Obama DOJ Asks Full Panel to Review Jeppesen

When the al-Haramain hearing last week turned to questions of next steps, DOJ’s Anthony Coppolino played for time.

 THE COURT: All right. What I would suggest is a — and I’m going to ask the clerk to backstop me here. We have a special setting for hearing this motion — we  could hear it on the — How’s the 5th of August?

(Attorney Coppolino shaking his head.)

THE COURT: Mr. Coppolino says no.

MR. COPPOLINO: Well, really, the first two weeks of August are quite bad for me. I was going to suggest, perhaps, the first Thursday that I could do; it would be the 20th.

THE COURT: Doesn’t have to be on a Thursday unless we have to work around a trial.

MR. COPPOLINO: Okay. My preference would be the 28th or 21st. Looks like you are not available the following week, at least according to that calendar (pointing), at least.

THE CLERK: That’s correct.

MR. COPPOLINO: So I would ask the Court, if it’s possible, and depending on Mr. Eisenberg’s schedule, no sooner than, say, the 21st or then after Labor Day.

MR. EISENBERG: Your Honor, I’m going to be mired in work throughout July and August; it doesn’t matter to me what date you choose. It’s going to be a tough summer; I’m prepared to deal with that.

THE COURT: All right.

MR. COPPOLINO: Plus, you need to build in time for his reply because if he files on the 30th, I would need July because we have the Jewel hearing on the 15th. So I think I need at least the end of July — he gets to reply, if it’s his motion, so I think, unfortunately, if it’s okay, we are into September.

THE COURT: What does September 2 look like?

I suspect that when Coppolino pushed al-Haramain out into September, he knew this was coming (from an ACLU press release).

The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court’s full panel of judges to rehear that decision.

"The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. "The CIA’s rendition and torture program is not a ‘state secret;’ it’s an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability."

In April, the appeals court reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration had intervened, improperly asserting the "state secrets" privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the "state secrets" privilege with respect to specific evidence, not to dismiss the entire suit.

Much depends on the Jeppesen decision, in both Jeppesen itself, the Jewel suit, and on al-Haramain. So long as the Administration cannot invoke state secrets over "information" rather than discrete pieces of evidence, the government will, slowly but eventually, be held accountable for the crimes committed under Bush. And I suspect that Vaughn Walker’s proposal to decide the al-Haramain on the information in the public record depends in the ability to protect "information" rather than "evidence."

I look forward to our legal resident of the 9th for his take on this–I don’t think the full panel will reverse the Jeppsen decision. But I guess you gotta go through the 9th to get to Anthony Kennedy. 

Update, from bmaz:

Good luck with that [colorful language omitted] this is the 9th circuit bitchez, not one of your jimmied up east coast gigs.

Wonder how many microseconds it will take Jay Bybee to run like hell the other way from this??  Heh.

49 replies
  1. phred says:

    IOW, if Coppolino can’t get Walker to give them a route to appeal, they’ll use another case to try to get to the same place with the appeals court. Weasel, weasel, weasel…

    • emptywheel says:

      No, they were undoubtedly going to appeal this anyway. And my understanding is that the 9th’s stance on state secrets is different enough from (IIRC) the 4th’s that this might be an easy case for Cert.

      • phred says:

        I agree they would have appealed anyway. Perhaps I misread what you meant, I thought you were implying that a decision from the 9th (presumably in the government’s favor) could then be used by Coppolino to stymie Walker in al-Haramain. Did I misunderstand that?

        • emptywheel says:

          Yes. But you’re assuming that the 9th would reverse the decision. Ain’t ‘gonna happen. Plus (as bmaz points out) they’ll be down one of their most conservative judges, given that he presumably will have to recuse since he’s the one who signed the torture memo in teh first place.

  2. DeadLast says:

    The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions….

    Obama seems to be caving on pretty much everything these days. Cheney/Bush must have left some pretty nasty traps for the new Administration.

