A Funny Thing Happened On The Way To al-Haramain Justice
As you will recall, there was an important hearing in the Northern District of California District Court (NDCA), Judge Vaughn Walker presiding, on June 3. There were significant briefs from both the plaintiffs al-Haramain and the defendant government filed a few days before the hearing. As MadDog pointed out, Judge Walker has subsequently issued a briefing order on June 5 making more specific the lay of the land.
The reports from the hearing were that it was one for the ages and there were calls for a transcript. I now have one in my hot little hands. I am sorry, but I cannot post the entire transcript; they are the proprietary product of the individual court reporters, and the preparation of transcripts is a source of income to them. Court reporters have a difficult job and they are entitled to this protection, and I will respect it.
The foregoing having been said, this hearing was a rare thing; an amazing blend of seriousness and comedy presided over by a Judge both firmly in control of difficult proceedings and wielding a fine and dry sense of humor. In the passages that follow, the following will be the pertinent abbreviations: JW is Judge Vaughn Walker, JE is al-Haramain attorney Jon Eisenberg and TC is DOJ/Government’s attorney Anthony Coppolino.
[JW] Well, Counsel, I’ve read your papers and now have a much better sense of that old expression about ships passing in the night.
And this really is true, but it is not just the parties’ ships that are crossing in the night, the government is sailing blindly and willfully by the court too. Coppolino could literally have just held up a paddle every time he was to speak, like those golf course marshals, with the words "Same Old Shit Judge!" printed on it. He really is a broken record and is willing to do anything, including insulting the court’s intelligence, to get a ruling he can appeal immediately. Here is a prime example:
[TC] I think, you know, you talk about two ships passing in the night, and I certainly think that’s an apt description, I think we now have ships passing, again, in different directions, because the issue — the issue of standing and whether there is a genuine issue of fact and whether we could dispute their allegations of standing, of course, would turn on information we have, thus far, successfully protected, which goes to whether or not they have been subject to the alleged surveillance.
Well that about sums up the extreme and intentional duplicity of your United States Government in this whole mess from the get go, "…their allegations of standing, of course, would turn on information we have, thus far, successfully protected". No kidding. The government illegally surveils you, you have a right to sue them, and they frustrate that by hiding behind cheap tricks. Very admirable.
Coppolino, undeterred by the logic and patience of Judge Walker, holds up his "Same Old Shit" paddle again:
[TC] My concern is if you say, well, we are going to now litigate the issue of standing on summary judgment, again, Article 3 standing, but we are going to do it just on the public record, but the Government, if it wants to dispute Article 3 standing, and the only way it could do that, to prove a negative or to address whether or not they have standing, would be through the privileged information, that, again, puts us in the position of either disclosing the privileged information or losing, because we won’t do that, and then finding whether or not standing exists based on hypothetical facts such as the stuff they put in the record before.
Sorry Bubba, that dog ain’t gonna hunt no matter how many times you drag it out. The government screwed itself by not appealing Walker’s order long ago, both Walker and the 9th Circuit have said so, and yet they drone on. Walker must be very patient, and here he exhibits it:
[JW] We are not, Mr. Coppolino. I mean — I’m not against you having your crack at appellate review, but what you — what I am against is sending this case up to the Court of Appeals in a state where the Court of Appeals really cannot do its job and review these issues. And so, we need to bring this whole matter to a head so that the Court of Appeals, when it reviews the whole issue, can do so in a coherent and orderly fashion.
Coppolino, of course, waves the shit paddle again demanding to have the case sent for appeal, and then the court responds:
[JW] Well, you had a crack at an interlocutory appeal.
[TC] I have a few things to say about that, Your Honor.
(Laughter.)
[JW] Well, perhaps you should save that for the Court of Appeals.
(Laughter.)
[JW] I think you already had a crack at an interlocutory appeal. The Court of Appeals could have easily have taken that case in essentially the same posture that it’s in now. So, what I conclude from the fact that the Court of Appeals declined to take an interlocutory appeal, agreed that there was no final judgment, in addition, as Mr. Eisenberg pointed out, passed on the opportunity to issue a writ of mandate, that the Court of Appeals wants a case that has been concluded, at least to the degree that it can be, before deciding how it wishes to further review the matter. And I think what, essentially, Mr. Eisenberg has proposed is a sensible way to bring that issue to a head.
The last part of the foregoing is just beautiful, and is exactly right. The 9th Circuit had two different paths with which to take custody of the issue that Coppolino keeps whining about, and they refused both. And that is exactly what makes the persistent moaning and groaning by Coppolino and the government so pernicious. The 9th didn’t simply just consider that the case was not in a ripe posture for appeal, they could have taken the case on an extraordinary basis (writ) as an alternative. Could have if they materially disagreed with what Judge Walker was doing that is, and they quite clearly did not.
I bet you know what happens next, don’t you? Yep, Coppolino whips out his paddle of poop one more time and then deadpans as follows:
[TC] Well, you know, I don’t — I obviously don’t know the full implications of how what you are proposing would play out.
[JW] Well, I don’t either, but I suspect you would figure it out pretty soon.
(Laughter.)
[TC] As we, you know, walk down the road that you would propose, we will be able to brief and argue that and then present — I’m actually sort of presenting arguments as to why I think that course might not work. And, I can present those arguments, if you choose to go that route, but I do think if you ask the question, what is a simple, clear, effective way to get this teed up now, it would have been through certification. And, I think I had suggested certification in connection with our last summary judgment motion. And, it probably would have been briefed by now. And if — the clarity of the issues is apparent: Does FISA preempt the privilege, or are the plaintiffs entitled to access the classified information in order to adjudicate a case of this nature under those procedures? And that issue can be set up now. You don’t need to go to a summary judgment where the Government doesn’t have the benefit of actually being able to defend itself. That’s what the privilege was intended to avoid.
