Judge White Thumps The DOJ On EFF FOIA Case

Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen:

The Court reviewed and explicitly rejected Defendants’ contentions that any exemption under FOIA or privilege barred disclosure of the disputed documents and information. Having made no new argument, the Court does not find that Defendants have made a strong showing that they are likely to prevail on the merits of their appeal. Second, the Court finds that the public interest and the balance of hardships squarely favor timely production of the requested documents.

Nice. Then he lowers the boom. And, all things considered, it is simply a devastating blow:

Considering the delay in disclosure thus far in this matter, the current administration’s pointed directive on transparency in government, and the public’s renewed interest in the question of legal immunity for the telecommunications companies that participated in the warrantless wiretapping program while considering currently pending legislation repealing the amendments to FISA, the Court finds that the public interest lies in favor of disclosure. This Court has already found, when deciding the motion for preliminary injunction in this case, that “irreparable harm exists where Congress is considering legislation that would amend the FISA and the records may enable the public to participate meaningfully in the debate over such pending legislation.” Electronic Frontier Foundation v. Office of the Director of National Intelligence, 542 F. Supp. 2d 1181, 1187 (N.D. Cal. 2008). The Court finds that same harm to the public interest exists in the context of the current debate regarding legislation designed to repeal the retroactive immunity for telecommunications companies. The unusual circumstances of the continued debate on the issue of legal immunity for the telecommunications companies that participated in the government’s warrantless wiretapping program distinguish this case from the common FOIA matter. Although timely disclosure would negatively affect the Defendants’ position on appeal, it is not clear that Defendants will even pursue the appeal already filed and, regardless, the Court finds the equities weigh in favor of denial of a stay.

Ouch. In the first sentence, he hammers the government for its delaying tactics, pricks Obama for his earlier, but now seemingly abandoned, claim to favor transparency, and upholds the public’s right to know. Beautiful! And then, for good measure, he repeats the inherent interest the public has in the warrantless wiretapping issue as well as the attempt to immunize the telecoms.

Any bets on whether there is a copy of this decision sitting on Vaughn Walker’s desk? We shall see what the 9th Circuit does once this is back in their lap, but Judge Jeffrey S. White has left no doubt whatsoever what he thinks. Oh, and by the way, Judge White set the next disclosure deadline for October 16, 2009 at 4:00 p.m. PST. That would be this Friday. I bet there is some serious scurrying around by the DOJ today and Thursday.

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98 replies
  1. perris says:

    but but

    yhe unusual circumstances of the continued debate on the issue of legal immunity for the telecommunications companies that participated in the government’s warrantless wiretapping program distinguish this case from the common FOIA matter. Although timely disclosure would negatively affect the Defendants’ position on appeal, it is not clear that Defendants will even pursue the appeal already filed and, regardless, the Court finds the equities weigh in favor of denial of a stayAndrew Jackson (vetoing the Second Bank charter extension, 1832): “Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congres

    tell me please, what is to stop obama’s adminsistration from pulling a cheney, to wit;

    “so?”

    cheney and bush were famous for simply ignoring our law, ignoring court orders, ignoring subpeona and continuing whatever the hell they wanted to continue

    as a matter of fact, bush would go so far in this case as to issue an “executive order” granting his own self the right to ignore anyone and everyone “in defense of our country”, he would even site “the enabling act” “the patriot act” which “clearly” authorises him “to use all necessary force”

    in oher words, and less verbose, what happens if the president out right refuses?

    • perris says:

      so, if there is contempt of court, who goes to jail if they had the nerve to arrest (they don’t but for academic purposes)?

      not the lawyer, he’s “following orders”, would it be the attorney general?

      obvioulsy the has culpabilitiy since he’s making these disisions (under flawed advisement but the decisions are his) but congress will not even try to make the claim

      HOWEVER

      THE REPUBLICANS MIGHT!!!!!!

      let me tell you, that would be SWEET!!!

      there are republicans right now mounting a case for impeachment against obama and while the case they are making has neither grounds nor support, if they switched and made the case based on wireless wiretapping, based on failure to prosecute war crimes and based on abandoning the oath to the constitution, why then liberals (like myself) would JOIN these wing nuts in this effort

      now mind you, I believe if obama understands he WILL face review then he WILL comply with our law

      but for now, cheney/bush have absolutely proven the president is above the law, unless and untill we can disabuse that proof, then the president IS above the law and it WILL take an impeachment to get our power back

  2. Peterr says:

    This Court has already found, when deciding the motion for preliminary injunction in this case, that “irreparable harm exists where Congress is considering legislation that would amend the FISA and the records may enable the public to participate meaningfully in the debate over such pending legislation.”

    White smacks them down not with mere abstract language about “the public’s right to know,” but with a very specific reference to the current political debates. Nice.

    Shorter White: “We’re done here. If you’ve got a problem with that, take it up with the folks upstairs.”

    • perris says:

      White smacks them down not with mere abstract language about “the public’s right to know,” but with a very specific reference to the current political debates. Nice.

      that’s a great point and democrats, including bloggers really need to use this tool

      I have been saying from day one that we NEED to frame the debate in our terms, if we use the debate’s own terms we lose that debate

      for instance, “wireless wiretapping” loses the argument when we try “it’s unconstitutional, it violates my rights”

      however it WINS the aregument when we “I don’t want the government stealing my information, I don’t want a depraved government official using the cover of his office to spy on my teenage daughter or stealing my busines secrets”

      there is the differance and this judge recognizes that

      now progressives, mostly progressive bloggers need to learn from this, and if we follow this judges example then the politicians who read our blogs will too

      • freepatriot says:

        I fail to understand how mentioning the Constitution hurts our cause

        in fact, when some asshat repuglitard says that our government is supposed to keep us safe, we need to shout BULLSHIT at the top of out lungs

        THE CONSTITUTION KEEPS US SAFE

        our government is supposed to defend and protect THE CONSTITUTION

        every government employee takes an oath to defend THE CONSTITUTION

        nobody takes an oath to defend Americans

        if you don’t want the government staeling your information, enforce the constitution

        and defend it

        it defends you

        we gotta straighten that point out with the masses

        • perris says:

          though it might have looked that way I surely didn’t mean my post the way you read it

          I didn’t say it hurts our cause (it doesn’t hurt the cause it helps it)

          I said it loses the debate if that’s all we use, we need to make clear points along with our referances

          that’s the point

          • freepatriot says:

            loses the debate equal hurts our cause

            how does that not equate ???

            losing hurts

            and defending the constitution is the only concern I got in this fight

            so I fail to understand

            the constitution is all we got

            without it, we might as well let little king george wave his small penis at the rest of the planet, what’s the point

            • perris says:

              I guess I’m not being clear

              it doesn’t hurt our case it clearly helps

              but it can’t be the entire case, that will lose

              it doesn’t hurt to have the best manager in history calling the shots in a series, it helps of course but if that’s the ownly weapon on your team then you will lose more then you will win

              same thing here

              I am saying I agree with your point, I am adding to the constitutional argument not replacing it

            • Peterr says:

              White’s method of defending the constitution was to tie a broad principle to very specific current activities of ordinary people.

              If members of the public are to “participate meaningfully” in the political discussions about possible changes to FISA, they (we) need this information.

              It’s not an either/or, fp, but a both/and — and the both/and makes for a much better weapon in this fight.

              • knowbuddhau says:

                Thanks for the excellent coverage, bmaz, there’s no way I’d’ve been able to decipher that myself.

                I like the way the order is placed in its proper context. Is that what you mean, perris? That if the only argument we make is about our rights in the abstract, then we’ll lose? And we needn’t choose between them, I think that’s what Peterr is saying, right? Using both obviously results in a much more moving narrative.

