al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?

Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ silence regarding those claims effectively concedes them.

Not only was the TSP illegal, Obama’s DOJ does not even attempt to argue to the contrary. And, perhaps sensing what a bone it would be to throw to the informed denizens of Emptywheel, plaintiffs’ attorney Jon Eisenberg excoriates the OLC bogus memo meisters for ignoring the Youngstown case. Citing the Inspectors General Report, the brief states:

The report adds that Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),” and that Justice Jackson’s formulation in Youngstown for determining the extent of presidential power “was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions.” In 2009, former OLC Principal Deputy Assistant Attorney General Steven G. Bradbury formally repudiated Yoo’s memorandum as “‘problematic and questionable’” and “‘not supported by convincing reasoning.’” Thus, not even Yoo’s successors in the Bush administration were convinced by Yoo’s “inherent power” theory. Yoo stands alone and discredited in asserting that theory. (citations omitted).

See, it’s not just dirty hippies like Marcy Wheeler that are shocked and confounded by John Yoo’s legal fraud in failing to affirmatively discuss the seminal Youngstown case in the malevolent fiction he passed off as OLC opinions.

Plaintiffs go on to dispatch the weak and mostly rehashed arguments the government presses as to standing as well. It is quite clear that Judge Walker will be well within his discretion in finding standing if inclined to do so. It would appear Walker is so inclined from the way he has handled the litigation since its last remand from the Ninth Circuit.

Interestingly, in arguing that they have met the burden of proof necessary to obtain summary judgment, plaintiffs remind the court of the fact it has already indicated they have established a prima facie case under section 1806(f) of FISA:

Thus, the court did not merely hold that the allegations in plaintiffs’ amended complaint are sufficient to survive a dismissal motion; the Court also held that the evidence presented on plaintiffs’ 1806(f) motion constitutes prima facie evidence that they were subjected to electronic surveillance. The latter holding is critical to the pending motion for partial summary judgment, because plaintiffs’ burden on that motion is identical to their burden on the 1806(f) motion – to establish a prima facie case. See F.T.C. v. Gill, 265 F.3d 944, 954 (9th Cir. 2001) (plaintiff’s burden is to establish “a prima facie case for summary judgment”). Because plaintiffs have presented prima facie proof of their electronic surveillance on the 1806(f) motion, they necessarily have sustained their burden of proving electronic surveillance on their motion for partial summary judgment.

The other thing noteworthy is the plaintiffs have wisely noted Vaughn Walker’s tendency to operate a step ahead of them, and three steps ahead of the government. In this vein, they have noticed the court of their consent and request that the court exercise its judicial discretion and prerogative to uphold judicial efficiency and make certain all potentially appealable issues that could result from the ruling on the instant motion be determined and perfected for concurrent appeal thereafter.

Plainly this case is not destined to end at the district court level. If this Court finds Article III standing, defendants will certainly contend in the Ninth Circuit that plaintiffs’ non-classified evidence is insufficient to support that finding. The Ninth Circuit would benefit from an alternative ruling by this Court as to whether the non-classified evidence plus the classified evidence (including the Sealed Document) together demonstrates standing. That way, in the unlikely event the Ninth Circuit finds the non-classified evidence insufficient, the appellate court can resolve all standing issues in a single appeal, without any need for remand to this Court to decide the sufficiency of the combined non-classified and classified evidence and then another trip to the Ninth Circuit.

This Court can make that alternative ruling without giving plaintiffs’ counsel access to the classified evidence, and thus without re-entering the legal thicket that defendants have created with their strident resistence to further proceedings under section 1806(f). Plaintiffs have previously advised the Court that they are agreeable to the Court adjudicating Article III standing based on the classified evidence, without giving plaintiffs’ counsel access to that evidence under section 1806(f). See Plaintiffs’ Opposition To Defendants’ Third Motion To Dismiss Or, In The Alternative, For Summary Judgment at 21-22, Dkt. #50 at 30-31. Plaintiffs now reiterate that position with regard to their motion for partial summary judgment (but not otherwise). Defendants cannot reasonably object to this approach, in light of the Court’s advisement in the order of April 17, 2009, that the Court has now reviewed the Sealed Document, so that the Court is now well positioned to determine whether the non-classified evidence, the Sealed Document, and the other classified filings demonstrate standing.