[JW] You know, you are underestimating your abilities, Mr. Coppolino.
You know, I am not sure if the sarcasm of that last by Walker comes across to those not experienced participants in complex hearings in Federal Court, but trust me, it is just dripping. And a beautiful thing.
Alright, the next passage is from Judge Walker speaking to Coppolino and is simply beautiful, both as to a summary of where we stand, how belligerent the government/Coppolino has been, and he ends it with one of the most classic cuts by a Federal Judge I have ever seen:
[JW] Well, I have some understanding, I think, and certainly some sympathy, for the position that you are in as an advocate. You’re adhering to your position with reference to the State Secrets Privilege; that’s fair enough. I don’t believe that that privilege is in play here for all the reasons that the preemption order described at some length. And what has occurred subsequently, is that the Government has essentially declined to join the battle on that field of battle, and that makes proceedings very difficult. And so, in order to bring the case to a coherent conclusion, which would permit effective appellate review, then I think we need to take this next step.
You talk about seriatim motions, of course, you filed a good many motions yourself, Mr. Coppolino, as you well know, but think of the position that we would be in if I were to certify an interlocutory appeal and either the Court of Appeals were not to take that interlocutory appeal, and, after all they do, under 92(b) have to agree to take it, or, if it were to go up to the Court of Appeals and they were to find that the issues had not been sufficiently teed up at the trial court, and send it back. And here we would be, another year or two, or Lord knows how long thereafter, and we wouldn’t be any further along.
This is a lawsuit; it’s not a career, Mr. Coppolino.
Well, if you couldn’t easily detect Judge Walker’s view of all this before, methinks you won’t have any mistake here. Ouch, now that’s gonna leave a mark. And a well deserved one too I might add.
Now you are probably wondering where in the world al-Haramain’s attorney Jon Eisenberg has been all this time. Just sitting back and taking it all in would be a real fair guess; his opponent was digging himself into a hole and the court was filling it in with dirt. But after Judge Walker’s line about Coppolino trying to turn the case into a lifetime long project, Eisenberg couldn’t help but chime in, which led to another absolute classic exchange:
[JE] Thank you, Your Honor. I’m reaching an age where I’m just starting to think about retirement.
[JW] Oh, my goodness gracious.
[JE] Well, just starting to think about it. It’s on the distant horizon.
[JW] Don’t leave me before this case is over, Mr. Eisenberg.
(Laughter.)
[JE] I don’t intend to. You see, that’s the whole point: I can’t retire until the case is over.
(Laughter.)
[JE] And I don’t want to be an octogenarian when that happens.
[JW] This could be an annuity, Mr. Eisenberg.
(Laughter.)
[JE] Only if I get paid, Your Honor, and that’s not happening.
At this point, the Court sets out where the case really stands as to how he sees the process going forward:
[JW] Well, I don’t think that that’s the way I intend to proceed with the second alternative, or the second scenario, unless the Government takes a position that I must review the sealed document. And if I do, as I said, it will be subject to a — it will be disclosed to you subject to a protective order, or, alternatively, submits other classified information in response to your motion. But the content of the sealed document will not be a part of the Court’s decision on this motion in the event that — or except under the two scenarios that I outlined.
[JE] Your Honor, I find myself in the very odd and uncomfortable position of saying I’m perfectly fine with that approach as long as we get a finding of standing.
(Laughter.)
[JW] Well, you’ve got a motion to write, Mr. Eisenberg.
If you will recall back when we got the first reports from the hearing, everyone seemed unclear as to whether or not Judge Walker was going to review the "sealed document" (i.e. surveillance log) in considering the motion for summary judgment. It is the next passage that caused that confusion:
[JE] Okay. I’m fully prepared to proceed that way with Your Honor understanding that my preference is to be able to refer to the secret document. And, I mention that only for purposes of preserving the point for appellate review, which I hope will never be necessary.
[JW] Well, what do you mean "make reference to the sealed document"?
[JE] Well, what we would like to do is just say, Your Honor, here is the public evidence we have; you have seen the sealed document now; we do not need further access to the document to argue our case. We are prepared to go forward making our further arguments only on the public evidence and with Your Honor having reviewed and considered the sealed document. That’s what we propose to do. My feeling from the January 5th order was that — that’s the scenario I envisioned: We do not at this point feel we want or need access to the document. And when I say that, I mean either to see it again — remember, we’ve seen it — or to argue about it.
[JW] All right. Well, then — then you don’t need to see it unless something further is filed that requires its disclosure.
[JE] I’m sorry?
[JW] Unless some additional information is disclosed which requires that the sealed document be disclosed to you, you’re telling me you don’t need to see it.
[JE] Yes.
[JW] That’s fine.
[JE] I understand your ruling, Your Honor. Thank you.
Now here’s the thing, despite Jon Eisenberg saying "I understand your ruling", I am not so sure that is really totally true. I have read the transcript a couple of times now, and I am not totally clear on whether or not Judge Walker will refer to the "sealed document" or not. It appears that he will not unless the government resorts to the "sealed document" or other classified/sealed material in their response to Eisenberg’s motion for summary judgment. However, that presupposes that Walker can find standing without resort to inclusion of the "sealed document"; what if he suddenly decides that the sealed document is necessary to the finding of standing? My best guess is he then treats it the same as if the government had raised it, and he rules it disclosed under a protective order.
On the other hand, that is not totally clear, Walker also indicated that he may change his mind. And there is one glaring reason he may do so, if he discloses under the protective order, he instantly creates an immediately appealable order, something he desperately does not want to do. So there is at least a remote possibility he simply takes judicial notice of his prior review of the "sealed document", uses that to find standing and/or liability and does not disclose it under the protective order. It is hard to tell and, quite frankly, I am not sure even Walker knows for sure.