                I’m getting the idea that legal arguments are somewhat like anatomical drawings: the observer is expected to disregard the effects of dissection, and to regard the organ (or what have you) as if it were whole.

                I noticed this sitting in an orthopedic surgeon’s office, looking at textbook drawings of hands, since one of mine was in the process of being repaired after a run in with a table saw. The hands are chopped off at the wrists, with everything just fading away.

                What I want to know is, is that how courtroom arguments work, too? Has the DOJ been getting away with murder by abstracting out of their proper context the truly important events, then getting them treated as abstract conflicts between abstract bodies? I’m sure that would work, at winning cases and advancing careers, but what of the vivisected body politic?

                Also, I want to ask about the use of the strategy, which the Pentagon calls “strategic disinformation campaigns” and I call myth-jacking, by DOJ.

                I’m thinking that our “best and brightest” thought they’d come up with the ultimate tool for “manipulating the media narrative;” weapons-grade domestic propaganda running on the power of myth. “In a world where nuclear-powered Muslim terrorists are popping up all over America, only The Big Man Upstairs can keep us safe, and only if we don’t tie one hand behind his mighty back. Screw the Bill of Rights, we’re at WAR!”

                Or some such thrilling movie preview narrative that immediately puts people in fear for their life, not mere abstractions like civil liberties. As in, “Obama wants to kill grandma!”

                It’s clear to me: they’ve been jacking us around with the power of myth. Here’s my question: just as with jacking the health care reform debate to hell, has DOJ been using a similar strategy? Is that what’s behind the atavistic efforts to make an American king? It sure would be easier to go to war, if all we had was the Executive.

                “Do as you’re told, quickly, the terrorists are coming to town with suitcase nukes!”

                The force of the narrative, IMO, seems designed for turning us self-sovereign citizens, even when sitting as judges, into loyal and obedient subjects too frightened to resist the commands of The Big Man Upstairs. Thus, dissension is made out to be deadly, and the rule of law is subverted into the rule of “kinetic activity,” now including torture and cruelty.

                The problem being, of course, that they’re manufacturing false consent, and nobody likes being fooled. Are the various attempts to jack our shared narrative beginning to lose their “magical” effect as we see through them? You know, like the “flashy thing” in Men In Black.

                David Shuster and Rep. Weiner discussed this Monday, 12 Oct. on The Rachel Maddow Show:

                [SHUSTER:] AHIP didn’t produce this report themselves. They paid the firm PricewaterhouseCoopers to do it for them. It’s worth noting that PricewaterhouseCoopers has a history with this sort of thing. In the 1990s, when the federal government was thinking about taxing tobacco, PricewaterhouseCoopers was hired by the tobacco industry to produce a report warning of the perilous economic dangers of a tobacco tax.

                Now, the America’s Health Insurance Plans wants to warn of the perilous economic dangers of health reform they called-you guessed it-

                PricewaterhouseCoopers.

                Joining us now to talk about how the health industry may have shot itself in the foot with this report is Democratic Congressman Anthony Weiner of New York.

                And, Congressman Weiner, it’s nice to see you again.

                REP. ANTHONY WEINER (D), NEW YORK: My pleasure. Thanks.

                SHUSTER: Congressman, first of all, the report assumes no behavioral changes whatsoever in response to the new propose policies. That seems like a dead giveaway that this report is flawed. But what’s your view?

                WEINER: Well, the one behavioral change we are clearly not going to see is the insurance companies aren’t going to suddenly start saying, “You know what, we are going to stop making 30 percent profits and cut it down to 10 percent or 5 percent because of this bill.” You know, they unwittingly did this but they made the single best argument I’ve seen in a while for why you need a vigorous competitor for the health insurance industry, namely, the public plan. They are freely saying that it doesn’t matter what you guys in Congress do. We are going to keep raising our rates, raising our rates.

                You know, there is a word for this. It’s called chutzpah. They are, right now, on the eve of this vote, saying, “You know what, since you didn’t public a public option in, we are going to raise the rates” in their own calculation, “by 111 percent.” They really do seem to have no shame about the way they’ve perceived, but many of my colleagues saw this report and are responding in exactly the opposite way that I think the insurance industry thought we’d respond. When health industry lobbyists attack

                Is PWC the go-to firm for jacking debates? Is the same effect Weiner describes happening in the judiciary, or just with Judge White?

  3. DWBartoo says:

    Thank you, bmaz.

    And, thank you, Judge Jeffrey White.

    Another judge is adding his voice of concern … about the rule of law.

    However, as perris suggests, will there be any teeth in it … especially, when push comes to shove, if Congress fails to support the judiciary? (Presumably ALL members of Congress believe that they would be great Presidents, which is a bit like the good Americans who want no encumbrance on the rich because these good folks believe they too, will be rich … someday and will then want the same “opportunity” of maximizing those riches to the “fullest extent permissible under the law.”)

    I suspect that even lawyers can only speculate …

    Ain’t no sure thing about any of this, I reckon.

    DW

  4. BoxTurtle says:

    This is excellent. The government must feel surrounded. White gaveled them thoroughly, the 9th has already sort of rejected their position and will likely deal with this swiftly if the government actually files something.

    The government knows this is a loser, their goal is delay and this hits right at the heart of that goal. This could be in the hands of the Supremes by the end of the year.

    My predicetion: A rather anal-retentive appeal will be filed with the 9th at the last possible moment. The 9th will deal with it rapidly, it’ll go back to White and White will order the documents be turned over again. An emergency appeal will be filed with the Supremes that won’t be decided until next spring at the earliest.

    Boxturtle (Decision should be good breakfast reading for Judge Walker)

  5. TheraP says:

    Your post is a thing of beauty, bmaz! So clear. ‘Course you had a thing of beauty to work with in the judge’s order.

    I’m beginning to think that the only hope some things will EVER be pried open and looked into lies within the courts – in the hands of a few judges. Other than that, I’ve gotten pretty disillusioned. Which is sad as so much has gone totally astray from our constitutional ideals and protections.

    • bobschacht says:

      Not just a few judges– proper credit is also due to EFF and other advocacy groups such as the ACLU, who filed the suits that these judges are ruling on. Without those suits, and the effective briefs filed by EFF and the ACLU, we would get nowhere.

      Bob in AZ

      • TheraP says:

        How right you are, Bob. I stand corrected. But I guess I was thinking that just our judicial system (and only some judges) – within the three branches – can be trusted with our Constitutional rights and restoring the Rule of Law at the moment. Thanks for that addition, though. And I certainly agree that unless suits are brought, the judges can’t act.

  6. scribe says:

    I don’t see this as a great victory for truth, justice and openness.

    Rather, this is a procedural favor to the government. Let me explain.

    Normally, when you want a stay pending appeal, you start off going to the trial court and asking for a stay, saying there will be irreparable harm to your party if the stay is not granted until the appellate court can decide it. That’s the rule.

    The appellate court will – will – bounce you if you come to them first asking for a stay (without having gone to the trial court). The reasons for that are two-fold. First, the appellate court does not have jurisdiction over your case unless and until you file a notice of appeal. In federal court (as here), the notice of appeal is actually filed in the District (trial) Court and operates to deprive the District Court of further jurisdiction over the case and simultaneously transfer jurisdiction to the Circuit. Note that the Notice of Appeal is a one or two page form that just says “please take notice that the government appeals from the judgment of the District Court.” That’s all – no great thought involved. Second, even if the Circuit had jurisdiction over the case (which it didn’t because there was no notice of appeal filed), it only grants a stay of the District Court ruling/order in the cases where the District Court denied the stay to begin with. This, because the standard for granting a stay is pretty similar to the standard for granting an injunction

    So, this business of seeking a stay in the Circuit without first having (a) filed a notice of appeal and, more importantly, (b) seeking a stay in the District Court and having been denied would look like but really isn’t a rookie lawyering mistake. This is, on the spectrum of things, a wickedly bad rookie mistake because the mistake exposed your client to all the irreprarable harms that you said the stay would avert – the judgment of the district court is there in full force and can be executed upon – until such time as you could unscrew yourself with the aid of the court and get that stay.