This is both smart and consistent with what counsel and the court, in a sometimes hilarious oral argument back on June 3rd discussed. It is certainly within Walker’s discretion to touch both bases and thusly preserve the concept of judicial economy at both the District and Circuit levels. In short, it makes sense, even in the twisted world of civil litigation. Expect the government, by and through lead beagle of delay, obstruction and obfuscation, Tony Coppolino, to howl like a banshee about this at oral argument.

So those are the key nuts and bolts from my vantage point. The entire Reply Brief is only a 21 page PDF, and four of those pages contain only caption and contents info. It is an easy, relatively short and worthwhile read.

Judge Vaughn Walker has certainly evidenced the heart of a civil libertarian lion so far in this and other cases. I do not know how he will rule here, but the ball holding the Constitution and rule of law seems to be in capable, honorable and fair hands. That is all you can ask for. Well, all you could ask for short of an honorable President willing to live up to his word given the people that elected him when it comes to transparency, right to privacy, accountability and upholding the rule of law. Sadly, that part seems too much to ask for.

56 replies
  1. klynn says:

    Great post bmaz.

    Sadly, that part seems to much to ask for.

    Not to be the edit junkie but did you mean “too”?

    Expect the government, by and through lead beagle of delay, obstruction and obfuscation, Tony Coppolino, to howl like a banshee about this at oral argument.

    He’ll retire howling.

  2. DWBartoo says:

    Thanks, bmaz, for this thrilling (!?!) update.

    I do wish that more than one or two judges were all that stood between us and tyranny. An interested and responsible congress? An interested and aroused citizenry?

    It is “too” much, btw.


  3. BoxTurtle says:

    So, ObamaCo has until 9/23 to come up with a reason the 9/23 hearing should not be held.

    The only thing left to attack is the judge. Do you suppose that ObamaCo has the cajones to try and get Walker removed? I can’t see a single legit cause, but they’re run “The dog ate my homework” all the way to the supremes and if they challenged him that challenge would take precidence until it was dismissed months later. And on the chance they succeed, the entire things starts over under a new judge.

    Boxturtle (Beware the softshell crab: It attacks sideways)

  4. Stephen says:

    Can we, after considering almost all other judicial issues brought before this Obama Administration, now declare, that there is no eleveth dimensional chess being played? Is Obama obstructing justice? Maybe this query is too general.

    • BoxTurtle says:

      I wrote off 11 dimensional chess a couple of filings ago. Obama is a lawyer, he KNOWS this won’t fly. But they’re doing it anyway, because the more time they eat up, the more time ObamaCo has to push the Sacred Agenda.

      Once this is decided, there will be tremendous pressure from congress and they lobbyists to clean this up. Some senior congresscritters might see personal danger and covering their butt is more important than health care.

      Is Obama obstructing justice? Practically, yes. But legally, no. They’re entitled to their day in court and they’re just making the most of it. Very similar to a Texas lawyer fighting a death sentence. He knows he’s not likely to win in Texas, but every day is another day. And he might get lucky.

      Boxturtle (Still hoping that Walker will gavel the government to a pulp)

      • LabDancer says:

        I’ve written on this before, from the standpoint of experience both in acting for & in acting against an inheriting administration, so without going thru the process ad nauseum, I’ll just make 5 brief observations:

        [a] I remain unsold on the idea of Obama the person, lawyer & constitutional scholar having either any great degree of practical depth of knowledge on this case.

        [b] As I, and I think a few others here have posited [& now we can point to press reports, such as within the last week or so in the NY Times if I’m not mistaken] the Obama administration in general, with no reason to exempt Holder’s DOJ from this, is still encountering bureaucratic problems, with the combined effects of so few former Clinton pros left standing, so many embedded Bushies, so few Obama nominees & consequent new hires in place, so much to do on so many fronts, so little time having passed in which to address all that needs doing [& again, so few able bodies willing to attend to it, some at least actually inclined against & perhaps contributors to the problems]; and it’s not reasonable to expect all those to go away for some time; indeed, I would expect more dramas in this regard.