    • bmaz says:

      Why do you believe it is traps causing Obama’s shortcomings rather than that this is the political creature he always was and was always going to be? All you have to do is look at how he pandered Russ Feingold by pretending to be a civil libertarian and then turned on his head and lead the perfidy on the FISA Amendments Act passage. He could have stopped that dead in its tracks; he didn’t want to. He didn’t even bother to put on the extended filebuster show he promised.

      • WilliamOckham says:

        The two things (traps left by the previous administration and Obama’s political nature) aren’t mutually exclusive. In fact, there’s a lot of evidence that they are mutually reinforcing.

        • Mary says:

          Yeah, and unfortunately when you look at the consultative outreach from Obama, it isn’t ever to the Feingold’s and Leahy’s.

          I still think the Johnsen thing is working out just as he wants it to – it is way easier for him to do all this with her out than with her in, and yet she’s still something he and Rahm can point to as their bone they tossed.

  3. Jkat says:

    i think the correct spelling is: S-T-A-L-L … or is this one of those “modified limited hangout” thingys ??

    i’m 60 .. do y’all think there’s a chance this case will be resolved in my lifetime ??

  4. bmaz says:

    I look forward to our legal resident of the 9th for his take on this-

    Keep in mind that Sheriff Joe is probably working overtime to make me an illegal resident. Off color remark? Me??

    On a more serious note, one of the three judge panel that decided Jeppesen, and the one in oral argument who was incredulous that Obama was taking the same exact position as Bush, was none other than Ninth Circuit Chief Judge Mary Schroeder. One of the others is a much beloved Senior Status Judge, Bill Canby. the third is Mike Hawkins who wrote the opinion. That is a lot of heft come en banc time. I just don’t see this decision changing in the Ninth.

    Also keep in mind where Anthony Kennedy came from – yep, the 9th Circuit.

    • scribe says:

      You expect Bybee to be running the other way on this case?

      Just like Sam Ervin expected Rehnquist to cut and run from sitting on Laird v. Tatum, right?

      You remember that case – it was the one where the military was … wiretapping and spying on civilians who protested against the Republicans’ warrin’ in Vietnam.

    • scribe says:

      Also, re the judges on the panel.

      While they might get some props from their brethren and sisters on the bench, the Senior status ones don’t get to sit.

      And, given the Ninth’s rotating panel for en banc (where they select a subset of judges instead of having the whole dysfunctional family sit in one room – unlike all the other circuits IIRC), there’s no way of knowing what the panel will look like.

      • bmaz says:

        Because I know these judges well, and I know from the dynamics over the years how things usually play out there. The senior status judge is very influential, his opinion is very valued; trust me it has an effect. I suppose it is possible they reverse, but I would be shocked beyond belief.

        • scribe says:

          Ah, yes, and everyone agreed that it would be patently unethical for Rehnquist to sit on Laird v. Tatum, as he’d been deeply involved in the program of wiretapping and spying while at DoJ prior to being elevated to the Court, so much so that his recusal was assumed. So no one asked.

          Only he didn’t. And, IIRC, it was a 5-4 case with him in the 5.

          So, someone had better move to get Bybee off the list of judges available for en banc. Respect or not, he’s a Republican judge appointed by a Republican president to a court deemed by Republicans to be too liberal, addressing a case of existential importance to Republicans and (even setting aside the case) that means his loyalty is to Republicans first and law second.

          And, of course, if the case comes down that the government’s position is legal, which would help Bybee by showing him prescient, as opposed to enabling criminals, then that impeachment we’re so counting on will … evaporate.
          Move to have him disqualified. If he casts the deciding vote on an en banc, he might be impeached, but he’s already heading there. You can’t impeach the guy twice – once is all you get.

        • emptywheel says:

          He’s not already heading there, yet. Sitting on this panel would be a quick way for him to ensure he does head there, and he is really really trying to hide under a rock and hope no one notices.

        • scribe says:

          He can (and should) be impeached on his record to date facilitating torture. Letting him lie around where he can be a part of the pool for the panel is like letting a loaded gun lying around: no good can come from it.