    The logical problem with this all being a rookie mistake is twofold – the government lawyers on this case are not rookies and this was not a mistake. They are not the guy in the local US Attorney’s office whose cousin-in-law is the brother of the governor or something and who got the job solely on the strength of that (there’s one in every office) and, as a consequence, spends his entire career defending the government against appeals from the denial of social security benefits (someone’s got to do it) and getting yelled at by District Judges for blowing deadlines or being unprepared. No. These are the top attorneys in DoJ defending one of the most precious, secretive, radical and deadly-to-the-Constitution programs ever invented and defending the wholesale reconfiguration of the government into the corporate state. If I, an attorney who’s so bad at the business of getting clients and collecting my bills that I’ve lost money the last couple years and spend no time in federal court, can recognize the “errors” in their stay applications and why, you have to believe that these hotshots (who live in federal court)knew exactly what they were doing and why.

    Back to the stay. Now the problem becomes time. If the screwup in going first to the Circuit took longer than a few days, it is entirely possible (depending on rules I don’t have handy pertaining to motions for reconsideration and for a stay) that the time within which the government could have moved for the stay in the District Court would have already run out. Let’s assume (I don’t know) that the time for seeking a stay in the District Court is 10 days. The combination of waiting to file until the deadline for compliance in the Circuit and then the Circuit getting around (quickly, in this case) to deciding it could have made it impossible for the party to then come back to the District Court and ask for a stay – they might have been out of time.

    The Circuit moved the time horizon for them. A nice courtesy.

    Then, the District Court said it wanted nothing to do with this. As noted above, it did deny the stay in pretty snarky terms. But it also gave the government more time. It also noted that there is pending legislation and so on. But, more importantly, as noted above, the essential predicate for coming to the Circuit and looking for a stay is that (a) the District Court denied your application for one but you still think you need one and (b) you filed a notice of appeal.

    The District Court’s noting there was pending legislation and so on was both an expression of exasperation with the government’s chicanery, an expression of its own helplessness before the legislation (i.e., FOIA is purely statutory and, if Congress changes the statute, the Court is stuck with it), and a hint to the government (as if it needed one) that it would likely get farther in Congress than in the courts.

    So, what will happen Friday is that the government will file an notice of appeal, blow/contemn the deadline for disclosure, and file a new application in the Circuit court for a stay, noting that the other essential predicate of the stay – denial in the District Court – now exists. They bought themselves two weeks or so with this little dance, in exchange for taking a bit of yelling at them from someone – the District Court – who’s helpless to make the government do anything, let alone comply with its orders.

    And in the meantime, the Senate has come back into session. How much you want to bet Lieberman will insert another FOIA exemption into the pending bill, right next to the one allowing Obama to hide the torture tapes that he inserted the other day? Or maybe Jeff Sessions will get some points with the Admin for carrying their water on this.

    Count on this, though. Those lobbying documents will, in the meantime, suffer the same fate as the torture documents that were supposed to be produced in response to the FOIA suit before Hellerstein – they will be intentionally destroyed (after being lost in a SCIF). They will never see the light of day.

    • bmaz says:

      I am with you on much of this, but not the “buying themselves two weeks”. Whatever time they have, White shortened it significantly by ruling as he did. It is not as if they lodged nothing in the trial court once bounced by the 9th, because they did. They were going to wait for this ruling then seek a stay; White jumped them by ruling on both at the same time. Secondly, you always undersell the balls of the 9th. They may well grant a stay; if I had to bet, I bet they do. But it is possible they don’t. If there is one Circuit in the country that is capable of jerking the government’s chain hard, it is the 9th. And White has handed them a perfect template to do so if they are at all so inclined.

      • scribe says:

        What you say is all true, and all irrelevant.

        Lieberman or Sessions will insert some language into a pending, must-sign bill which will do to this case what they already will do (once that must-sign is signed) to the torture tapes FOIA case coming out of Hellerstein’s courtroom.

        In other words, if the law is against the government, the government will change the law.

        • bmaz says:

          Maybe, but I am not so sure. The pictures are not just an existential problem that will be noticed by a limited group of weedy people like us, Greenwald and maybe Lichtblau/Risen. That is, quite unfortunately, the status of telcom/warrantless wiretapping at this point. As long as the immunity holds up, the telcos are protected and this thing stays under wraps (al-Haramain is the only other arrow we have in our quiver) and that bit about repealing immunity is a pipe dream; never will happen. The torture pictures, on the other hand, have worldwide appeal and are visceral. They are killers. So, for that reason, I am not so sure your fears about legislation are certain to come true.

          And Jeffrey white has done all he can do; whether it sticks or not is not in his hands. There are not many heros and good guys in this giant pile of shit we have on our hands, but White is one in my book. My hat is off to him.

          • bobschacht says:

            The pictures are not just an existential problem that will be noticed by a limited group of weedy people like us, Greenwald and maybe Lichtblau/Risen. That is, quite unfortunately, the status of telcom/warrantless wiretapping at this point.

            I tried commenting on this earlier, but ran afoul of my university’s mailgate.
            Anyway, let us not forget Jon Pincus and his Get FISA Right group on Facebook, with more than 2,000 members. Jon occasionally posts diaries on The Seminal, too. Fortunately, we’re not the only ones who care about this.

            Bob in AZ

        • knowbuddhau says:

          With respect to bmaz, that’s what I’m saying, there at the end. The gov’t will change the rules to win even when they lose.

          Our fellow citizens, acting under the color of law and asserting the Nuremberg defense with regard to any qualms whatsoever, are just machining they ways to dominance: on the battlefield, in the interrogation room cum torture chamber, at the Fed or Treasury, or in the courtroom, what’s the difference? All problems are attacked with ever more external power. Even our national balance sheets weren’t just cooked, they were nuked.

          These kinds of glitches in the Matrix reveal the underlying myths. Commercials don’t always make sense, they just have to move the product, right? The health care reform myths don’t make any sense, but they’re sure moving people. And the more irrefutable the myth (not True, that’s different), the better, eg, no one can prove Obama doesn’t really want to kill grandma.

          This is why I say myths, and the passions they evoke, have more power to move electorates, to shape political events, than even the most accurate facts do. And it’s why I agree with scribe. When the facts don’t fit the narrative, the facts will have to change. (Cf Bush admin’s approach to science.)

          The Right uses the power of myth to the point of abuse. How does the Left use it? Or do we just ignore it, leaving us open to getting jacked? Is this why congressional Dems fall for GOP fear-mongering almost every time?

          • bmaz says:

            So what do you propose as an altrnative, just giving up? For my part, if the NDCA is doing all they can, that is far better than nothing. You take your victories where you can find them and keep plugging.

            • Mary says:

              I think this is right – you have to take your victories where you get them. I guess the downside of being cynical is sometimes you underplay victories, but having the Judge in this case so clearly lay out the equities is a victory, IMO. I’d just like to see a little more Taitzing when it is has been more than called for.

          • worldwidehappiness says:

            “The Right uses the power of myth to the point of abuse. How does the Left use it? Or do we just ignore it, leaving us open to getting jacked? Is this why congressional Dems fall for GOP fear-mongering almost every time?”

            Precisely!

            Bush spread the myth that the government is here to protect the people, and the Dems went along for short-term safety rather than argue the truth that the government is to protect the constitution and that the threat was way overstated. The Dems should have made the argument that sacrificing liberty for security is a bad move.

            Now the Dems are living with the consequences of adopting the Bush/GOP myth – a momentum the Dems find too hard to turn around.