        [c] To the extent that the USG position on this makes any sense at all, it’s that the policy set by White House legal counsel firstnamefirstname, to keep those already in place on the waterbucket line busy on the fires, on the theory that might work to to save whatever can be saved of the state secret’s edifice, still pertains.

        [d] That policy is looking beyond silly into counterproductive in this case, but while it remains possible the government side will somehow express consciousness of this state of affairs at some point, I’d be willing to lay a sizeable bet on the side of that simply not happening before the end of oral argument on the 23rd. It’s almost always considered too dangerous & much trouble to even try to alter the path of a Queen Mary size boat over any short distance, & putting on the brakes just never works.

        [e] Absolutely none of the above owes anything whatsoever to 11 Dimensional Chess analysis.

        • bmaz says:

          You don’t think Obama is aware of and responsible for the nature of state secrets policy of his Administration and use by his DOJ? That flies directly in the face of Obama’s answers to questions when he has been asked about the subject.

        • BoxTurtle says:

          I agree with most of what you say. However, it does NOT take a great lawyer to realize that the government is ultimately going to lose. The only real chance they had was state secrets/classified information and Walker has pretty much said that FISA rules. Any lawyer capable of reading and understanding Walker’s decision would know this. And Youngstown is a major case, I find it hard to believe that anybody could graduate law school without attending at least one lecture on it.

          So IMO, Obama knows this isn’t winnable. He’s stalling.

          But here’s what I think will happen, FWIW. The government will switch it’s position to the equivalent of “No contest”. They will (outside of court) emphatically deny that any such action took place, and state tht they settled to avoid a protracted legal battle (While not noting they already HAD said battle) and to save government money. Nothing to see here, folks…move along.

          Boxturtle (Can someone enlighten me as to how damages would be computed in a case like this?)

          • bmaz says:

            Both parties and the court understand this is going to the 9th Circuit after this round. If the government wishes to continue to rely on, and fight for tooth and nail, the state secrets doctrine, then this is pretty much the expected path their pleading would take. The court is simply being extremely deliberate; I don’t know that it is stalling so much as a dogged (and disingenuous) determination to maintain their invocation of state secrets. You can expect a trip to the Supremes to follow the decision in the 9th Circuit. The critical thing for the plaintiffs and the court is to insure that everything is set up in the correct posture for these coming appeals.

            • BoxTurtle says:

              I should have indicated that my prediction starts after the government loses to the supremes. Which may be an optomistic assumption, I’m as sure as I can be that the plantiffs will win the 9th but I’m not at all sure that the supremes will rule based on current law.

              Will either of those courts let the government continue to delay? I’d almost bet the 9th will hear the case on an expidited basis, as for the supremes, well, Roberts sets the schedule.

              Boxturtle (Heck, the 9th might uphold Walker without even hearing the case)

          • JerryArrigoni says:

            Not only “how the compensation will be computed”. but just how do you pay al Harimann, if they are listed as a terrorist organization?

  5. WilliamOckham says:

    I love that brief. Especially pointing out the Judge Lamberth/Judge Walker tag team effort (in the footnotes, lawyers always put the good stuff in the footnotes).

    • Peterr says:

      Indeed. Giving the last word to the former chief judge of the FISA court and Chief Judge of the DC Circuit is a very nice touch: “The deference generally granted the Executive Branch in matters of classification and national
      security must yield when the Executive attempts to exert control over the courtroom.”

      It’s a good reminder to Walker that he’s not alone in standing up for Marbury v. Madison.

  6. LabDancer says:

    bmaz –

    Sorry for being picky, but shouldn’t it be “…they have noticed notified the court of their consent and request…”?

  7. Larue says:

    BMAZ, like wow, dude. *G*

    GREAT read, and thanks for the clarity of all the info.
    I ain’t smart enuff to figger it all out on my own, your work is essential to us lesser mortals.

    BoxTurtle, you rawhk. Thanks, also!!

  8. klynn says:

    EW and bmaz,

    Your last few post have gone front page. All are great investigative pieces. And thank you to the comments from WO too!

  9. jayt says:

    Not only was the TSP illegal, Obama’s DOJ does not even attempt to argue to the contrary.

