DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument:

There is a strong public interest in disclosure of the identity of the individuals who contacted the government in an effort to expand the government’s authority to gather intelligence and to protect telecommunications companies from legal liability for their role in governmental surveillance activity.

Given Judge White’s consistent findings and statements in the case to date, it is hard to believe he is going to be particularly impressed with the continued recalcitrance. Gerstein notes that “However, the move could also be a litigating tactic…”. Josh clearly has a gift for the understatement.

Perhaps more interesting than the predictable partial disclosure shuck and jive by the government is the new information on their procedural tactics taken since Wednesday that Gerstein reports:

Justice Department spokesmen did not respond to a request for comment, but the government did file a motion late Thursday asking the U.S. Court of Appeals for the 9th Circuit to stay a lower judge’s order that the materials be turned over by Friday afternoon.

Kagan has authorized an appeal to protect executive branch deliberations and to shield the identities of the telecom companies which sought immunity, as well as their employees.

This is pretty notable information. It implies that Kagan and the government have made the determination to appeal (gee, I guess they didn’t need that 60 days to make up their minds after all eh). Secondly, it looks like the government has accepted the legitimacy of White’s order denying the government’s motion for stay before they formally raised it. They could not go back to the 9th Circuit without a denial of stay ruling by White, so rather than fight him on the propriety of his unusual order, it looks as if they are accepting it at face value and heading to the 9th.

It will be interesting to see how Judge White reacts to this ploy; it is a fair bet that he will have some sharp words aimed at the government.

68 replies
  1. Peterr says:

    it is a fair bet that he will have some additional sharp words aimed at the government.

    Fixed it for you.

    NDCA is getting to be quite the place these days. Are they putting something in the courthouse water?

  2. BoxTurtle says:

    If he isn’t screaming pissed already, this isn’t going to make him any angrier. He’s seen more “dog ate my homework” filings than all the rest of the federal judges put together and at least in this case they’re going to partially comply with his order…while still claimin they don’t have to. He basically told them to take it to the 9th and that’s what they’re doing.

    I do not think they’re going to get a much friendler reception at the 9th and I don’t think they 9th will let them shield the telco names. The names of the individuals, possibly.

    Walker just shaved about 2 months of delay time from the governments plan. ObamaCo is probably hoping the 9th will move more, ah, deliberatively. I think they’re in for a shock because the only reason the 9th will hear the appeal is that they will want to rip the goverment lawyers themselves. I know you disagree with me here, bmaz, but I just don’t think that ObamaCo will get a friendly reception there.

    Boxturtle (A sternly worded court order is better than a sternly worded letter, I suppose)

  3. DWBartoo says:

    “sharp words”?

    No doubt.

    And, I am certain, the government lawyers will surely take these words to heart …

    The rule of law.

    When is that supposed to kick in?

    I know, slow-grinding, more slow grinding,
    and even more s-l-o-w grinding …

    It will take time for this to wend its happy way to the Robert’s Court, where it will all just disappear …


    But the building pressure of “consequences” for the non-elite, those lacking gummint “protection” of the first order, those being spied upon, those being lied to, those having their pockets picked to give, with no strings attached, unbelievably huge amounts of money to the very people who have brought the economy to its knees (some of us do not think the “worst” is over, the worst aspects of continuing failure have not even been examined or even acknowledged) … is not going to go away. Not only are American citizens despised, sometimes for very good reasons, around the world, here, at home, they face the very real prospect of becoming serf-like creatures essentially owned by corporate interests …

    So, when are we likely to see any real justice and not just sharp words from a few courageous judges or the occasional “strongly worded letter” from a few embarrassed, but obsequiously polite, members of Congress?

    Time does matter, even in the greatest, most wonderfully exceptional nation which has ever graced the “history” of this undeserving and unappreciative planet.

    Were it not for the fact that we are God’s chosen people, I don’t see how we might muddle along with a two or three-tiered “justice” system essentially premised upon money and power rather than truth and justice.