            But can you imagine if the Dems had have made the “liberty is more important argument”? Imagine the ammunition they would have had to demolish the GOP:

            1. 4,000 American soldiers dead.
            2. Torture photos.
            3. Telcos being treated as arms of government.
            4. Detention without trial.
            5. Bush and Cheney impeached.
            6. People in jail for destroying evidence.

            Etcetera. It would have been spectacular and remembered forever.

      • james says:

        And are you with scribe that the documents will be disappeared in an obstruction of justice worthy of Nixon’s 18 1/2 minute gap and Cheney/Bush’s irretrievable emails?

        • bmaz says:

          No. Because the telecos have documents and there are people there with contrary testimony that could possibly surface some day. That is a situation much less likely to see a destruction of documents by the government in my opinion. Also, Obama is not much better than Bush, but I don’t think he and Holder will spoil the evidence; I will give him that little benefit of the doubt.

          • james says:

            I hope you’re correct. It would be nice to have faith in some level of the justice system as it’s evolved recently.

  7. scribe says:

    BMAz – off topic, but worth reading.

    Pontiac could have saved themselves had they come out with these. It’s what every Favre fan needs to drive to the tailgate party.

    Oh, yeah. In Mangidiot-level secrecy-land, this passes for a “press release trumpeting a decision heralding a (temporary) resolution in the ongoing quarterback controversy“. Then again, given the state of the real estate market, he might be looking ahead to the end of that long-term deal and figuring “by the time my current deal is done, I should be able to sell this dump.”

  8. Mary says:

    I think this is going to be interesting. As best I understand the FOIA process, there is some kind of a statutory grant that gives the Sol Gen 60 instead of 30 days to decide whether or not to appeal a FOIA order, but nothing in that statutory grant provides for any stay of the production order pending that decision. If I follow them,Gov is trying to somehow argue that the mere fact of the statutory grant of extra time to decide whether or not to appeal is somehow a sepearate and severable grounds for any production order to get a temporary stay until the decision is made, without otherwise having to meet the standardards for a temporary stay (although they throw around references to irreparable harm now and then bc it apparently *sounds right* to them).

    So instead of ever asking for a stay of the production order pending appeal – iow, Kagan de-academizing herself and getting some dirt under her fingernails with a decision in advance of her 60 days that she IS going to appeal – they are saying that it is really important that they get to use up the 60 days bc of irreparable damage, but, um, well, that doesn’t necessarily mean they WILL appeal, bc, ya know, golly, they may get legislaton shot down so that it isn’t so irreparable in the meantime.

    The upshot of all the back and forth has been, as scribe noted, that Gov has managed to get a temporary stay through at least Oct 16. The Court, “CONTINUES the temporary stay of Defendants’ disclosure obligations until October 16, 2009”

    The question is, what then. While I like what White did, with basically ruling on a Motion not in front of him (i.e., a Motion for a Stay of the production order pending appeal on that order – as if Gov had decided to appeal the order; vs the motion that is in front of him – a Motion for a Temporary Stay while Kagan consults with Condi about what shoes to wear IF she does decide to appeal) I’m not sure it advances things.

    Even if the 9th is pissed off too, are the really going to set a precedent of letting Judges just pretend there’s a Motion there so they can rule against it? Doesn’t that circumvent the whole point of advocacy? I think it’s fun and it’s nice maneuvering, but in the end I think this is a game of chicken with Gov and the Judge. Instead of telling the counsel – fine, if you aren’t appropriately filing a request for stay pending appeal, here are some sanctions for screwing with my earlier production orders and you get until tomorrow to avoid further sanctions and if you even THINK of saying that there will be irreparable harm, not from disclosing the docs but from not giving Kagan enough time to make up her mind, you better produce her ass in front of me to make that argument to my face, etc. — instead of all that, they got till the 16th. During which time they can disappear more docs like they have been so good at (see, e.g., the Barron declarations) and try to bolster their irrep harm argument and maybe try some additional procedural gimmicking, and since the Cir Ct ruling was without prejudice and the underlying prodcution has not ben moved out to the 16th, they have gained some time.

    Albeit by getting a judge really pissed, but what does a really pissed judge do these days? Look at all the GITMO detainees who have been ordered to be released after shocked rulings detailing a parade of horribles and what has happend? Not one lawyer has been the subject of disciplinary focus by the courts except in the Stevens case. We were on the brink with the Horn case in front of Lamberth, and I guess there’s always a chance he’ll still go there, but basically the media has been fact checking SNL and titillating themselves over Letterman and there’s not much mainstream uprising for the courts to “do something”

    And when you end up making enemies of both Bushco and Obamaco by doing something, all while even Leahy is selling out to Obama, it’s getting to be an awful lot to ask of one Dist Ct Judge somewhere to be the next Judge Keith.

    • bmaz says:

      I don’t see why White cannot sua sponte interpret their filing to also include the request for stay and deny it at the same time in the interests of judicial economy. Beyond that, you are talking about things outside of White’s dominion and control. He has done all he can do here; and don’t forget that he is the judge that ripped the govt a new one and allowed the Padilla suit to proceed too. He is okay in my book.

    • knowbuddhau says:

      Thanks for that counterargument. Here’s what I mean by saying, facts, even judicial orders, matter less than the effect on the polity:

      Albeit by getting a judge really pissed, but what does a really pissed judge do these days? Look at all the GITMO detainees who have been ordered to be released after shocked rulings detailing a parade of horribles and what has happend? Not one lawyer has been the subject of disciplinary focus by the courts except in the Stevens case….but basically the media has been fact checking SNL and titillating themselves over Letterman and there’s not much mainstream uprising for the courts to “do something”

      Sure, they’re saying, what we’re doing is unconstitutional, go ahead and decide against us; we’ll still keep people locked up in the redundant cages of first, a suitably scary label, and second, a prison cell. Well still disappear the documents and create a fake narrative.

      Ultimately, it’s about maintaining that fake narrative that works within the myth of American/Israeli Exceptionalism, despite Obama’s election the goal of which is still to assert full-spectrum dominance. At times, that means there will be ruptures, like the chopped off hands in a medical textbook, eg, when detainees are ordered released yet still held, or when elections are stolen in broad daylight, etc.

      Sure, life’s a stage, esp. politics, but that doesn’t mean a completely fake narrative will do, right? Even pro wrestling has to be minimally believable for the intended audience. Maybe the 9/11 thrall is wearing off, maybe they’ve gone to the “flashy thing” too many times.

      As for advancing things? It may not, in the courtroom, but what about at large?. The effect Rep. Weiner described occurring in Congress (rejecting the AHIP / PWC report’s attempted jacking of the narrative) gives me hope for its spreading to the judiciary.

      My problem is, I know about as much about the judiciary as I do about Australian rules football. Thanks for all the help, y’all.

  9. Mary says:

    Well, I got in a too long winded response that included some time out to make a kitten quit taking advantage of a German Shep, but I was trending to scribe’s pithier – the Executive’s Congressional agency will change the law – response.

    • skdadl says:

      I promise that I’m reading along faithfully; I’m learning, and I wish that I could contribute more substantially, although IANAL and further, IANAA.

      But I just had to say that I have full faith in that kitten.

  10. james says:

    Here’s a question: With all this dancing that’s going on and with all the damage that continues to be done to our constitution and our liberties. why isn’t afterdowningstreet.org or any of the other groups that were so intent on impeaching Bush going after Obama for the same crimes, and in the case of AfPak and this wiretapping, they are the same crimes.

    Any reason we shouldn’t ring the administration’s bell by pushing for an impeachment inquiry? That’ll change their minds about bloggers in pajamas.

  11. DWBartoo says:

    The wheels of whatever they call it grind very, very slowly.