    I’m not unhappy about this at all.

  10. booyah says:

    Phoenix woman has a new post up about BCBS North Dakota and Kent Conrad…

    but the “read More” and “comment” links are not working… and I’ve logged out and logged back in… but still can’t access comments for PW’s post.

    Mods…. any help here?

  11. Peterr says:

    The authors of this reply certainly have a nice way with words:

    Defendants challenge . . . even though . . .
    Defendants argue . . . even though . . .
    Defendants make no attempt . . . despite . . .
    Defendants continue to assert . . . even though . . .

    Another nice touch is their use of Bradbury to smack down Yoo:

    In 2009, former OLC Principal Deputy Assistant Attorney General Steven G. Bradbury formally repudiated Yoo’s memorandum as “‘problematic and questionable’” and “‘not supported by convincing reasoning.’” Id. at 12 n. 12, exh. CC at 17 n. 12. Thus, not even Yoo’s successors in the Bush administration were convinced by Yoo’s “inherent power” theory. Yoo stands alone and discredited in asserting that theory.

    Nicely played.

    • skdadl says:

      Tangential, if not quite O/T, but those two last memos of Bradbury’s strike me as one of the oddest things we saw at the end of the Bush regime. The more serious rationale is at the link, but it was almost as though Bradbury was cocking a snoot at us as he walked out the door. “Ha ha — we didn’t mean it after all.”

      bmaz, please don’t smite me for not linking to the I’m sure much better discussion we had here at the time — I was just being lazy and googled, and that was the first good summary that came up.

  12. Peterr says:

    pdf p. 11:

    Defendants seem not to fully understand the Court’s ruling. The Court did indeed hold that plaintiffs’ evidence is sufficient to survive a motion to dismiss at the pleading stage, stating: “Plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss.”

    Correct me if I’m wrong, but this strikes me as legalese for “Defendants are either dumb or playing dumb, because they lost that battle already, as the Court well knows.”

    • BoxTurtle says:

      That’s EXACTLY how I’d translate it.

      Boxturtle (Hoping that paragraph makes in into Walkers final ruling)

  13. behindthefall says:

    O/T, or off to the side … Been away today; has this been generally seen?

    A Spanish judge has decided to go ahead with the prosecution of six Bush administration lawyers — including former Attorney General Alberto Gonzales — who were the architects of the legal framework for President George W. Bush “enhanced interrogation” program, according to a report in the Spanish newspaper Publico.

    I see whitewidow noted it with a different link @19 while I was reading and posting.

  14. Peterr says:

    More rhetorical fun (pdf pp. 16-17, citations omitted):

    Defendants insist that they are not asserting the state secrets privilege “to cover-up alleged unlawful conduct.” Their counsel’s own colleagues at the Department of Justice think otherwise. On September 16, 2008, seven law professors presented a joint statement to Congress saying: “In recent years, the Executive Branch has increasingly used [the state secrets] privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program” – citing the Ninth Circuit’s opinion in this very case. Among the signatories to this statement are: David J. Barron, who is now Principal Deputy at the DOJ’s Office of Legal Counsel; Martin S. Lederman, who is now Deputy Assistant Attorney General at the Office of Legal Counsel; and Dawn E. Johnsen, who is President Obama’s nominee to head the Office of Legal Counsel. Given the belief of top officials at President Obama’s DOJ that the assertion of the state secrets privilege in this very case has been designed to cover up unlawful conduct, this Court should look askance at defendants’ protest to the contrary.

    That’s going to leave a mark.

  15. perris says:

    Judge Vaughn Walker has certainly evidenced the heart of a civil libertarian lion so far in this and other cases. I do not know how he will rule here, but the ball holding the Constitution and rule of law seems to be in capable, honorable and fair hands. That is all you can ask for

    but from yours and marcy’s post I do believe the government is simply trying to get a decision from walker so they can appeal, that’s their strategy

    • BoxTurtle says:

      O/T: Hey, Mod! How come you folks always pick an old post from the wheelhouse to spotlight? You’re now highlighting an EW post that was superseeded by this one almost four hours ago and some of the Wheelhouse regulars have already moved on to this post.