    Of course, that is merely my opinion and I am often at loggerheads with myself as to whether I consider the American Legal System to be a sorry joke or a pompous ass.

    Not being an attorney, though having total respect for the idea AND, most especially, the PRACTICE of the “rule of law” and NOT of men, as well as being a citizen of a country I care about, being a member of the society which inhabits that country, it is fair and reasonable of me to suggest that the nature of HOW the law is interpreted pretty much determines how EVERYTHING plays out.

    Right now, there is precious little to be proud of or sanguine about, so far as I am concerned, as regards truth, justice, and the law of the land.

    (Such snark as found its blundering way into this “suffering dog hairs!” rant is for entertainment porpoises only … and almost never to be taken even half-ways seriously)


    • BoxTurtle says:

      It will take time for this to wend its happy way to the Robert’s Court, where it will all just disappear …

      I wouldn’t bet on that. It’s easier to handicap horses than it is to predict Justices, but here’s my take.

      Thomas will vote against ObamaCo because he’s a conservative tool.

      Stevens will vote against Obama because he tends to follow the law and dislikes writing new law.

      Alito and Scalia will support Obamaco, as they never saw an expansion of executive power they didn’t like.

      Breyer will likely vote against ObamaCo as will Kennedy.

      Roberts will almost certainly support ObamaCo.

      So we’re now at 4-3. I suspect that Sotomeyer will support the president who appointed her.

      Ginsberg will be the deciding vote.

      Boxturtle (Above opinions are worth exactly what you paid for them)

      • DWBartoo says:

        I agree with your assessment of the Robert’s Court, BoxTurtle, except for Thomas, who will forgo his antipathy toward non-“conservatives”, believing that God and Justice will bring back the Republicans forthwith and Thomas would not want them to be “short” of the “right” kind of power … so I get 5-2, and Ginsberg will decide nothing …

        (As I am not an attorney … you have already overpaid for MY opinions, but thank you for reading them anyhoo.)


  4. Mary says:

    Eff has the Gov filing up here.

    I think there is another layer of tactics going on. By severing out the uber-losing argument, i.e., Congress is an agency of the Executive branch, and putting that cateogory of docs on the block, I think Gov is hoping for some Congressional lawyers to show up at this hearing and seek to intervene.

    It may not happen, but I think Gov is angling for getting Congress in front of the court, asserting legislative privilege and the need to review the emails before they are turned over. I think this is why the email was planted with leaked to Politico, and this is somewhat telling as well:

    On Thursday, the White House Counsel’s Office told lawyers for Congress about the decision and agreed to provide lawmakers and their staffs with copies of the records being prepared for release in connection with a Freedom of Information Act lawsuit brought by an internet-focused civil liberties group, the Electronic Frontier Foundation, House legal counsel Irv Nathan wrote in an e-mail to House leaders.

    So not DOJ, but WHC conducted that briefing. President’s direct lawyers, as opposed to his impairalegals at DOJ. And since when does WHC go dashing over to met with Congressional lawyers and indicate an eagerness to foist documents on Congress that neither “leaders” in Congress nor their lawyers are currently -um – asking for? And how do you make sure that everyone who may have something they want to cover up gets the word as fast as possible, but without making lots of highly questionable emails and phone calls and deciding which channels (DOJ, legs, WHC, etc.) to use? Just get Politico to send up the flare.

    All fwiw, but I’d think that they are hoping to get something from Congress on this.

    I also notice (haven’t read the Gov filing yet, but did take a look for attachments) that there’s no declaration or affidavit of Kagan to back up those so-called “decisions” they are saying she has made.

    • bmaz says:

      Interesting thought. I agree that would ties up the loose ends of the somewhat loopy path evidencing itself here. But a couple of countervailing thoughts. One, to the extent Congress has a justiciable interest here, they have had it all along; it is a bit late (laches) in the game to be suddenly rearing their head in protest. Two, the merits of that potential argument are not particularly compelling; I don’t see how they help the strength of the case as opposed to simply injecting a sideshow (which, I think you would likely retort is considered a brilliant success by this wayward crew).