Thus the confusion, or at least semblance thereof. Now, there is one last passage from the hearing I want to relate, and that is effectively the summation by Eisenberg of what the weight and meaning of his coming motion for summary judgment will be:
[JE] Now, will our motion for summary judgment look just like what we filed previously, as Mr. Coppolino mentioned? The answer to that is most certainly no. We’ll be arguing liability and specifically issues including the legality of the warrantless surveillance program, the president’s power or not to disregard an act of Congress in the name of National Security. We will be arguing the merits of this case. Mr. Coppolino says, well, that’s going to require a consideration of classified information, and my response to that is, it didn’t require a consideration of classified evidence when the Government presented its case to the public in a 42-page white paper in January of 2007. There is no — it is a purely legal issue we are looking to litigate. This Court needs no further classified evidence to decide the purely legal issue whether the president has the expansive power that President Bush and now President Obama are claiming.
[JW] All right.
For those that have been asking what impact the possible ruling by Judge Walker on this motion for summary judgment, assuming he finds in favor of the plaintiffs, could have on the cases by the other consolidated plaintiffs against the Bush (now Obama) Administration, you start to get a hint here. "We’ll be arguing liability and specifically issues including the legality of the warrantless surveillance program, the president’s power or not to disregard an act of Congress in the name of National Security. We will be arguing the merits of this case." I could not say it better than that. This, if it gets indeed entered (still a long way to go on that though), would be a judgment on the merits.
A judgment on the merits could pose a nightmare situation for the government, because once entered, it might be argued as binding on all the other cases currently pending before Walker (what I commonly refer to as the "consolidated cases") through a doctrine known as collateral estoppel. Do not get me wrong, and do not do any Snoopy happy dances, because this is far from a given. In fact, if you had to bet, the smart money would be that it does not get applied. That said, the mere specter of the possibility would cause contemplation of hari kari by the government. As I have said before, they are currently boxed in between a rock and a very hard place. Couldn’t happen to a more deserving lot either.
So that is the long and short of what really happened in the June 3rd hearing in Judge Walker’s courtroom. And, as I mentioned at the beginning of this post, Judge Walker issued a briefing order detailing the path forward as a result of the hearing, take a look at it now that you have had a guided tour through the court proceeding. I am sorry I cannot post the transcript, but as I said before, that would be wrong; I love court reporters, they are some of the hardest working and nicest people you will find in and around trial courtrooms, and they deserve every penny they earn. If you have further questions, put them in comments and either I or Marcy will try to answer, if possible.
Judge Walker remembers his Bleak House, and its central character, a lawsuit that lasted for generations:
Mr. Coppolino remembers it, too, but as a model for his defense, not as an exemplar of greed, waste and systemic dysfunction. His and his bosses’ goal is not self enrichment, but the protection of their client from the consequences of a fair and open resolution of the case. Interminable litigation, no matter how costly, is preferable to resolution. In resolution, there are facts, causes and consequences, and liability. In today’s beltway democracy, as in the careers of our top corporate executives, such things are anathema to success.
I recall reading a piece in TIME in the 1960s reporting on a strong candidate for the case Dickens used to model the one in Bleak House [or maybe one of them]: a challenge to a will involving a large estate in India, ongoing for forty or so years when Bleak House was first published, and as I say destined to go on another hundred, decades even beyond the last days of the British Empire’s Raj, because the case was saddled with the House of Lords Privy Council as the highest appeal court to finally resolve the large number of contentious issues that kept cropping up.
The TIME reporter was relying on quotes from some Brit barrister, first that the latest appeal was being abandoned because it’d been “rendered moot” by recent discovery that the estate had been completely depleted:
“no doubt in some part owing to” having to pay all the legal bills,
and my favorite part, in answer to what this might mean for the lawsuit:
“I would hazard that this same condition might foreclose further proceedings touching on the estate”.
A while back I was involved in this case where there was a preliminary challenge on standing. Sometimes it’s possible to hear all the evidence while reserving on standing. The claimant argued this was one of those times: the parties had entered into a binding agreement to admit all evidence except for the testimony of: the claimant, a single expert witness for the claimant, and a single witness for the challenger who happened to be an expert but also had direct involvement with the claimant; all of which the parties agreed would take a week to present.
The challenger moved to restrict the hearing to getting to a ruling on standing, arguing the week for evidence could be “saved” if the ruling was against. The claimant countered the stuff that was going to take up that week — being the only evidence NOT agreed to — was the ONLY evidence relevant to standing, arguing what the challenger really wanted was two kicks at the cat:
if the ruling went the challenger’s way, the claimant would appeal;
if the ruling went against the challenger, the challenger could — and the only sense underlying its approach meant it inevitably would — proceed to try to overcome the ruling by appeal before the case returned for a ‘final’ ruling on the rest of it –
meaning that if the challenger’s motion was granted, instead of a possible “wasted week” or so of hearing [that wouldn’t be lost in any reality world way — given it was going to have to be used to deal with the issue of standing anyway] the claim would be unnecessarily delayed a further year.
So the challenger countered with it not being fair to finger it for any “contingent delay”, because no matter the ruling the losing side would appeal.
So the claimant countered with there being no equivalence in the two scenarios, or even really two scenarios, and to find otherwise meant at some point the case had morphed into a Monty Python skit.
Ever notice how Monty Python always struggled with ending one bit and segueing into another? Also ending any show?
Exactly how does one effect an orderly, leave aside graceful, exit from the I’d Like An Argument sketch?
‘This is silly: I wanted an argument; this is nothing but gain-saying.’
‘It’s never.’
collateral estoppel
This is legal jargon foriegn to some of us. What would prevent this from being applied other than the government holding its’ breath and stomping its’ feet? Or does it simply take the case in question going through all possible appealate review and judgement prior to application?
Oh, thank you Bmaz. Thank you very much for this post. Walker really is a piece of work isn’t he?
(how about that Jensson Button?)