    Once upon a time, there was some mention of the “fineness” of the grinding.

    The slow-grinding continues apace, deliberately, intentionally, with all the best of intentions to usurp power, deny responsibility or shift blame, as always (my lawyer friends, at this juncture, like to throw in the phrase “.. it was ever thus”), but nowadays we have a “situation” akin to the tree falling silently in the woods because no one chances to hear …

    The ultimate “question” regarding those issues which appear to matter to us, is simply this, who, in any position of meaningful authority, really gives a damn?

    The Political cla$$ is, we may reasonably imagine, either totally complicit (or “sufficiently” so)in what has gone on, or it simply doesn’t have a clue.

    Congress either does not appear to care, because it is deeply involved, or else Congress is willfully stupid. Not a promising scenario for substantive “change” or even responsible “accountability”. Given this “reality”, when the “crisis” reaches the crunch point(assuming that it has not been “bought off” or rendered moot by Congressional remaking of the law or laws in question) what, in heaven’s name or the people’s name, will give any of these yet few “game-playing” judges the impression that any limits or restraints of the new “unitary Presidency” will be tolerated?

    The Constitution? That “quaint” piece of paper has no meaning, at all, if those in power do not respect it … because they “have” the real power, the power to destroy.

    Those who seek power are not unlike those who seek money – there is never enough to satisfy their lust.

    Is Mary correct? Is it, our American system of governance, only a “game” after all?

    Doubtless, for many of the major “players”, it is only a game.

    And the truly “clever” enjoy the game immensely.

    There are some consequences for the rest of us, but that is a small matter, of little or no import …

    Obviously.

    DW

    • Mary says:

      Is it, our American system of governance, only a “game” after all?

      I’m not trying to say it IS only a game so much as trying to say that I think they are trying to game the system with what they are pulling and the potential for being gamed is on the table. Whether that’s where we eventually end up is still a ?? (although one that has already been decided for someone like al Rabiah or the Chinese Uighur who was tortured into insanity bc his mother sent him to find his little brother, etc.)

      And with both Congress and Mr. Changling actively making themselves into “warriors” who are battling against law and justice and using all the resources of our military and media – estates that almost make the Presidency and Congress pale these days – to gin up a body count in that battle, it’s not easy to be a good judge these days. It’s asking a lot from someone who doesn’t have nearly the resources and protection of an Obama, a Dist. Ct. Judge having to decide if they will draw the line, knowing how extreme the personal consequences will be.

  12. earlofhuntingdon says:

    Any bets Friday @ 4.00 pm comes round and the government ignores the deadline, or simply repeats, but this time strenuously objects to the lower court’s order?

    This newly-layered defense tactic suggests the DoJ has hired some of the defense lawyers Chris Christie ran up against in mob cases in NJ. Obama’s gubmint really doesn’t want to disclose this information or have this case stand as precedent for further, unrelated disclosures in future. Which is all the more reason a judge like White concludes that the public interest – and current law – demands disclosure.

    That’s a segue into whether Reid or Pelosi will shortly introduce a bill amending FOIA (not FISA) that legislates an outcome Obama seems shortly to be denied in federal court. That’s a bill Obama can be assured will have bipartisan support. Hallelujah.

    • Mary says:

      I’m going to bet that on Friday they show up with something that finally complies with FRCP 62 and puts Kagan on the line with making the decision to appeal.

      But with that, I think it is going to leave just exactly which parts up in the air. If Kagan is really planning on arguing that Congress is a collaborative agency of the Exec branch when it comes to passing legislation – I wanna see that.

  13. earlofhuntingdon says:

    As for simply ignoring White, it’s likely to result in contempt ruling. I suspect both White and the 9th Cir. have had enough. But I’m afraid Scalia, Alito, Roberts and Thomas would love to get this case and put White and the 9th’s quaint notions of limits on executive power six feet under.

    • DWBartoo says:

      Yes, between the compromised Congress and the twitchy True-Believer core at the Supreme Court, the lesser courts are pretty much swinging in the breeze by their lonesome selves …

      That not even a single facet of the “situation” has, as yet, piqued (if that is the proper word) the interest of the ever-cheerful and perky fourth estate, insures that the folks out yonder will continue happily along believing everything is just swell, now that the sturdy, honest and articulate Obama administration is in charge, just so long as Jack Bauer is not kept from his rounds by empathic “perspectives” which haven’t signed on to the endless war on (hey! what is it this week? Drugs? Terrorists? Acetone? Oh right, this week the Endless War’s all-seeing-eye focuses on “reason”, which is the ultimate “suspect” and the actual “target” of the whole “endless” bullshit.

      After “they” nail reason to the wall, “they” intend to fix tolerance and understanding.

      Can’t have those things without a permit and strict supervision.

  14. alinaustex says:

    Will any of these rulings efffect the telecom executive that went to jail under trumped up chargers -because he refused to comply with the bushies illegal wiretap program ? Wasn’t his name Naccio, based in Denver , the CEO for Qwest ? If that allegation is true then in my book this gentleman is a hero for standing up to the bush/rove DOJ …

  15. ecthompson says:

    Marcy –

    You are talking in code. Help me!!

    NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF

    NDCA -?
    EFF – ?

    I’m so clueless.

    • MaryCh says:

      Well ec,

      we don’t want anyone to be SOL around here:

      NDCA = Northern District of California Federal District (trial court level) Court

      EFF = Electronic Frontier Foundation, a public interest watchdog similar in ilk to the American Civil Liberties Union (full disclosure: I’m a card-carrying member)

      FOIA = Freedom of Information Act – statute providing for request for public records (born of Watergate, with a growing number of exceptions ever since)

      • earlofhuntingdon says:

        It would also be useful to type such things into g-o-o-g-l-e and see what comes up. A lot of crap, to be sure, but with a little experience, that gets easier to filter out. Wikipedia, for example, is hardly the last word on any subject, but it is often a good place to start for definitions, preliminary background, etc., which makes reading more accurate, in-depth sources easier.

  16. AlbertFall says:

    Sorry to be dense amount the import of this, but can someone help me get it?

    So the DOJ did not ask for a stay, but filed something asking the judge to take extra time off the clock. The judge said no.

    Are the DOJ attorneys so bad they don’t know how to ask for a stay?

    Or is this something where they are putting on the front of pretending to litigate in favor of the Bush years, while throwing the fight?

    • bmaz says:

      Neither. They were intentionally playing disingenuous games. The normal request would have been to request the stay at the time they refiled in the District Court after the Circuit appellate court told them they had to finish things up and follow procedure at the District trial court level befor approaching the appellate court. But the government did not do that, instead they made their filing and, presumably, thought they would play that out for a while and then start the request for stay process. The district court then said effectively “No, we are going to treat this like you did everything up front like you should have, and we are denying both your substantive motion and the request for stay you could and should have made.”

      • earlofhuntingdon says:

        Yes. They’ve added an additional layer of delay, pending their decision whether to appeal. That the government will appeal seems a foregone conclusion. The court is trying to cut out the additional layer of delay, and to set up its decision for the inevitable appeal to the 9th Circuit.

        Obama’s DoJ, like Bush’s before, is trying to turn the court system into a game of endless pingpong that avoids substantive decisions on the merits, which they are likely to lose. Same with forum shopping, trying to get cases into the conservative 4th or DC Circuits, and settling privately when all else fails. White is saying that’s not how the game is played in his courtroom. He can’t speak for any others, but the 9th Cir. can.

  17. LabDancer says:

    bmaz – I don’t know if this understanding on my part constitutes a slightly different read than yours, but anyway:

    As I understand, the feds earlier–before filing the appeal with the 9th & before advancing on their precipitous motion for a stay pending that appeal–filed a motion for a stay of 60 days for the SolGen just to “consider” an appeal. So what I feel must have been before Judge White in this brief order issued Oct 13 was that earlier motion.