      Yeah I am a little iffy on Kagan part of the report too; however she would be nuts to approach the 9th again without a legitimate decision to appeal.

      • Mary says:

        Oh, I agree it’s all loopy and may not win much other than time and may not happen at all (I do think on the laches front Congress can argue it was never made a party and never advised of what was going to be turned over until the briefing – not a good argument, but a makeable one, and argue that Congress isn’t required to review all the many pieces of litigation filed against the Exec and the balance of the equities support it having an opportunity to brief its Constitutionally carved out privilege to protect the legislative process yada yada).

        It’s just that it’s the only thing I can see that makes some sense of parts of what they’ve done.

        BTW – I am nothing but amazed at the admission by DOJ that it deemed itself “aligned” with the criminal violations of, and violators of, FISA. If the immunity legislation did not pass, DOJ would be the entity charged, by statute and possibly by a successor administration, with PROSECUTION OF THE VIOLATIONS AND VIOLATORS!!!!!!!!!!

        But it has now admitted in court pleadings that it was “aligned with” and had a “mutual interest with” the criminal violators of FISA. Umm – need for a special prosecutor, much? And so how is it supposed to work, that “legislation” that provides the “check and balance” of the AG reviewing (the actions of parties DOJ is aligned in interest with) the actions and certifying them as “okeydokey” to a Dist Ct?!?

        I kinda think this is a point that needs to get supplemented to the record of other telecom cases pending. DOJ has admitted in the record that it is aligned in interest with the telecoms. So how can an AG, instead of recusing bc of that alignment of interest, instead purport to give an unbiased certification to the Dist Ct, and esp put the AG in a position where he/she cannot both be aligned with the telecoms and provide unbiased certifications to the court.


    • Leen says:

      “And since when does WHC go dashing over to met with Congressional lawyers and indicate an eagerness to foist documents on Congress that neither “leaders” in Congress nor their lawyers are currently -um – asking for?”

      Another case of don’t ask don’t tell.

      Still wonder about why Faux was forced to take the Carl Cameron 4 part report that aired in the fall of 2002 off of their website.

      Are these companies being protected? Amdocs/Comverse Infosys etc? Methods being protected? Other countries being protected?

      This four part report is an interesting watch

      What did they report something like 95% of all U.s. phone calls routed through these telecoms

  5. DWBartoo says:

    To Mary @ 6:

    Very interesting.

    I had been wondering when Congress might get around to considering THEIR prerogatives. Of course, in my silliness, I had imagined that they would choose to stand against the usurpation of power by the Executive, but if Congress is to be a mere appendage, perhaps a tail?, then your scenario fits into the unfolding history of the moment like a well-formed and dainty hand into a stylish kid glove …


  6. Garrett says:

    I dislike it when the government makes arguments trying to minimize public interest in matters like this.

    But information about past legislative negotiations by a prior Administration over already-enacted legislation has limited significance for public consideration of new proposals in the current Congress.

    They have said the same thing in previous filings, got blasted for it, but just keep saying it.

    • Mary says:

      You just wait till they find the weapons of mass destruction. /snark

      I’ve read it now and boy is it (deliberately?) sloppy. The parts of it that talk about Congress are a beg for someone to raise legislative privilege – with the ironic reference to the Vichy Dems as “collaborators” on the immunity legislation.

      But they really muddy things up as much as possible about what they are appealing and what they are trying to get stayed. The actual procedural history is that an order to disclose/produce was entered. Just like real lawyers in real cases, they have a period of time to appeal that order, but if they are really going to be damaged they have, as a practical matter, a shorter period of time to make those appeal decisions because if they want to get a stay of the order going into effect, they need to file their appeal and request that stay under the Federal Rules.

      Instead, they asked the Dist Ct to exercise his judicial discretion (play favorites) to do something that the Federal Rules and that Congress (which statutorily granted additional time for Gov to decide whether or not to appeal, but nowhere granted any special stay rights) do not provide for – staying the effect of the order – not while an appeal is pending, but while Gov decides whether or not it even will appeal.