Collateral estoppel
For instance, if Walker decides (as 9th Circuit precedent in this very case already demands) that FISA does provide standing for both civil and criminal penalties, and that the government engaged in wiretapping without a warrant (which is specifically prohibited), then the government cannot come back and claim that what they did was legal in other cases. They are left with their flimsy argument that FISA is unconstitutional, and when that fails, the floodgates open. The government will find it hard to defend against summary judgements in the other cases with the essential facts already proven. So once they lose, they keep on losing (which is why big companies fight so hard the very first time the are sued).
So bmaz, no one outside the executive is now interested in reviewing the log? Have the plaintiffs now forfeited their press to view (or have the judge review) the docs?
From where does standing come, then?
Standing
Since AH was stolen, locked, and essentially executed by the government, harm is easy to prove. What is harder to prove is that the government was the proximate cause and that what they did was not legal for the government to do at the time.
I understand; However I had assumed that access to the document was important to establish standing; so I am confused as to why it now seems the plaintiffs are no longer seeking to access the documents or have Judge Walker see them.
Judge Walker has seen it. I’m sure Bmaz will correct me if my layman’s description of what has transpired is a little off, but the short version is that Walker ruled that FISA trumps State Secrets and ordered the parties to come up with a way for the plaintiffs to see the document. The government strung the court along, but ultimately said, no way, let us appeal. Walker didn’t do anything that was appealable, so now he’s saying that if the government can’t reach an agreement to show the document to the plaintiffs, he’s just going to rule that the plaintiffs have standing because the government’s not playing by the rules. In effect, I think he’s saying to the government, “I’ve seen the document. It looks like the plaintiffs have standing. You have to prove they don’t have standing and if you refer to the document in any way, I’m ruling in their favor and letting them see it.” Sucks to be Coppolino right now.
Walker is either saying that or, alternatively, that he thinks there is enough evidence on the public record for him to find standing without even considering the sealed document. Either way, he appears ready to make a determination on standing.
I think it’s probably sucked for quite a while — it’s just becoming more obvious as the case moves closer to a ruling.
This excerpt does not sound like Judge Walker has seen the sealed document:
What is the evidence that the sealed document has been reviewed by the Judge?
Walker himself said so in his order dated April 17, 2009:
Link didn’t work, here is the URL for that
http://politics.theatlantic.co…..252017.pdf
Thanks. In this case I am confused by his later word choice, but trust all is well.
Heh heh, it IS confusing; that is why I said I thought even Eisenberg was fudging when he said he understood Walker perfectly.
unless the Government takes a position that I must review the sealed document
which might be the case in my ramble if Gov did try to respond to the SJ with an affidavit denying FISA felonies against plaintiff – that might put him in the position where he has to include a review of the Sealed Doc to determine veracity of such an affidavit and he might be saying that if Gov lies then the penalty really will be letting counsel have access to the doc and go where that goes on sanctions as well as original liabiity
or not
ordered the parties to come up with a way for the plaintiffs to see the document
I think he’s finessed that – I think he’s put in a posture that will be hard for gov to deal with on appeal bc he’s put it in a posture where plaintiffs can go on without the content of the sealed doc being “revealed” unless gov lies under penalty of perjury, but where gov to defeat the SJ will have to find someone say under, penalty of perjury, that there were no FISA felonies involving the plaintiffs and with Walker having judicial notice of all the sealed info as Gov is trying to make that filing.
That would put you in a really bad posture on appeal – if you were getting judgment against you bc you could not under oath deny that you’d committed FISA felonies that give rise to civil penalties
Then to go on to damages, Walker could order gov to provide sealed info to him on number of instances, etc. or the lawyers could cite damage to their practice or ask for legal fees which are being held in abeyance or there are a lot of other, some more creative, options.
And if by then you had telecoms with a final decision on immunity, they might be ordered to provide confirming information as to damages and their lawyers and the telecoms would then have duties (and liabilty) for truthful response independent of the duties they were given immunity for breachging.
Well, sucks if he’s defending a case he doesn’t believe in but is doing his lawyerly duty to defend to the best of his ability. If these arguments are the best he and his bosses can come up with, they are nothing but delaying tactics: up and down from Walker to the 9th Cir., and back again, like skipping rope; up and down with appeals to the Sup. Ct.
Any resolution other than a complete victory, defined as slamming shut the door to what actually occurred, is a total loss on several fronts. Hence, my reference to Dickens’ fictional interminable litigation.
It seems to have happened so long ago, and so far away…
Once upon a time the AH lawyers were given a copy of the “Sealed Document” (probably by the Treasury people). They were then asked to return it, which they did. Government then refused to give them back the document they already had. Walker ruled that information from the document could be entered into the record based upon the AH lawyers recollection if US did not produce document. Thus the information in the public record is the testimony of the AH lawyers as to what they saw, and Walker is likely to rule that this evidence is uncontested and uncontroverted by the US, thus no issue of standing. US is fighting just to fight, the fish is already in the boat.
That is not quite right. Walker ruled that the plaintiffs could go forward with information other than that contained in the document (and there is more than you think). At this point, what plaintiffs and their attorney’s know and saw of and from the document is classified as well still.
Thanks for the correction, bmaz!
This stuff does get awfully confusing after a while. Trust me, I have to go back and double check stuff, and still screw it up, all the time.