          Hoping a Republican will “do the right thing” – and that includes hiding under a rock – when it goes contrary to the Republican party’s interests is wasted hope.

          There should be a motion filed ASAP to have him DQd.

        • emptywheel says:

          Yes, you and I agree that he should impeached. But is a majority of either Judiciary committee yet prepared to do it? Not yet, though they’re thinking about it (and SJC surely isn’t going to do it before Soyomayor is confirmed).

          So the question is:

          1) Does he want to keep his job (yes)
          2) Does he believe that if he doesn’t recuse he is more likely to lose it (yes)

          I’m not making my argument based on what a Republican or a Democrat will do. I’m talking about human nature, and by all appearances, Bybee is pissing his pants hoping he’ll find some way to keep his job.

        • Mary says:

          I agree, plus he knows he’s looking at State bar issues and not recusing only makes those bigger.

          Is he going to be impeached on status quo? Nope, but if he is disbarred or censured by his State bar and doesn’t step down, then he is likely to if not get impeached, to at least open a lot of doors to discussion as to why a disbarred lawyer sitting on the 9th isn’t being impeached.

        • bmaz says:

          Even if he stays, he cannot afford to look like more of an idiot than he already does to the other judges on the 9th.

        • Peterr says:

          Seriously, is that possible?

          The infamous Bybee memos are pretty damning, and I can’t imagine that his colleagues on the court haven’t read them.

  5. bmaz says:

    You bet I do. In the first place, Bybee is a worm, secondly he is scrambling to save his seat and, thirdly, if he is to remain on the court, he must save face with the rest of the 9th roster. Trying to involve himself in this would turn him into far more of a pariah than he already is. He will, to quote Pink Floyd from The Wall, Run Like Hell.

  6. Loo Hoo. says:

    OT-related to this morning’s post…Part of a letter from Difi:

    I believe that there must be a careful review of the manner in which the CIA detained individuals and the interrogation techniques that were used. The Senate Select Committee on Intelligence, which I chair, is responsible for conducting oversight of America’s 16 intelligence agencies, including the CIA. On March 5, 2009, the Committee announced that it will conduct a comprehensive, bipartisan review of CIA detention and interrogation programs as they evolved following the September 11, 2001 terrorist attacks. This review is closely examining how these CIA programs were created and operated, the conditions of detention and the implementation of interrogation techniques, whether they complied with official authorizations, and their effectiveness in producing credible, actionable intelligence information. I expect this review will take six months to a year, and I believe that questions on holding people accountable should wait until the facts are in.

  7. TarheelDem says:


    Comment on the long-term if the DOJ loses based on as strong an argument as they can muster and if DOJ decides not to fight it but backs off. Since clearly, the arguments DOJ is putting forth are at a serious disadvantage in the 9th district.

    And the likely outcome if these go to a Supreme Court with Sotomayor replacing Souter.

    • bmaz says:

      If anything, I expect Sotomayor to make the Supreme Court more conservative and law and order than with Souter. In other words, worse for issues like this. Especially at first she will be a sheep on an issue like this, and I think that is very much her natural tendency to start with.

    • Peterr says:

      For Bybee, the thought of having his own words quoted to him in front of the rest of the panel might be rather strong incentive to find somewhere else to be whenever this case gets heard.

      It’s one thing when a fellow judge rips your thinking apart in an opposing decision/dissent — but when a mere lawyer does it to your face in court and the rest of your colleagues are nodding in agreement . . . that’ll going to leave a mark.