      The Dist Ct said – nope, and also said *I can’t pretend that you’ve asked for a stay pending appeal under the Fed Rules bc you haven’t noticed an appeal so since you’re crappy lawyers this is still all about whether or not I’m going to exercise my discretion on your behalf and I’m not*

      Then Gov files a Notice of Appeal (indicating it has something it wants appealed, not just stayed) but files with the Cir Ct a request, not for a stay pending appeal under the federal rules, but also for a stay while it decides whether or not to appeal (iow appealing the discretionary act of the lower court without getting that act certified for appeal and without briefing how it was an abuse of discretion)

      The Cir Ct, which now has a Notice of Appeal filed, ignores the content of the poorly pled request in front of them and treats it as a request for a stay pending appeal (as opposed to an interlocutory appeal of an uncertified ruling which was a denial of discretion) and says – you have to go to the Dist Ct under the Fed Rules to and ask for a stay (pretty much meaning staying pending appeal under Fed Rule Civ Pro 62) before you come to us.

      So of course Gov does what the Cir Ct tells them, right? They take their Notice of Appeal – which puts them in an appellate posture with respect to both courts – and clean up their filing in front of the Dist Ct to make it a request for a stay pending appeal under the rules? Notsomuch.

      Instead they just refile with the Dist Ct their strange filing with the Cir Ct, which was another request for a 60 day discretionary stay and not a stay pending appeal under the rules. The Dist. Ct. Judge manages to not throw breakables and rules, again, that he ain’t exercising discretion for them and also says – hey, let’s pretend you did what real lawyers should have done and asked for a stay pending appeal. If you had, here’s what I think the arguments would have been and here’s how I am ruling if that kind of a motion was in front of me, although apparently it’s not. The Gov lawyers pretty clearly brief to the Cir Court that no request for a stay pending appeal was ever made by them to the Dist Ct:

      On October 13, the district court denied the government a temporary stay, further held that it would deny a motion by the government for a stay pending appeal, and granted an administrative stay until 4:00 p.m. on Friday, October 16.

      Now the lawyers who have STILL NEVER filed a real request for stay pending appeal in front of the Dist Ct have once again skipped over to the Cir Ct, but now they are not asking the Cir Ct to rule on the discretionary stay, but instead to grant a stay pending appeal:

      The government now moves in this Court for a stay pending appeal.

      This has the same procedural defect as last time they were there, unless the Cir Ct buys that the Dist Ct can rule on imaginary pleadings that Gov should make but never gets around to making. Which is going to be a precedential doozy.

      And then, well, even though they say they want a stay pending appeal, they aren’t all that sure what they are going to appeal and what they want stayed,

      The Solicitor General’s consultations regarding appeal are not complete, but she has decided to pursue appeal with respect to two important categories of documents, both of which the district court ordered to be disclosed without ever deciding the basis for withholding under the exemptions invoked.

      HOwever, they spend a lot of time making arguments about things like Congressional communications, which supposedly aren’t part of what is going to be appealed under the two categories, and there’s no description of the parts of the order that are being appealed and there’s no declaration or affidavit of Kagan to support the bald assertions by DOJ lawyers as to her “determinations” which they assert, but then cloud, and then leave hanging as unfinished.

      I gotta think Gov is hanging it’s hat on buying time with a Congressional intervention. It’s filings otherwise, on a procedural analysis at least, are crap.

      • earlofhuntingdon says:

        Is this the DoJ John Yooing this case: filing knowingly incompetent pleadings to purposely muddy what’s being asked for, to lengthen already generous times for consideration and appeal, and to avoid making logical arguments for indefensible legal positions? After all, unless the government is still actively recruiting at Liberty U, it’s Ivy League and Big & PAC Ten law school grads are top of their class and, like Yoo, know what the law and procedural rules say. They just don’t like it, so they invent something they like better.

        By rights, the 9th Cir. should reject the DoJ’s appeal from White’s pre-denial of their not-yet-submitted request for a stay regarding the order to produce or disclose, with a recommendation that the lower court consider sanctioning the government for inexcusable delay.