    If so, that would mean the feds could/would take the positions that:
    [a] they got turned down by the 9th just for being precipitous, supported by the clear indication in the order from that of it being “without prejudice” to their pursuing a ‘proper’ motion, in the sense of a motion filed after properly pursuing a stay pending the hearing of an appeal from a filed notice of appeal; and
    [b] they have YET to file a motion on said ‘proper’ pursuit.

    Sooooo…I would anticipate the feds filing a motion late Friday Oct 16, and wanting the hearing of that motion to be at some ‘reasonable’ time down the line, possibly with a suggested filing deadline for the other side [out of ‘courtesy’–ha!], reserving for the feds a date for reply to same [‘it’s only fair’], with a suggested, nominally reasonable, actually quite extravagant suggested date for oral argument in, oh say, mid-December.

    And from there, of course, on to pursuit of a properly-[tho last possible minute of last possible hour of last possible day] motion for stay filed with the 9th; which by the suggested time-table would take place in oh say, February, 2010.

    Okay, I’m making this a prediction. I realize I’ve already committed the dent in Maddog’s hubcap [Thx, ‘dog] to an earlier bet, but in the meantime I’ve broken that bet & repayment of the dent & the air inside the space for the dent into tranches & taken the whole mess down to Moody’s for a rating, & it’s come back AAA. So again: this bet is of a Triple AAA priority repayment on the first repayment instalment of the airspace for the largest determinable dent in Maddog’s hubcap.

    • bmaz says:

      As I understand, the feds earlier–before filing the appeal with the 9th & before advancing on their precipitous motion for a stay pending that appeal–filed a motion for a stay of 60 days for the SolGen just to “consider” an appeal. So what I feel must have been before Judge White in this brief order issued Oct 13 was that earlier motion.

      No, that had been denied previously. The govt. then noticed appeal to the 9th (but did not actually file appeal), did NOT seek a stay at the District trial level and then sought an emergency stay in the 9th. The 9th took one look at it and said get out of here; i.e. denied and remanded with leave to seek a stay in the 9th only after having sought a stay on appeal back at the District level. The govt. then went back to White and STILL did not seek a stay on appeal, but instead renewed their request for a stay while they decided whether to appeal or not. In ruling on that request, White denied that and sua sponte treated it as if it were a simultaneous request for stay on appeal and denied that too.

      • LabDancer says:

        Thanks for the clarification. OTOH it makes me feel a little better that the Fed team is even more out to lunch that the public record would suggest, & supports them being embeds; OTOH this is really gawdawful lawyering, such that it brings to mind recent pscych studies showing humans, when blindfolded, or when dropped into wilderness without compass, map or knowledge of the terrain, will end up walking in circles [as distinct from circumferentially].

    • Mary says:

      I don’t think you are necessarily reading what Gov has done differently than bmaz, but I think Judge White is saying that he is looking beyond that old order. And I think you and I end up the same place, that on the 16th they will try to get something in front of the Court that complies with FRCP 62 so they can get that ruled on and then move to Ciruit.

      In White’s order, he says that after he made his SJ rulings, Gov asked for the temporary stay while they get contemplative (we can’t decide if we want to appeal or not) over filings an appeal. At that time, though Gov had not filed for an appeal, so “As no appeal had yet been filed, the Court found that a motion to stay pending appeal pursuant to Federal Rule of Civil Procedure 62(c) would have been premature and was not properly before the Court.

      Then on Oct 8 Gov does go and file a Notice of Appeal (which would have meant there was now an “appeal pending” as required by FRCP 62(c) for the Dist Ct to consider a stay) but on the 9th Gov goes, not to Judge White but to the 9th Cir, and asks them not so much for a stay of White’s overall order pending their appeal of his overall order, but instead seems to ask the 9th for a “We Can’t Decide If We Want to Appeal or Not” stay, arguing that since FOIA rules give them 60 days for Kagan to decide if she wants to appeal (and ignoring they had filed a Notice of Appeal) they shouldn’t have to produce anything while Kagan thinks it all over.

      The 9th doesn’t touch the “Kagan Can’t Make Up Her Mind” issue, bc they just go by the rules of procedure and after the Notice of Appeal was filed (which should have made an appeal pending) they say that Gov needs to go to White first, then come back to them.

      But when Gov goes back to White, they drive him bonkers. Bc they are STILL not asking for an FRCP 62 stay pending appeal, even now that they have filed a Notice of Appeal. And so what White does is to go ahead an rule on a stay pending appeal, even though there is no such motion before him.

      At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending ppeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

      Now – as much as I like him doing that, I don’t think he can. So I think that what will happend on the 16th, as per my comment at 44, is that Gov will probably then come up with a compliant motion to put before him. If so, he will probably be pissed and may even give a bench ruling – but then they will go back to the 9th. I don’t think the 9th is going to treat this order as disposing of the issue, since it is not really before the court and it would set some weird precedent I think

      • bmaz says:

        I tend to think he can interpret their lame renewed contemplative stay request as a de facto Rule 62; either way though, even under your scenario, that gets done on Friday. If they don’t, I see no reason White and the 9th cannot consider the stay issue waived for failure to plead. If they are going to go back to the 9th, they have to request the stay properly from White. And he is making them look like the jackasses they are.

      • earlofhuntingdon says:

        Obama’s DoJ views its job as expanding the possibilities of delay, to avoid the need ever to disclose the requested material or have this case decided on its merits. It seems to be arguing, without explicitly saying so, that it ought have to comply with an order to disclose if Kagan’s 60-day time to consider and appeal hasn’t run. One would think the two would not need to be coterminus and the rules don’t appear to require that they be. Obviously, Judge White thinks they needn’t be.

        Is Judge White’s decision on how he would rule should a request have been filed an acceptable extension or application of current rules? Or is he being as over the top as the government that he’s trying to hold to the rule of law?

        • bmaz says:

          No, I think he is setting them up for what Mary has said and what I elaborated on @72. He was thinking ahead and forcing their hand and doing so on his compressed timetable. He is now in a position to rule from the bench if they bring the proper motion Friday.

      • LabDancer says:

        “as much as I like him doing that, I don’t think he can”

        I’m not losing sight of bmaz’ response at 72, but I’m inclined to the view that you are strictly correct on this but leavened by as bmaz points out–& I think we all agree–that the fed side has its ass stuck so deep in the doghouse on this, that the issue, even if it comes up [& I think it will, because raising every conceivable & a bunch of stuff that isn’t & trying to invent more, seems pretty clearly to be the fed approach here] won’t result in any sort of definitive opinion from the court.

        It looks like this fed team, like others, was & remains prepared to wrap sticks of nihilistic dynamite around every point in the procedural rules to force the other side into bomb disposal duty; and now some judges are pitching in on bomb disposal. I can sort of see how there may have been some deal between the two administrations resulting in allowing Bushie embeds to knock themselves out with this approach, but it’s difficult to see how this can go on for any length of time without sullying the current iteration of the DOJ in ways that can’t be retrieved, certainly not by a villager like Holder, more importantly not by Obama, & ultimately maybe not ever. If the last, or even the last two, it would mean the entire basis for having a DOJ at all would be in question.

        • Mary says:

          without sullying the current iteration of the DOJ in ways that can’t be retrieved

          Having DOJ devoted for all these years to the continued detention in depravity of a man that a Fed Dist Ct Judge has now said publically, in unclassified portions of an opinion, was the subject of enhanced interrogation KNOWING Of his innocence and specifically to use those techniques to force an untruthful confesssion – how do you retrieve from that?

          I swear they make Fitzgerald’s mock up re: Burge look like street theatre.

  18. fatster says:

    Immunity, anyone?