  8. thnelson says:

    In the al-Haramain vein: The warrantless wiretapping case (Al-Haramain v. Obama) is not the only active matter involving the former Saudi charity. Most germane to the Jeppesen petition for en banc review is an Algerian chap by the name of Laid Saidi, who is the former head of Al-Haramain Tanzania, where he was responsible for an orphanage and school. In May 2003 he was summarily deported from Tanzania to Malawi, where a CIA “black flight” picked him up and took him to Bagram, Afghanistan. He suffered the same fate as others taken there (his fellow jailmates included El-Masri) – the standard humiliation, stress positions, sleep deprivation, hanging from the ceiling — all of those nice little touches that have made our country so popular in the Middle East. When interrogation actually began it became apparent that his kidnapping and torture was BASED UPON A MISUNDERSTOOD INTERCEPTED TELEPHONE CONVERSATION: The CIA heard the English word “tire” with the Arabic plural “-at” as the Arabic, “tairat”, which means “airplane”. The CIA thought that Mr. Saidi was seeking to buy an airplane when in fact he was trying to buy vehicle tires. Anyway, once the translation error was discovered Mr. Saidi was released to his native Algeria, where he is today, without so much as a “Gosh, sorry”. Obviously, attorneys for Mr. Saidi will be watching the Jeppesen appeal with some interest. Doubtless the CIA would claim that the poor quality of its interpreters should be a state secret.
    Finally, there’s yet another al-Haramain connection that hasn’t gotten much coverage yet: Pete Seda, the charity’s director in Ashland, Oregon, will be going to trial on a tax-reporting charge in November.

      • thnelson says:

        No; so far it’s only an active interest. I think the bigger issue, however, is getting the United States simply to recognize and acknowledge the illegal – read “inhumane” – practices of the past Administration. That is why I am so disappointed with Mr. Obama; his Justice Department is on a scorched-earth legal crusade to deny any sort of accountability to the victims of the past Administration.

  9. MadDog says:

    I feel the need to repeat myself lest bmaz get away without seeing my comments on his most recent post:

    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!

  10. 1boringoldman says:

    Lawsuits Force Disclosures by C.I.A.

    In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.

    The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing…

    Any idea where these are?

  11. MadDog says:

    A question I’ve been pondering:

    That recent NYT article by Scott Shane indicating that the Obama Administration intends to release 2 sets of previously classified material:

    …In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.

    The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing. The report by the inspector general, whose secret findings in April 2004 led to a suspension of the C.I.A. interrogation program, will be released by June 19, the Justice Department said in a letter to a federal judge in New York…

    (My Bold)

    The question that has occurred to me is whether the release of the CIA OIG Report is in any way connected to former VP Cheney’s request that the CIA declassify 2 reports that he claims documents the value of actionable intelligence gained from the torture program he personally created and lead.

    Does this also mean that the Obama Administration intends to release those 2 documents former VP Cheney had requested, and that the release of the CIA OIG report is meant to overwhelm any inference to intelligence gained in the other 2 CIA documents?

    The reason that this question occurs to me is that there seems to be, and to have been, little legal imperative on the Obama Adminstration to release the CIA OIG report.

    Yes, it was, and is, part of the ACLU lawsuit, but I’m not aware of any particular recent cause of action or initiative by the ACLU to increase the pressure to release this particular CIA OIG report document.

    Anyone want to bet whether Cheney gets his 2 documents?

    • 1boringoldman says:

      “the release of the CIA OIG report is meant to overwhelm any inference to intelligence gained in the other 2 CIA documents”

      If there is any such inference…

      Levin, speaking at the Foreign Policy Association’s annual dinner in Washington on Wednesday, said an investigation by his committee into detainee abuse charges over the use of the techniques — now deemed torture by the Obama administration — “gives the lie to Mr. Cheney’s claims.”

      The Michigan Democrat told the crowd that the two CIA documents that Cheney wants released “say nothing about numbers of lives saved, nor do the documents connect acquisition of valuable intelligence to the use of abusive techniques.”

      “I hope that the documents are declassified, so that people can judge for themselves what is fact, and what is fiction,” he added…

  12. fatster says:

    [Editor’s Note: This statement was provided by the Department of Justice on June 12, 2009.]

    WASHINGTON – “The Department of Justice announced today that three Saudi nationals were transferred from the detention facility at Guantanamo Bay to the Kingdom of Saudi Arabia under appropriate security measures.”


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