I enjoyed this entire post, it reads like a great novel I must say
anyway, I could use some clarification if you don”t mind, not on the post but on intentions of defendants;
doesn’t this make the entire excersize mute?
no matter what the denfendant is not going to support it’s position and they understand they will lose this case and take their chances with a differant judge (more on that later)
so what is the big stall?
judge walker knows this, has threatened a summary judgement and the defendant waits with baited breath, full well knowing they lose this episode and are prepared for the next
so what is the problem with awarding this case to the plaintiff?…I don’t understand the stall
now to get back to “take their chances with the next judge”
the defendant knows something, they know this will wind up on a sympathetic panel (roberts court) and they don’t want to waste any assets or time building a case that can then be micro examined
they are waiting for the roberts court where they will unload whatever it is they want to unload, roberts will look at this “new avenue of defense” and the court will obviously award state secrets
so, someone want to tell me why this judge doesn’t simply issue his summary judgement and move on?
how can walker prevent the scenario I just hypothesized and why bother if he cannot change that course of events
The only thing in doubt, as I read it, do Eisenberg and Goldberg have “Top Secret” clearance or not? Does the forward slash, all lower case, and lack of quotes in the judges order mean something? It seem cavalier, almost a nonchalant value placed on the demand. The key word is who, if declarative then hand over the shit – it shows ownership, I think. Understood as interrogative we don’t know if they are certified.
You tell me bmaz, is that how court works? After two years all we are waiting for is a stinking badge? Bring in the prop man, I’d need a union contract to work this gig.
I got a kick reading it in a Boy Scouts setting, where the accused has no excuse, alibi, or crutch to stand on, but keeps talking anyway. The script is weak, no the script is perfect for a chacacter delivered with the earnest sincerity of a Mark Twain huckster.
Are you saying all lawyers aspire to be regarded as well as a carpetbagger or XXX theater barker?
am I correct in this undertanding of the case defendants are making?;
“we can’t produce said documents because it makes the plaintiffs case, therefore they are by rote priviledged infromation”
is that their position in a nut shell?
here;
or are they simply saying that’s the position they are faced
even if they are correct, isn’t that the government’s usual fall back position or “no lo contendo”
Yeah, that’s one of the key passages, IMO.
Once things got around to briefing schedule, Tony Coppolino basically said, “well, I’m kind of busy at the beginning of AUgust and Eisenberg has to go first so, well, let’s do this in September. He was begging for as much time as he could get. So he’s going to try something else, I gather, or imagine himself hitting his head against a wall all summer.
But part of the way I understand the case is Walker backing them into a corner where they have to make that case even more explicitly: to make it clear that they only invoked state secrets to hide their own crime. In which case the 9th decides not the quesiton of “does FISA trump state secrets” but “does a violation of FISA trump state secrets” and as a corollary to that, “can the government invoke state secrets to hide a clear violation of law.”
Which might be waht Walker is talking about by getting this all ready for the 9th.
I’ve enjoyed this entire thread too; I am NAL, but that was a great summary, bmaz, and never fear — Judge Walker’s wry wisdom comes through very clearly, every time.
I’m not JW, nor TC but I would certainly like to see this case definitely resolved during my lifetime. Bmaz, I hope you are young and can stay with this until the end. I loved it.
bmaz,
You are a treasure and quite able to capture “the scene”. I have not laughed so much in quite a long time. The tragic elements of the case, the gov and their poop paddle (and making a lifetime career of it) and Eisenberg having fun with JW while staying the course for his client…you cannot make this “stuff” up.
You and Marcy must have had quite the laugh fest as you read through the transcript. And, I do not know which would be more “edutainment” being in the courtroom and listening to JW live, or listening to you and EW reading the transcript and watching your reactions. If this post is any reflection, I may select the latter!
Thank you for a cogent update on the case. My popcorn is quite ready for the next round!
(And I second Perris’ excellent question.)
“If you talk to God, you are praying, if God talks to you, you have
schizoprenia, if Judge Walker talks to you, you take a strong drink…?
Great “behind the curtain” story…
Thanks bmaz for creating such wonderful word pictures for all of us. I would have loved to have been at this hearing just to watch the facial expressions of all the players – the hapless Coppolino, the wry judge and the bemused Eisenberg. Judge Walker certainly sounds like he has a wonderful temperament. The back and forth in this transcript reminds me of one I read several years ago where David Boies and Dick Scruggs were trying to sue the HMO’s.
You don’t suppose there’s an audio version of this hearing, tucked away somewhere? Walker’s snark is priceless, and made me want more! He makes the writers for SNL, the late night talk shows, and TDS/Colbert look like pikers.
But on to more serious matters . . .
Re the sealed document: I take this as Eisenberg saying (1) we’ll make our motion using the public evidence, and (2) we trust that you’ll read it in the context of the sealed document and we do not intend to push (at this time) for access ourselves so as to include it in the public evidence. The discussion that follows talks not about Walker doing further review, but about Eisenberg doing it.
IOW, I could see Eisenberg’s final argument being “here’s what’s on the public record, and we believe that when combined with what YOU know from your review of the sealed document, you will have more than enough reason to rule in our favor.” Walker, for his part, says he’s not going to disclose the contents of the sealed document in his decision, but that’s not the same as saying he won’t consider what is there when making the decision.
And given his sense of humor, I can’t wait to see the written decision. “I’d love to spell out for you all that I have seen in this document, but I am prohibited from doing so for national security reasons. Therefore, I must refrain from opining further, and hereby rule in favor of the plaintiffs.”
A few years ago, I took a tour of the House and watched a few minutes of a debate over some Patent law issue before it (a more boring topic you can’t imagine). There were only a few members in the chamber at the time and I wasn’t paying too close attention to what was being said.
After a short while, I noticed a group of deaf students in a group in the next box in the balcony. They were being signed an explanation of the proceedings and it was PRICELESS to watch, as their facial expressions were part of the signing process and fully protrayed the dryness of the material being presented. The intern escorting them was about to crack up.
You want a full package of entertainment for this hearing?? Have someone sign all of this and broadcast the result (with the video). I’d pay good money to watch THAT. It would be one for the ages.
bmaz and all the other legal types,
Thanks for making all of this clear for us non-legals, and also for the early morning amusement.
Ya know, I had a restless night, got out of bed at 4am, and found all of this going on — don’t you folks ever sleep? Must have been all of your laughing and carrying on that kept me awake. Could ya try to keep it down a bit between midnight and 6am so us old folks can get some rest?