    Judge closes Blackwater trial to public
    Prosecution of five Blackwater employees could be thrown out over immunized statements

    (Blackwater employees charged with killing 14 Iraqis in a public square in Baghdad in 2007.)

    Link.

      • fatster says:

        I understood that, Peterr, but thanks for making sure I did. I’m concerned, as you seemed to hint you are, that this is a precursor to this case just being derailed altogether. BTW, is there no way around the immunity cloak? Thnx.

        • Peterr says:

          The only way around is if the WaPo appeals Urbina’s ruling, and can convince the Appellate court to overturn it.

          From the WaPo’s account, it seemed as if Urbina was sympathetic to the argument, but this early in the proceedings he wants to keep things close.

          The judge added that he did not see a way to partially open the hearings because they will deal heavily with grand jury information. Grand jury proceedings are generally kept secret.

          The judge said the court would work harder to ensure that future hearings were placed on the public docket.

          Closing a hearing is one thing; closing an entire trial is something else.

          It bears watching.

  19. Peterr says:

    I made this comment in Marcy’s initial “Blob” thread, and have been mulling it over once again in reading this thread. Any thoughts, bmaz and others, on the specific attorneys involved here at the DOJ? Specifically . . .

    From Marcy’s post:

    it is a fascinating comment on the state of separation of powers that Congress would be described by the executive branch as a mere appendage to the executive branch.

    I’m curious about the attorneys that wrote this motion, so I went to the DOJ website and searched a bit.

    Both Douglas N. Letter and Scott R. McIntosh have a lengthy history at DOJ. Letter, for instance, was working at the DOJ in 1989 with Solictor General Ken Starr, filing a brief with SCOTUS asking them to deny cert in a petition on a case against the CIA. From the brief:

    The Central Intelligence Agency (CIA) opened and read a letter petitioner mailed from New York City to the Soviet Union in 1963. Petitioner filed suit against the United States in May 1988 under the Federal Tort Claims Act, 28 U.S.C. 1346(b), for damages based on an alleged invasion of privacy that occurred when the CIA opened his letter. The question presented is whether the court of appeals correctly upheld dismissal of petitioner’s suit on the ground that New York does not recognize a common law action for invasion of privacy.

    (Cert was denied, btw)

    McIntosh, for his part, worked on appellate filings as far back as the Reagan years, appearing on this one alongside SG Charles Fried and AAG John R. Bolton. (Yes, that John Bolton.)

    Each of these two also appear on other filings by the DOJ over the years.

    Perhaps the most interesting place these two names appeared, however, was when they appeared alongside each other in a Sept 12, 2006 Press Release:

    Attorney General Alberto R. Gonzales Honors Employees and Others at the Department of Justice’s Annual Awards Ceremony

    WASHINGTON – More than 230 Justice Department employees – along with 42 other individuals, many of whom are federal employees and law enforcement officers – were honored today at the Department’s 54th Annual Awards Ceremony at Constitution Hall in Washington, D.C. The Attorney General’s Annual Awards Ceremony provides an opportunity to recognize the extraordinary accomplishments of a number of U.S. Department of Justice employees as well as individuals from outside the Department. . . .

    Scrolling down past the big awards, we come to this:

    Other Distinguished Service Awards were received by employees that spearheaded the Department’s efforts in the appellate courts and Supreme Court in successfully defending the constitutionality of the Solomon Amendment, Rumsfeld v. FAIR. Award recipients from the Solicitor General’s Office include Edwin S. Kneedler, Deputy Solicitor General, and Irving L. Gornstein, Assistant to the Solicitor General. Award recipients from the Civil Division include Douglas N. Letter, Appellate Litigation Counsel; Scott R. McIntosh, Special Counsel, Appellate Staff; Joseph H. Hunt, Director, Federal Programs Branch; Vincent M. Garvey, Deputy Director, Federal Programs Branch; and Gregory G. Katsas, Deputy Assistant Attorney General. Also awarded was Mark T. Quinlivan, Assistant U.S. Attorney, District of Massachusetts.

    Why am I not surprised that folks who worked for Bolton, Starr, and Olsen, and won applause and honors from AGAG have written a motion like this one, erasing the separation of powers and bolstering the immunity of the executive branch from any kind of oversight, let alone accountability . . .

    Are these two Bushies that have burrowed in at DOJ?

  20. BayStateLibrul says:

    The DOJ…

    from Edith Wharton

    “When people ask for time, it’s always for time to say no. Yes has one more letter in it, but it doesn’t take half as long to say.”

  21. Mary says:

    For some of the non-lawyers, a little more summary of what is going on.

    In a Freedom of Information Act request (FOIA) but Electronic Frontier Foundation (EFF) asking for info about exchanges between telecom lobbyists and others, and DOJ and others and Congress and others, relating to the telecom immunity legislation, Gov produced some docs and held a whole lot back for various bizarre reasons. EFF asked for Summary Judgment (SJ) ruling that the docs not turned over had to be, and Gov’s excuses were not valid under the FOIA legislation – while GOv asked for SJ that they did not have to turn docs over.

    On September 24, 2009, Judge White issued an order granting SJ for EFF (yeah – happy dance) and denying SJ for DOJ, and requiring that docs now being withheld by GOv be turned over on Oct 9.

    Ok – a bit of a sidelight here. Generally, under Federal Rules of Civil Procedure (FRCP) Rule 62,

    Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 10 days have passed after its entry

    when a Judge enters an order requiring some kind of action, the Judge needs to give at least 10 days before requiring compliance with the order, so the turnover on Oct 9 would fit the bill. It’s more than 10 days after the order.

    Why the 10 days? Well, that’s so that if someone is really upset over the order, they can try to get the order “stayed” while they appeal it. Generally, you have longer than 10 days to decide whether or not you want to appeal an order (I don’t know FOIA law, but Gov says under special FOIA statutes they have up to 60 days to decide whether or not they want to appeal). Appealing an order, though, does not relieve you of the duty of complying with the order. To escape from complying with the order, you have to get a “stay” which prevents the order from going into effect.

    So if you really think you are right and you really are worried about having to comply with an order – or if your client wants to fight every damn thing – then making sure an order doesn’t begin taking effect for 10 days gives you time to ask for a stay. Under the rules of procedure, to ask for a stay you have to already have your appeal “pending” and you have to first go to the trial court judge (even though that’s the judge you just lost to) to ask for that stay and it’s only after he rules against you (which almost invariably happens) that you can ask the Circuit Court to stay the order. Whoever you are asking, the standard is pretty high to get a stay and there is a four factor test:

    (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies

    Ok – so back to the time line.

    September 30, 2009 Gov files – well, not an appeal (so they can’t ask for a FRCP 62 stay yet, from anyone, bc they don’t have an appeal pending) but instead a Motion asking the court for a 60 day stay of its order while Obama’s Solicitor General, Kagan, makes up her mind whether or not she wants to appeal and if so, which/what. A good guess is that this Motion was filed just to kick the Oct 9 production date out further, since judges usually allow for a briefing schedule of some kind with Motions filed and then would typically stay the production on the 9th until the resolve the Motion of the 30th and that could easily have taken a couple of weeks or more.

    Except – – – Judge White didn’t need a lot of time to resolve the Motion of the 30th. By Oct 7th he was ruling against that motion trying to get a 60 day stay. In addition, he specifically said that there was no “appeal pending” as required by FRCP 62 for him to grant a stay under that order (usually, you start an appeal by filing a “Notice of Appeal” and nothing had been filed)

    No doubt seeing this ruling coming and still trying pretty desparately to delay, Gov on Oct 6th asks for leave of court to file (at this stage, this is not a motion that Gov can file without court permission) a Motion for Reconsideration of the court’s SJ motions from the 24th. This also gets denied by the Judge on Oct 7.