        The process here is being perverted so that the government can avoid potential liability for its alleged past misconduct. These courts know what they’re documenting could well end up in Roberts’ court, so they’d better correct the government’s abuse of process and compile as complete a record of it as possible. They also know that four if not five on that court will not decide against the government on a claim it has abused its power or the law. In their minds, that’s a logical impossibility (except when it comes to gays, guns and abortion).

      • Leen says:

        Mary “You just wait till they find the weapons of mass destruction. /snark”

        Or just wait and wait and wait for them to hold anyone accountable for the false pre war intelligence. snark indeed

        Office of Special Plans, Niger Documents, no time to hold those individuals accountable. they have think thanks to join, more lies to push etc.

        They like going after Acorn and blowjobs. More important issues

      • LabDancer says:

        Most of your analysis here, I agree with. But I think Judge White has created — & BTW I think probably deliberately to address timing issues — one of those theoretically rare, but in this instance actual instances of exceptional circumstances. We can go back to our courses in jurisprudence & the history in England of how challenges to the powers of the “crown” [the equivalent here being the state, but more particularly the executive branch] developed, to a large extent synonymous with what we call ‘administrative’ law. You yourself hint at the reason in this comment [or your follow-on] by using the term “laches”, which is a concept, not out of the “law” tradition, but out of the “equity” tradition.

        So what I think the Circuit Court of Appeals can do here is treat what Judge White did, regardless its legal basis, as effectively–equitably, if you will–justifying the CCA taking on jurisdiction to consider the government’s motion for stay-pending-appeal, on some basis that, for example, takes into account the administrative law principle against pre-judgment.

        Again, I think there are several indications that’s it’s possible, maybe more than possible, that Judge White did this with eyes wide open that his self-initiated ruling would allow for this, the most compelling being from the combination of the deadline he’d imposed and the sense we can grant him having that the time for going through the strictly formal route was rapidly running out — indeed, it ran out as we watched.

        The effect of the ‘equities’ here then is created artificially, in contrast with being created out of the various cross-jurisdiction problems that characterized so much of early days history of administrative law, which might give off an impression of the ‘law’ having been somehow perverted, IOW the ick factor. But equity itself dictates that even the presence of ick, or lack of it, is a factor in the process of deciding whether or not to tolerate the circumcision of process and get on with hearing the motion on its own merits.

        I’m inclined to resist the idea that Judge White would not know of and have in mind all the above, or effectively that, when he issued his sua opinion. Altho — this may suggest the addition of some more spice to this soup, for example, Judge White effectively doing on his own to this issue, what English King Henry II is said to have left to members of his entourage to do with the Archbishop of Canterbury.

        • Mary says:

          I mentioned equities vis a vis a response to bmaz raising laches, although this is an issue in connection with the whole issue of a stay pending appeal as well – the tests for a stay bring in both legal (likely to win) and equitable (interests of the parties and damage) principles.

          I’m not sure if I understand where you are saying that we go down different paths on the analysis, but as I understand your comment you think that, despite the fact that the GOV lawyers have never filed a FRCP 62 compliant motion for stay pending appeal in front of the trial court, and even though the trial court specifically asked them if that is what they were doing and they refused to classify it as a stay pending appeal, and even though they are saying they STILL haven’t decided what things they are going to appeal (although they know that they will be horribly damaged enough to need a stay, they just don’t know if they will be horrible damaged enough to actually appeal?) – in any event, I think what you are saying is that the Circuit Ct will treat them as having complied with FRCP 62 even when they haven’t.

          I guess it might – I just have a hard time with that. Why would the Cir Ct tell them “well, this time it’s ok even though it wasn’t ok last time, bc this time you still haven’t filed the motion in front of the trial court or given him a memo, but you have made him so pissed off that he’s ruled on a motion you didn’t make”? The only reasons I can think of would be a) to show they feel sorry for the lawyers having to go back to the mean ol trial judge and do things correctly; b) to get them off the hook for being in contempt of the Dist Ct for not having what they have been ordered to have today; or c) to take the request in order to summarily dismiss it and keep the Dist Ct proceeding cooking.