Just sent in a question about what Whitehouse had to say on Rachel’s show last night
A means to get the public thinking about issues
anyone want to throw a question out on the Diane Rehm show about the al haramin issue?
they are doing the weekly round up right now
Call 1-800-433-8850
email [email protected]
Leen,
Did not even see your comment until after I posted! Like minds!
OT:
The last statement by Whitehouse in his Rachel interview, in the form of good questions to be asking, I think was a shout out to you and screams a post. (Not to mention, Rachel’s “…lots of people will be parsing this interview,” comment.)
He interrupted Rachel’s wrap-up to interject the point which gave it “punch”.
It was this (rough transcript):
Whitehouse: One other question Rachel, to be asking, “What were the private contractors doing? Why did they have so much access to detainees, that gave them the power to interupt the most successful efforts in gathering intel on the war on terror? What enabled them to have that power?”
Rachel: “Who were they calling in Washington to give them that power?”
Whitehouse: “Exactly…those are important questions to be asking…”
Oh, good. I was just looking for a transcript of that exchange to copy. I shall credit you, mother of son of klynn.
You are welcome!
Son-of-klynn sends a,”Hello! skdadl!” (and Mother-of-son… send one too!)
This is a book that I want to reserve when it is written. Would you please put me down for a copy? I’d like it signed, Please?
“…finding [of] whether or not standing exists based on hypothetical facts, such as…”
In scientific research there are hypotheses and there are facts. Facts are descriptions of what has been observed to be true; hypotheticals are descriptions of what might be true. The term “hypothetical facts” is (to me) an oxymoron.
It seems that the governments defense against standing rests upon a term which is logical nonsense, thus collapses as legal nonsense.
I posted a link to this the other day – off topic in another thread. But since you’re talking about State Secrets Privilege here you might be interested in this recent post, The Current Battle against State Secrets Privilege, by Sibel Edmonds on her blog. If you don’t know Sibel is a former FBI whistleblower whom the ACLU called the most gagged woman in US history – gagged by State Secrets Privilege.
Not enough time this morning to really chew on this case (and “these cases”) but in connection with this:
I think it’s worth noting that there is public information about the “sealed document.” So without thinking this through (and dammit, I never sort the facts on these cases – but this one does involve the allegations that the US attys, while in the US, had their communications with an officer of their client captured while the officer was overseas, all without a FISA order, right?) here’s some random stream of consciousness reaction.
For a SJ, you can build some record with affidavits and attachments, and here if they are going to try to resolve some of this without having the actual content of the Sealed Doc in the record, I’d be looking for getting some legal ethics experts and client input info along these lines, realizing that I can reference the public record on the Sealed Doc, but not reference any personal knowledge of the content of the Sealed Doc and also realizing that standing is my issue.
It seems to me that if you have public reports of a document that may reveal specific lawyers, whose identity has been publically reported, were/are having their client communications acquired without warrant, those lawyers then have certain ethical duties in respect of those reports and those duties really flesh out standing and could be beefed up in the record with some affidavits from ethics experts or input from bar assoc ethics committees etc. and possibly (I’m iffy, mentally massaging this one) client affidavits.
It seems to me that the lawyers mentioned in public reports would have an ethical duty to determine, based on such public reports, whether or not there was substance to the reports, especially in light of other public reports of Gov that if telecom’s participation in the Gov’s massive program (maybe find a way to define it as the “Alleged FISA Felony Program” *g*)were disclosed, the FISA civil penalties for the felonies committed would be “crippling.” I don’t have cites, but there were Gov guys out there making those kinds of statements and they can be found pretty easily and give a publically reported sound basis for a beleif that there was a massive Executive branch run illegal surveillance program. As a matter of fact, I think there you have an admission against interest that wasn’t available for Judge Digg-Taylor in her case that went to the 6th – that Gov/Exec was demanding immunity from civil and criminal liabiity for the telecoms and saying that if they didn’t get it, the civil penalties would be staggering and cripple the telecoms (sometime I’ll get to stuff on the telecom front and how immunity might work in favor of discovery against Gov), so with those revelations coupled with reports of a specific document showing not just that any old US citizen on US soil surveillance, but surveillance of identified lawyer(s), I gotta believe not only do you set up a different standing situation, but you open the door to creating the record with affidavits on those duties. Obviously professional ethics are unkown territory to Gov lawyers the last few years, but I don’t think anyone will be able to offer up a prof ethics expert who would, under penalty of perjury, file a responsive affidavit that a lawyer who is publically reported to have been the subject of illegal surveillance in connection with client communications has NO DUTY or that the can continue to carry on overseas client communications without a care.
I think most ethics experts and very likely bar ethics committees might ante up that if you are the lawyer in such a situation, you will need to advise your other clients and especially clients who ever communicate with you from overseas, that you cannot guarantee the confidentiality of their communications. That’s a pretty big, real effect on a lawyer and if you have any client who decided they couldn’t have condfidentiality in their communications with you bc of the public reports that your client communications are at issue in the Sealed Doc, then you really flesh out standing IMO.
Some affidavits on duties, some on impact, maybe some clients who withdrew re: lost revenue, some affidavits on the costs of the Lifetime Employment of Coppolino litigation (even if hourlies aren’t being charged there are expense issues and the possiblity of hourlies but for a kind counsel) etc. and I don’t see how you don’t have standing – you have a professional duty to determine, you have the damage of duties to advise you clients that you might not be able to protect confidentiality, you have the costs of pursuing litigation that you are pretty much professionally required on the public record to bring, etc.
Now, that gets you to standing, but would it ordinarily get you to SJ on the FISA violation issue? No. But it gets you to discovery, except that here GOV won’t allow discovery on the Sealed Doc and won’t provide answers to interrogatories or any info on whether or not you and your clients have been the subject of FISA felonies. So one option for the court at that point is to have the allegations deemed admitted, and this is where Coppolino wails.
