soliman Al Buthe pursuant to any National Security Letters or the Foreign Intelligence Surveillance Act [the discovery request notes this might have been collected "otherwise" than NSLs or FISA]
  • Notice and all information regarding when the investigation against AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe began 
  • Any and all bank records relating to AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe; specifically Bank of America account number
    2880311561
  • Any and all records or notes relating to any telephone numbers held by AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe
  • Any and all records, documents, notes, regarding any internet provider, including but not limited to, Unicom, as relative to AHIF, AHIF-US. Pirouz Sedaghaty, or Soliman Al Buthe

There’s more that would implicate illegal wiretapping as well. The government says it doesn’t have to turn this stuff over because it’s not part of its case in chief (which of course was designed to avoid dependence on the warrantless wiretapping, but Seda’s lawyer argues it would exculpatory (not least, presumably, because the whole case might be poisoned fruit).

The IG Report: And there’s one more legal item that might play into how things roll out–the IG Report on the illegal wiretap program, mandated to be completed next month. Frankly, I absolutely expect the IGs to miss their deadline. I absolutely expect there to be a big squabble over how much of the report will be unclassified (though it is supposed to be presumptively unclassified) and how long it’ll take for us to actually get it. And I question how effective some of the IGs will be. But if you look at the scope of the IG Report–as reported back in November–you can see that some of this information might well be pertinent both to al-Haramain and to the Jewel suit, at a minimum. 

So, in summary, here’s where we are:

  • Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
  • The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
  • The hearing in Jewel scheduled for July 15
  • The state cases dismissed pretty definitively
  • The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewel
  • Any discovery action in the Seda case
  • The legally required IG report on warrantless wiretapping due (ha!) next month
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28 replies
  1. Jkat says:

    re: the retroactive immunity .. bullet point #2 .. that date January 7..2007 ??

    i don’t understand … ?? date typo ??

    • emptywheel says:

      Remember there were several phases of warrantless wiretapping:

      October 2001 to January 7, 2007: Illegal program with some awareness of head FISA judge but not review from FISA

      January 7, 2007 to August 2007: Wiretapping with some FISA review

      August 2007 to July 2008 (with PAA orders extending a year): Protect America Act

      July 2008 to present: FISA Amendment Act

      When they did immunity, they did it only through January 7, 2007–through the point when the FISA court started reviewing the program. I’ll have more in later posts on what I think Walker might be after. But the thing to remember for now is that there’s a window from January 7, 2007 to August of that year when there is no immunity for telecoms, and immunity for telecoms after that has some guidelines as well.

    • bmaz says:

      That should read:

      … plus a possible refiling for telecom actions (probably) based on conduct occurring after January 7, 2007.

      That is a threshold end date for the ability to claim retroactive immunity under the statute by the telcos.

  2. Jkat says:

    yeah bmaz .. thanks to you too .. AAMOF .. thanks to both of ya’s for all the legal beagle work y’all put into these posts ..

    • Leen says:

      Yes thanks

      ew “and in the process, he has gotten pretty damn fed up with the government’s attempt to game the system, and partly as a result (and mostly because it is right in terms of law), he appears to be consciously working through all the suits together with an eye toward some kind of justice in the case.”

      “some kind of justice”
      really jumps out at ya

  3. fatster says:

    The September 1st date set by Judge Walker just might be enough time for the IG report to be released (however abbreviated it may be, at least initially). Is that a reasonable assumption? Another great article, EW. Many thnx.

    • emptywheel says:

      The IG report–once we get it–will have some doozies in it. At a minimum, we’ll get the Glenn Fine part of the report (and I do expect that to be on time, but I expect it to need a serious classification review). A lot of THAT will pertain to OLC opinions. But it’ll also talk about how the FBI used it, which might bear directly on al-H’s suit.

    • freepatriot says:

      hey, RD, this is O-T, but I just got some encouraging information from a poster at politico

      It’s just a matter of time before everyone in New York state moves South anyway. No one that I know is even remotely concerned about the inevitable demise of New York, and California too for that matter. I just hope they don’t move to Florida – we have enough carpetbagging scoundrels here already.

      so, uhm, are you moving ???

      I kinda hope this guy is right

      if everybody is moving out of California, I’ll have the place all to myself

      unless you an Ms Rd are stickin around (then we’re gonna have to work out a schedule for who gets to use Yosemite on what day, stuff like that …)

      lookin forward to hearin from you, hope you’re leavin with everybody else …

      (wink)

      • randiego says:

        Uh, dude… I’m staying, but I’m sure we can work something out. Oh your Yosemite/Sequoia days, I’ll take Rincon and/or Malibu that day. Depends on the swell direction.

  4. freepatriot says:

    so what, the time line thingy isn’t enough ???

    now you’re compiling comprehensive lists an stuff ???

    if ya ever think of developing a normal hobby, let me know

    I think I can talk ya out of it

    (wink)

    do you have any idea how hard it is for the repuglitarded to keep coming up with new lies each day

    all because of YOU, an yer timelines, an lists, an facts an stuff

  5. behindthefall says:

    I don’t know what the NYT is going to be charging for the Sunday edition, seeing that they want $2 on weekdays — that price makes sense only in the middle of Manhattan, or maybe Tokyo. But this post could be a cover article for the Sunday Magazine section, and it would make the paper worth the price. Mind if I print out this post?