          It is true that under administrative law applications, you are not necessarily required to to exhaust all administrative law options before an appeal if you can show some of those acts would be futile acts. However, I have never seen a court say “you don’t have to bother to create a record by properly requesting action from the trial court just bc you are pretty sure the trial court will rule against you” It could happen, but a very important reason to make the request in front of the trial court is to create the record as well as to get the ruling. You don’t get to rig things so that you can keep popping up arguments on appeal that you never made before the trial court.

          I don’t really see a reason why the Cir Ct would, today, do a lot more than they did last time unless they were wanting to save Gov’s bacon and prevent a situation where Gov is in violation of the Dist Ct’s order and someone needs to be thinking about sanctions. I do think if they set a precedent of allowing imaginary motions to be ruled on with no arguments and advocacy in the record and an appeal to lodge without rule compliance it would be a very very bad precedent. I’m not sure why it would be necessary either. The only down side to them saying, again, “go do it right” is that Gov has frittered away time and is teetering on contempt with the trial court by not doing it right. I’m not sure its the Circuit Court’s job to save gov lawyers from being in contempt of lower courts. Actually – I’m pretty sure it’s not and I hope they don’t.

          But I’m kind of confused by “I’m inclined to resist the idea that Judge White would not know of and have in mind all the above.” What I said from the beginning is that I think the Dist Ct judge set them up for a fast track situation where, if they didn’t show up and produce today and NOW tried to go and backtrack and get their filings correct, unless they came up with something new he could rule from the bench and keep things going. I still think that he deliberately did not leave them wriggle room and I’ve always said that – but it seems as if you are thinking something else maybe? That he wants them in the Cir Ct on their stay request instead of in front of him producing documents?

          I guess we’ll wait and see what happens. I really thought, as per my earlier comments, that the main issue today was going to end up being between the Dist judge and gov lawyers as to what would happen if they still hadn’t properly sought or obtained a stay and yet also didn’t show up with everything they were supposed to have. I do think that’s really still the main factor – will the DIst Ct judge start handing out sanctions or not – and I think a Cir Ct intervention would primarily just be an effort to prevent that issue from being addressed.

          But added to all the rest, imo (jmo) gov is also really hoping hoping that Congress is going to do a last minute show and try to rebalance the “equities” by introducing a new interest. I don’t understand why they would spend so much time arguing the Congressional collaborative process in their filing with the Cir Ct otherwise, since they are basically saying via politico that they ARE planning on handing off the Congressional exchanges. If they really are planning on handing off those and have decided not to launch that appeal, why be priming the Cir Ct pump with the issue at all – but for the hope of that last minute knight in Congressional armor showing up?

          Oh well – it’ll be what it’ll be.

          • LabDancer says:

            Well, as a purest on these things, you’re certainly someone after my own heart.

            But, you ask [talmudically]–how is this later motion different?

            I’ll try again to explain my POV [I’m not saying the failing here is yours; it’s inherent in communication]. I’m getting the impression that some part of the motivation in the feds going before the CCofA earlier was not so much in trying to turn the rules into mush [even tho that was a suggestion I myself raised], or even that plus ignorance; but because there was something or things said in the byplay between the feds and Judge White in the course of the various hearings that led up to the order involving the Oct 16 deadline [Is today “Whitemas”, as in “Fitzmas?”] that the convinced the feds that they in turn could make clear to the CCofA they were already in that ‘balance of equities’ position to invoke the ‘extraordinary remedy’ of going straight to the CCofA for a stay & bypassing the formality of pursuing it first before the trial level judge. And then one or more of these things happens: [a] the feds weren’t nearly as effective in articulating that view as they were in perceiving it to be the case, [b] the CCoA gatekeeper[s] didn’t get it, [c] the CCoA gatekeeper[s] just wouldn’t hear of it [which may have some basis is internal circuit rules politics, with possibly — I think very likely, since I feel as you do — one of the views being yours or close to it, in terms of maintaining the forms so long as arguably viable*], or [d] some combination of a thru c.