      Boxturtle (*whine* *kvetch*)

  16. Justinajustice says:

    Excellent post. Thank you bmaz. The Reply brief was brilliantly organized and written. Let’s hope that the judge’s decision is equally so and survives its inevitable trip to the Supreme Court.

  17. x174 says:

    Democracy Now has this great blurb about former USAG Asscrack:

    former Attorney General John Ashcroft can be personally sued for the wrongful detention of an innocent US citizen


    plus the judge’s comment seems contrary to the last eight miserable years:

    The court said detention of witnesses without charge was “repugnant to the constitution”.

  18. Hmmm says:

    It just occurred to me that if PBO actually wanted to see this case lost, but also didn’t want to later suffer blame & blowback from the right over it, then he’d let the indefensible parts go and also defend every other part to the Nth degree. Which is indistinguishable from what we’re seeing, is it not?

    • bmaz says:

      Absolutely and unequivocally not. The thought that Obama “wants to see this case lost” is laughable on its face. he has fought for the right to assert the state secrets privilege in every venue and case possible and has fought hard and filed repeated declarations in support thereof; including in Jeppesen where the 9th Circuit literally called him out and chastised him for it. It is simply astonishing that people can still believe this is some grand eleventy dimensional chess feint. It is not; this IS their position and they are fighting like dogs for it.

      • bobschacht says:

        It is simply astonishing that people can still believe this is some grand eleventy dimensional chess feint. It is not; this IS their position and they are fighting like dogs for it.

        I meant to try another take on this with you in our all-too-brief meeting last night:

        Obama is not known as a chess player, but his basketball skills are evident.
        There’s a big difference: In chess, as in court, you play to the end-game: the game ends with “Check mate,” or with “The court finds that…”

        Basketball, and politics, are different. A basketball game has 4 quarters. The game isn’t over until the clock runs out. And when the clock runs out, the game ends, no matter who scored the most points in the last minutes of the game. You could score the last 20 points in the game, but if you fall 2 points short in the game total, you lose.

        As I see it, we’re nearing the end of the first quarter. My bet is that Obama had a game plan for the first quarter, and his staff is evaluating that game plan in the light of events that have taken place. I think that evaluation will continue until the end of the year. Some aspects of that game plan worked, others didn’t.

        I think the second quarter will have a different game plan, which we will find out about mainly in his SOTU speech next January.

        Any basketball team wants to be ahead at the end of each quarter. But the main goal is to be ahead at the end of the game.

        I think that this is a very different way of operating than the Bush WH. Their idea seemed to be that you got all your points (political capital) at the beginning of the game, and again after the first half (mid-term elections), and that the thing to do was to “spend” your political capital. Their game model was more like poker?

        Bob now in AZ

  19. Mary says:

    Great post bmaz. It’s nice to see the counsel involved in this doing such a very good job as well. It’s well and good to “know” which side is the right side, but it makes things much easier when the advocacy is done so well.

  20. booyah says:

    ps… as an aside Emptywheel…. I just read about al Kidd’s victory of sorts in Idaho… the 3 judge Fed Court ruled that Ashcroft could be personally held responsible for them holding al Kidd for 2 weeks in 2005 for no reason (can’t remember the technical terms the bastards used to fuck up his entire life…) He is a US Citizen…

    Anyway, seems to be a big case victory…. all three judges were either Bush or Reagan appointees.

  21. Stephen says:

    Wouldn’t it be great to find out that the Spanish believe they have a slam dunk case against Darth and his evil sorcerers because of all the Emptywheel research handed to them on the net?

  22. oldtree says:

    Holmes, Thurgood, even Madison, would watch and wonder at how the system they helped create has become the only refuge of the people for justice as the other branches ignore their oath of office and continue to commit crimes not only against the people of our country, but against humanity.
    It is a wonderful thing to know that there are some judges that rule by the law. There are some of you judges out there following this too, watching your country, watching your profession in times likely to “try men’s souls”.
    thanks Bmaz and to the Wheel. You are going to be remembered as long as there is democracy. You take on the government for the sake of the people’s right to know. Not a client, not a requirement to defend. The very existence of the concept we hold dear, and are in danger of watching fly from the cage that some will wish to keep closed, forever.

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