    • Funnydiva2002 says:

      $2 a pop, buddy! You know where the donation linky is!
      *wink*
      You’re right, btw. WTF is the Gray Lady thinking? Oh. Wait. Nemmermine!

      FWDiva

  6. BayStateLibrul says:

    Will the five states (Maine, Vermont, Connecticut, New Jersey, and
    Missouri) have an appeal option, or does the “no state 803 Section”
    send then to the showers?
    Seems like a ripe “State Rights” issue…

    • phred says:

      That’s a really good point BSL. Part of our whole check and balance system is supposed to include balance between state and federal power. It certainly seems to me that the federal government over time has curtailed the ability of the states to challenge the authority of the federal government. Sometimes that seems like a good thing (during the civils rights battles of the 1950s and 1960s), but the downside appears to be Congress’ ability to just decide that states do not have the right to challenge illegal conduct by the federal government. Seems to me that that shouldn’t pass Constitutional muster, but perhaps precedent has led us so far down the road of an omnipotent federal government, that the states really don’t have the legal authority to push back against the feds.

  7. Leen says:

    ew/all
    have you seen this?

    Bush FBI sent 18 armored agents to search my house, wiretap whisteblower says By John Byrne

    Published: June 5, 2009
    Updated 38 minutes ago
    The Bush Administration’s FBI sent 18 agents in body armor to the home of a man who revealed details of the National Security Agency’s warrantless wiretapping program, according to a little-noticed account of the whistleblower published Thursday.

    Thomas Tamm, a former Justice Department lawyer in the Office of Intelligence Policy and Review, revealed details of the wiretapping program to the New York Times in 2004. In 2007, FBI agents raided his Potomac, Maryland home.
    http://rawstory.com/08/news/20…..ower-says/
    http://www.wired.com/threatlevel/2009/06/5954/

  8. victoria2dc says:

    bmaz, you say:

    That should read:

    … plus a possible refiling for telecom actions (probably) based on conduct occurring after January 7, 2007.

    That is a threshold end date for the ability to claim retroactive immunity under the statute by the telcos.

    But what about Bush and the other White House “deciders”… are they immune forever or what?

    Thanks!

  9. bmaz says:

    …[the discovery request notes this might have been collected “otherwise” than NSLs or FISA]

    Heh heh, ya think? They were hiding too much, and too criminal, activity; there was bound to be a colossal intersection of hell for the government somewhere in all its own mess. al-Haramain is that intersection.

  10. bmaz says:

    Seda’s lawyer argues it would exculpatory (not least, presumably, because the whole case might be poisoned fruit).

    There appears to me to be more than a sufficient prima facie case for infirmity of the warrant and that Seda is entitled to the ability to go behind it. All of this information is germane to exactly that.

    • freepatriot says:

      Dog Town ??? POP, Venice ???

      Ghetto by the Sea ???

      he’ll never make it …

      here’s a deal, RD, you could have everything south of steamer lane

      but all our Mavericks are belongs to me

      an you an Ms RD can have teh desert, but don let me catch you sniffin round my Humbolt county farm mkay ???

      (wink)

  11. timbo says:

    Another area of interest in the State Cases, legally, is whether that precludes plaintiffs from determining if information was sold on the gray markets about telco clients to 3rd parties not involved in federal intelligence gathering. I think this is an area that has been greatly overlooked, although some evidence of a criminal enterprise in this area was mentioned a few years back…if that did happen, this area of preventing states from finding out about the extent of the criminal enterprises SPRINGING FROM the illegal and un-Constitutional abuse of powers, by setting up an the electronic infrastructure by the intelligence community, making it much easier to gather info on phone numbers and to make wiretaps “under the radar” for other criminal and illegal purposes is truly a major scandal. Alas, with individual states precluded from following that angle, we may never know whether or not that did occur…although it seems to…there are a handful of investigations undertaken at the state level that showed that this might have been going on. And that’s my alleged (for now) political hot potato, where actual rule of law hypocrites on the right and in the center are concerned.

    • Funnydiva2002 says:

      Hi, Timbo!
      Have you met Perris? Timbo, Perris. Perris, Timbo. I think you have much in common to discuss in your concerns about “grey market” sales of illegally gathered information. I also think you have a valid “angle” for getting at why this whole info-sucking activity is so bad–and how to frame it so that Corporatists pay attention.
      Cheers.
      FunnyWheelieDiva

  12. Funnydiva2002 says:

    Wow, EW!
    Thanks for this!

    I’m sure everyone here has already donated to the EmptyWheel Organic Blogging endowment. But, just in case, consider this a gentle suggestion/reminder.

    FunnyWheelieDiva

  13. x174 says:

    still kickin’ ass, eh, mt? knowing the state of corrupt corporate culture in amerikka, i’d be surprised if any big biznesses are held accountable for anything. but it’d be nice to know if there is any speck of justice left in the good ol’ U ASS of A

Comments are closed.