            [*I don’t believe you’re suggesting that in administrative law remedies justice is utterly bound up in adherence to form; the issue of interim stays pending appeals is after all, at least as much a creature of equity as of law.]

            From there, I would see Judge White’s sua opinion as bolstering that the feds were in fact NOT off base in reading him in such a way that supported going first [& otherwise precipatously] to the CCofA].

            So what is different about this later motion? Judge White’s sua opinion.

            Now, whether that is, or should be, sufficient, in light of the feds’ history of screwing around in this [and other roughly similar] causes, to justify having the CCofA find the equities to weigh in favor of hearing the stay motion on its merits, is another question, and perhaps the one where we meet.

            Imagining ourselves up there on the bench, part of me is inclined to say to the feds: this is the way you chose to cook your pottage, so now you have to eat it; another part of me says, well, the feds are mouthing ‘national security interests’ constantly on this, so I’m also going to hear them out of the merits, leaving aside whether it’s going to do them any good given how that worked with Judge White; yet another part of me is going to be thinking about such things as the fable of the little boy who cried wolf, and the repeated warnings from luminaries in the various branches over the nation’s history concerning the dangers of secrecy; and ultimately, the major part of me is going to be concerned with the legal tests that pertain — which means things do not bode well for the feds.

            But invoking an inviolability [that does not strictly exist] in adherence to form, to deny a hearing on something the administration is claiming has merit, despite all signs being otherwise, that I would not be inclined to do.

            • Mary says:

              something or things said in the byplay between the feds and Judge White in the course of the various hearings that led up to the order involving the Oct 16 deadline [Is today “Whitemas”, as in “Fitzmas?”] that the convinced the feds that they in turn could make clear to the CCofA they were already in that ‘balance of equities’ position to invoke the ‘extraordinary remedy’ of going straight to the CCofA for a stay & bypassing the formality of pursuing it first before the trial level judge

              Maybe so, but it’s just not that difficult to spit out a Motion for Stay Pending Appeal, even if they do it without supporting Memorandum, to paper compliance with the rule. So I don’t see how you argue “equities” when you didn’t even attempt to file the motion. I’m just not following where you need or have the equities on your side when it would have been very easy to file the Motion needed to make it all clean and clear without having to make such an extraordinary leap out of law. I don’t think you can refuse, and that’s what they’ve done, they’ve refused to make a record at the Dist Ct level and then say the equities favor you being able to go directly to the Cir Ct on that issue; I don’t think you can say that you really don’t know what and if you’ll be appealing at all – but the equities favor you being able to get a stay pending deciding that you may not even appeal at all.

              I’m not going to say there’s never an equitable argument to be made and, to the contrary, I’ve said that the multiprong test for getting a stay includes equitable considerations like the impact on the parties. But I’d say it isn’t well argued to say “heck, we don’t even know if we are going to appeal some of this stuff, cuz its, like, ya know, complicated” as your equitable argument for the extraordinary relief of Stay pending appeal. fwiw.

              @37/38 – I guess I’m extremist on it, but imo that is the direction backwards that we go when Gov gets to just blow off the courts the way the courts have let them lately.


  7. MadDog says:

    Just so we’re clear here, the Obama Administration DOJ’s primary argument (page 7 of the 42 page PDF) here is totally bunk:

    …The agencies disclosed certain responsive records, but withheld a number of records under several FOIA exemptions. The agencies withheld information that could reveal which telecommunications companies had participated in discussions regarding the legislative proposals, including the identities of the individuals who represented the companies in the discussions The identities of the companies’ representatives were withheld under Exemption 3, which protects information “specifically exempted from disclosure by statute”; the agencies relied on several nondisclosure statutes, including 50 U.S.C. § 403-1(i)(1), which requires the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure…

    (My Bold)

    Bunk I say!