First he says, hey, don’t do that but instead, as you are hovered there on that point, instead say the whole issue of whether or not the State Secrets privilege is intended to prevent Gov from having facts relating to GOv crime on which Gov won’t give discovery deemed admitted against it is an issue ripe for interlocutory appeal without actually deeming the allegations admitted. Oy.
But in addition to the fact that the 9th has already agreed that kind of posture isn’t ripe for appeal bc that’s essentially what it already had before it, Coppolino is wrong on another point. He disingenuously reduces Gov’s options to a situation where they have been:
[put] … in the position of either disclosing the privileged information or losing, because we won’t do that
That’s not the case though. I pretty much remember the SJ rules as allowing for under oath affidavits to be put on in response. So if Plaintiffs put on a motion, it can easily be one that asks for (or the court can rule that the effect will be) deemed admissions UNLESS Gov puts on affidavits which, under penalty of perjury, deny as to the specific lawyers that their overseas client communications without compliance with FISA. If they can do that, they do not reveal sources and methods or “the program” and yet Walker would also be able to verify from the Sealed Doc and/or their other sealed info whether or not they are fibbing under oath.
So on this fairly specific situation, they could, without revealing sources and methods, put on a proper responsive affidavit that would avoid FISA civil penalties for conduct that is a felony under FISA if the lawyers after due diligence deny under penalty of perjury that such felonious activity existed with respect to the specific lawyers and their overseas client communications.
If Gov lawyers, after due diligence, refuse to put on an affidavit that, with respect to the specific lawyers (who have standing) there was not surveillance that did not have either a FISA or other court order — iow, if they can not under oath say the allegations are false, then they aren’t losing bc they won’t reveal privileged information (there is no Executive branch privilege to cover up its crimes – see the Keith case), they will be losing bc Gov will not say under oath that it didn’t commit felony surveillance of the plaintiffs.
rambly and not fully chewed, but fwiw.
Marcy can pull the specifics up out of the depths of her mind a lot easier than I, but the simple fact is that the government has screwed up and admitted enough of the gist of the sealed document in a couple of instances, I think Walker can make out standing without formally incorporating the sealed document in his factual basis if he wants to.
Submitting a proper response that answers the judge’s and plaintiff’s questions seems to be precisely what the government wants to avoid. Not simply as a stalling tactic, but because inherent in it would be admissions regarding the substance of plaintiff’s case.
If plaintiff was spied upon, that would be one reason Coppolino, et al., could not submit such an affidavit under oath and with the penalty of perjury. Defending your client is one thing; lying to do it would mean losing your freedom as well as your license to practice.
What that means is stalling is what Coppolino has left, in hopes that he can get a “nothing disclosed yet” appeal to the Sup. Ct., in hopes that Kennedy will side with the Four Horsemen of the Apocalyptic Right and overrule the 9th Cir.
If bmaz is correct, that’s precisely what Walker refuses to grant. The law and representative democracy rather hope Judge Walker gets his way.
Exactly – and doing so while the court has a Sealed Doc and sealed info before it to know that you are lying is a hammer that not every case will have. This case does have it.
And other cases (at least at this point – but that can change after this case and telecom case) won’t have the very specific standing asepcts that this case has bc of the publically reported nature of the sealed doc and the professional duties of those being surveilled to their clients, duties the court has to be particularly sensitive about.
So for all the cases you have standing issue – for this case you have standing that can be fleshed out (esp with some affidavits) better than any case I can think of without having to get at the content of the Sealed Doc, just public reports of its existence.
You also have Gov refusing to cooperate in discovery on a very specific issue and item (not the whole program and all methods, but the Sealed Doc) even with classifications and redactions and a loose copy floating around overseas. So you have Gov in a posture where it is very legitimate for it to have allegations deemed admitted and, contrary to Coppolino’s assertion, they don’t have to “either” hand over the program info carte blanche OR get deemed admissions, bc there’s another option. Gov lawyers can respond under penalty of perjury that the allegations are wrong. Without disclosing the program, but with putting themselves on the line if they are lying.
That’s what this case has right now that the others don’t – a situation where the court could force this to run or fold based on what the lawyers are willing to attest under penalty of perjury – BUT with the Sealed Doc for the Judge to use as a backstop to veracity of those attestations. So it can be “used” without having its context referenced and that makes the state’s secret issue start to crumble. That means that you have a carve out instance of being able to get to the criminality of actions against these particular plaintiffs without exposing the “methods” of the overall program.
Then, once you have record of the program generating criminal results to which civil penatly attached in this one instance, you open a lot of doors. But the beauty is being able to go forward without getting to the content of the Sealed Doc, and yet blocking lawyers from saying on appeal that they would have had to expose the Sealed Doc’s content (and negated the intent of the privilege assertion) to defend against the SJ. Instead the court can say all they had to do is what the SJ statutes require – respond with under oath assertions that refuted the allegations vis a vis plaintiffs, without implicating any info about the program.
Unless, of course, they really DID commit crimes against plaintiffs. In which case the court is going to be looking at lawyers fibbing in his court with evidence of their fibbing also in his court and I think that’s when he is saying he’ll give access to the sealed doc (his other hammer) So they either let the allegations go uncontested, and have nada on appeal, or they try a very parsed contest and see how that works, or they get someone to fib in an affidavit and misrepresent in a manner that the Sealed Doc refutes, in which case the court then gives plaintiff access to the Sealed Doc to get into the sanctions issue.
Moral leverage.
*g*
License leverage.
You know, one thing that surprises me, yet again, is that no one discussed the declarations submitted by the government. Walker has seen them–and the 9th has seen the old, inaccurate submissions.
I don’t know whether Walker will use them, but it seems revelant to understand whether or not he’ll refer to them, too.