    So on Oct 8 Gov finally gets around to filing a Notice of Appeal. Which would ordinarily mean – uh, yeah, Kagan’s made up her mind, we are appealing! But then on Oct 9, instead of going to the Dist Ct and now filing a request for a stay that complies with FRCP 62’s rules that an appeal has to be pending when you ask the Dist Ct to stay its order, Gov skips the Dist Ct and files a request with the 9th Circuit to stay the Dist Ct order – and also in that request seems to be mostly asking for the 60 day stay to make up their mind about appealing too, instead of saying we ARE appealing (as per our Notice) and we want the order stayed during the appeal.

    On Oct 9, the Circuit Court predictably says, “we aren’t even looking at your motion” bc under the FRCP’s you have to go ask the Dist Ct for a stay before you come to us.

    So – we are now at the date when Gov was ordered to produce and nothing is produced. But Gov isn’t looking at sanctions for not producing, instead it is getting until the 16th to produce.

    And the Court is saying – even though you Notices an Appeal of my SJ rulings – what you filed in the 9th Circuit wasn’t even about those ruling and instead, “Defendants specifically appealed the decision of this Court not to grant a temporary 60-day stay pending the decision by the Solicitor General whether or not to appeal.”

    So the court is pointing out that it has noticed that the substantive order, the one to produce documents on Oct 9, is the only order that has been the subject to a Notice of Appeal, but the filings with the 9th cir were about a different order (the one denying a 60 day stay)

    So the court denies Gov’s “renewed” motion for the 60 day stay and resets production for Oct 16 (so Gov has won that much more time at least) The Judge also says – hey, since you should have already filed with me by now a Motion to Stay the substantive Order that you have Noticed for Appeal, but you haven’t, I don’t want more Mickey Mouse on the 16th, so I’m going to pretend that you did file that Motion to Stay and I’m going to rule on it – what the standards would be.

    Now I don’t think he can do that, but what he does is something that lays the goundwork for a bench ruling if Gov does try to show up on the 16th with a Motion for Stay instead of producing. We’ll see.

    The real nuts and bolts IMO is going to be what he does if Gov has no docs on the 16th. That will be the interesting issue. If the attorneys don’t have anything and don’t get sanctioned in a personal way – then all this will have been just so much paper flying around. If some attorneys finally start getting brought to account – then the system may begin to re-asset itself.

    • earlofhuntingdon says:

      Thanks. A lot of work in a busy day.

      Judge White may suspect that the most likely thing the DoJ will bring to court on the 16th is its Motion for a Stay of his order to disclose, which should have been filed by the 9th.

      The DoJ has already succeeded in gaining a week’s delay – presumably a principal goal – and must hope for more delay. Judge White has just told them that he won’t agree to their Motion to Stay, if that’s all they bring with them on the 16th, and implied that sanctions may follow if they haven’t also brought some portion of the requested documents on the 16th.

      That won’t prevent the DoJ from appealing White’s denial of the DoJ’s Motion to Stay. But sanctions would be big step. Not very many district courts sanction the government or their attorneys. No doubt, the DoJ would appeal the sanctions, too, with all the usual histrionics about the sky falling, etc.

      I think [email protected] has a good point. If what the government has to produce to the EFF in the case before Judge White shows that a lot of non-executive branch actors had ready access to incriminating but unclassified information, the DoJ’s whole line of argument – that disclosure would threaten national security or violate some enforceable form of executive privilege – goes poof. One can almost here the lid on Pandora’s Box creaking on its hinges.

      • Mary says:

        And in addition to “a lot of non-executive branch actors had ready access to incriminating but unclassified information” there’s what we discussed back with the discussion on the “telecoms are a branch of Gov” thread, that if “a lot of non-executive branch actors had ready access to” information that isn’t being turned over on the basis of privilege, rather than classification, privilege gets busted.

  22. WilliamOckham says:

    I have a theory on why the government is tied in knots on this. They’ve maintained for so long that the world would come to an end if we ever knew which telcos participated in the wiretapping. Unfortunately for the DOJ, this FOIA request covers a whole bunch of completely unclassified emails and documents that identify these companies. Short of repealing FOIA, I don’t see an easy legislative fix for this problem. Of course, we all have a pretty good idea which telcos were involved, but when the government is forced to own up to that, their problems with Vaughn Walker in the al-Haramain cases get infinitely worse.

    I think they are just trying to stall on this one in hopes of getting clear of Judge Walker before this one breaks. This FOIA potentially reveals that a whole bunch of stuff (that the government has been claiming they can’t even tell al-Haramain’s lawyers under seal) was just floating around the DOJ, the telco lobbyists’ offices, and Congress with no classification marking or controls.

    • Hmmm says:

      Yeah, the simple fact of the delay has me thinking either that (denying ammo to Judge Walker), or else maybe there’s some other statute of limitations that’s about to run out on some other not-yet-known crime that the documents would reveal. So the priorities for a crooked DoJ would be 1) Get the law changed; if you don’t get that then 2) Hold off ’til the statute runs; if you don’t get that, then at least 3) Hold off ’til Walker can’t use it.

      Eric the Holder.

      • earlofhuntingdon says:

        Makes a lot of sense, if you were the CEO of a government that ran by the rules the Catholic Church used in hiding sexual predation for many decades.

        If that government CEO were committed to open, transparent government and the rule of law, and s/he ran their defense this way, s/he would not be walking the talk, but would rather be a typically cynical politician.

      • earlofhuntingdon says:

        The Ohio case discussed in the NY Times involved run-of-the-mill trusts & estates planning services sold to the public by persons not licensed to practice law in Ohio (or, apparently, anywhere else). The documents were “washed” through an Ohio-licensed attorney, but that attorney did not or rarely spoke with any of the customers in order to verify the facts or advise on the appropriateness of the requested “product” in meeting the customer’s needs.

        As some readers will know, the practice of law is licensed on a state by state basis. Admission and practice rules are similar, but not identical, and admission in one state is no guarantee of being admitted in another.

        Only attorneys licensed to practice in a state may provide legal services to the public in that state. Various rules prohibit lawyers from working with most non-lawyers when providing legal services. They also prohibit various fee sharing arrangements even with other lawyers. Any such arrangements need to be disclosed to a client.

        The citation to the Ohio case in the context of John Yoo is, to coin a phrase, a non sequitur. As a lawyer admitted in any state or the District of Columbia and employed by the federal government, Mr. Yoo’s practice of law for the government would have complied with applicable bar rules. That’s a separate question from whether Mr. Yoo’s services were competent or whether they were provided with intentional or reckless disregard for the law, and whether his conduct otherwise brought the bar and the practice of law into disrepute.

          • BayStateLibrul says:

            You’re right, I was the culprit who dropped the non sequitur @83. I thought I was making an a priori assumption that Yoo deserves a huge fine for bad lawyering. On further review, earlofhuntingdon is right, it was a leap of faith that deserves a five minute “roughing the lawyer” penalty….

  23. Mary says:

    @72 – Bmaz – sorry, I didn’t see that. I was trying to look up quotes to put in the post above at 77 and also work on a quickie contract and didn’t re-read before I posted. I think we’re on the same page, though, about what to expect on Friday. Even under the argument that they should get to make their own argument instead of having the judge make it and rule against it, they are going to have to come up with something clearly “new” and that he clearly did not consider in order for him to not give it a bench ruling and use the reasons he’s already set forth in this order.

  24. Loo Hoo. says:

    OT-

    Honduran negotiators reached agreement Wednesday on a plan to restore President Manuel Zelaya to office and end a political crisis triggered by his ouster in a June coup.

  25. cinnamonape says:

    LooHoo#81:

    I blame US Soccer!An embarassment for the regime…and they can’t go to war with the victor.

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