Wouldn’t Walker and Eisenberg want to avoid that like the plague at this juncture because they want to get the matter decided on facts and consideration of that would put it in an appealable posture, and the government similarly interested in not discussing it overtly because, you know, they lied?
All I’m saying is that the declarations likely say, “hell we wiretapped him but here’s our excuse.” And Walker has not ruled out referring to them. What happens if he does?
That is, we have a big question of whetehr or not he’d refer to teh wiretap lob. But why not refer to the “oops! No harm, no foul”???
Yeah. Maybe i am loopy, but right now my money is on he is going to do exactly what he has indicated and inferred he is going to do, and that is find standing and some measure and degree of liability from the public record alone and then he is going to get briefing and input and decide how to proceed from there. I also pretty much expect Coppolino to try for mandamus at the 9th in the meantime, and get rejected again without a stay being issued.
Earl @ 48 – Oh Coppolino is a state secrets born and bred petulant authoritarian; he believes in his case.
EW@50 – absolutely agree.
I’d vote that he doesn’t refer to them in his rulings (unless gov were to do something so ill advised as to file a false or misleading public affidavit)
OTOH, they may well end up being part of the designated record on appeal and he may well be taking non-public action in respect of those filings.
I think you’re closest: Walker will refer to the controversy, but only to stress that he’s disabused his mind of any of the document’s content [’It’s been so long since I looked at it for an entirely separate purpose, and I’m so old, I think I might actually have forgotten!’]. And they definitely will end up being included in the sealed materials ‘returned’ to the appeal court in the event of an appeal [I wouldn’t guarantee an appeal; the plaintiffs are proceeding on principles, but it’s not like the ACLU and EFF actions in the sense of proceeding on purely altruistic grounds.]
Oh, it’ll be appealed. Walker had a comment in there that basically said, “they waiting for this…”
There is something troubling about this to me, particularly when any transcript delivered to the clerk of the court for the court’s records, in addition to the original notes or records of the reporter which have to be filed in the clerk’s office, are required under the Court Reporters Act to be open for inspection by the public. Yes, reporters should be allowed to collect fees for making transcripts of court sessions when requested by litigants, appellants, others, when those transcripts are going to be used in proceedings and thus need to be certified by the court reporter as correct. But to suggest that court reporters have all proprietary rights to any transcript is just insane. Think through the implications of that for a second. And then look through 28 U.S.C. § 753.
This was a rush transcript; it has not been filed nor made a formal part of anything such as you suggest. This is exactly as it should be.
So you’re saying that nothing will be filed with the clerk of court’s office?
I am just saying that is the way it works, I have to work with court reporters, I appreciate them, and have no problem operating under their rules. The transcript will not be part of the public record, other than available for purchase, until someone orders it up and attaches it to a pleading. That has not happened, and is not going to happen in the near future.
Wow.
That’s some weak sauce. I guess you paid for the transcript in your hot little hands, too.
Since that’s how their rules work.
I don’t get the reticence with this process. You have always had to pay for rush drafts, and precluding the transcript being attached to a pleading, they are simply not otherwise publicly available. There is just nothing new or controversial from what I see. Maybe there is some new-fangled rule I am not aware of, but this is the way it has always been on such things, and I have absolutely no problem with it. Do you have some specialized or more modern information than I do?
I have no absolutely no reticence whatsoever, now. My problem was that I had thought this was a case of: “I have Special Access, a Source if you will, who shall remain nameless, and I got this, but I’m not going to disclose it because they make money off these things, even though I have it because of my Source.”
In other words, my reticence was at the hypocrisy. The hypocrisy that it turned out was entirely imagined. I apologize for that.
I’m a dope. Nothing new. Move along.
(Although I should say that I think it’s ridiculous that we don’t have a system in place to make transcripts and documents that aren’t sealed or otherwise subject to a protective order available to the public for free. The technology exists. It’s our government at work. There’s no reason that we shouldn’t have free access to the workings. Yes, that would mean that court reporters should probably receive a higher salary, so that they wouldn’t have to rely on what they can make from selling transcripts, and the equipment should be provided by the government. But I’m willing to go there, in exchange for free and open access.)
No worries, was just perplexed.
“Poop Paddle” communicates far superior to “troll”, “BS” or any other name-calling noun. Who could fail to understand the message? Please use it widely as a sign of dishonesty and non-transparency.
rkilowatt?? from the old [maybe still] TESCO “mascot”-ready kilowatt ??
A special “Huzzah!” to bmaz for:
1. Going out of pocket (his own) for these al-Haramain eye-opening and amazing transcripts.
2. A really superb post analysis constructed with both wit and insight.
Huzzah, huzzah, huzzah!
I have earned no credit in that regard.
Not so fast! The “eye of the beholder” says otherwise! *g*
I give you credit for this … setting up the above blog so that we are able to visualize the proceedings as if we were there in the Courtroom … well done, Sir !
This is wrong: official documents of this kind should not be proprietary, that’s undemocratic. If payments from this source form part of court reporters’ income, the base income should be raised to compensate.
You know, with the whining on this that I have heard today, I am starting to be sorry I posted anything at all. You get a privilege and you proceed to indignantly whine about that which does not involve you, nor concern you and on which you clearly know nothing. Thanks a lot. You’re welcome.
JoeBuck and all
I think bmaz and I agree that the system in place for court transcripts is not right. Hell, I once wrote a probably 70,000 word post on it. Sort of.
But that doesn’t mean we can today change the compensation for the court reporters. So until we do, we ought to at least honor that system.
Reading through this thread has been a thing of beauty. I wish I had an adequate metaphor. But like a work of art.
It is either the greatest failing or greatest achievement of mankind that the proceedings of laws governing them require secular-clerics and scholars to interpret their meanings.
It’s times like this that I don’t regret at all the decision to avoid pursuing a legal degree; after having already passed the patent bar.