    And why is that? Because Markie Hosenball and Mikey Isikoff of NewsWeek in an article way back on Sept. 20, 2007 had already revealed some, if not all, of the identities of the Telco lobbyists (and the Telcos they were representing):

    …Among those coordinating the industry’s effort are two well-connected capital players who both worked for President George H.W. Bush: Verizon general counsel William Barr, who served as attorney general under 41, and AT&T senior executive vice president James Cicconi, who was the elder Bush’s deputy chief of staff.

    Working with them are a battery of major D.C. lobbyists and lawyers who are providing “strategic advice” to the companies on the issue, according to sources familiar with the campaign who asked not to be identified talking about it. Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President George W. Bush who now represents AT&T.

    Because of the extreme secrecy surrounding the warrantless surveillance program, few if any of the lobbyists and lawyers are prepared to speak publicly about their role. “My client requires me not to talk to the press,” said the normally loquacious Black when asked by NEWSWEEK about his lobbying for AT&T. Berman and Berenson also declined comment. Gorelick confirmed that she is providing “strategic advice,” not lobbying for Verizon. Coats and Donilon did not respond to requests for comment…

    (My Bold)

    • MadDog says:

      And just in case any of the naive might wander though (which doesn’t apply to our intrepid Hotwheelers, but instead a troll or two), let me be perfectly clear here:

      The objections the Obama Administration’s DOJ (and White House) are making, are not about revealing the identities of the Telcos and their paid flunkies, but are instead are all about not revealing the Telcos’ promises of of filthy lucre campaign contributions and/or not-so-thinly veiled threats of no filthy lucre campaign contributions.

      If pressed, I’m sure the Obama Administration would like us poor serfs to believe that they are sparing us the incredible, and inedible, horror of political sausage-making.

      Don’t buy it! Tain’t true either!

      Bribery and extortion, as common as they are in our political process, are not legal methods of political sausage-making.

      In the end, the shorter version of the Telco lobbyists is:

      “You scratch my back, I’ll scratch your balls!”

      • MadDog says:

        Just found another bug in the new system updates. Here’s what I really posted in my # 16:

        And just in case any of the naive might wander though (which doesn’t apply to our intrepid Hotwheelers, but instead a troll or two), let me be perfectly clear here:

        The objections the Obama Administration’s DOJ (and White House) are making, are not about revealing the identities of the Telcos and their paid flunkies, but are instead are all about not revealing the Telcos’ promises of of filthy lucre campaign contributions and/or not-so-thinly veiled threats of no filthy lucre campaign contributions.

        If pressed, I’m sure the Obama Administration would like us poor serfs to believe that they are sparing us the incredible, and inedible, horror of political sausage-making.

        Don’t buy it! Tain’t true either!

        Bribery and extortion, as common as they are in our political process, are not legal methods of political sausage-making.

        In the end, the shorter version of the Telco lobbyists is:

        “You scratch my back, I’ll scratch your balls!”

        Instead, if you go back and try to edit (as I did), the system squoozes and smushes everything together into a single, non-spaced paragraph.

        I know, I know, not a bug, but a feature. :-)

    • kindGSL says:

      It is not about who they are, it is about what they have been doing.

      DOJ was involved in illegal spying on citizens, me specifically. I blogged the experience in the comments at AlterNet for the last 6 or 7 years so it was interactive.

      Illegal spying turned into torture. They face very serious charges.

      Illegal spying, conspiracy, torture, war crimes.

      Once they open the legal can of worms, big chunks of the whole Justice Department will fall down. They are so loaded with corruption, only whitewash still holds them up. It is like nobody knows how to approach it so they just keep doing what they are doing, hoping nobody will notice.

  8. earlofhuntingdon says:

    Perhaps Obahma & Rahma have simply accepted Bush’s argument that the telcos, when planning for and doing the executive’s illegal spying, are simply its alter ego, that disclosures to them are “internal” and “deliberative” and not a waiver of privilege. They were all advising the president.

    That’s to protect the telcos, but that’s in the past (if Obama wins his arguments). No, it’s an argument that will be more useful in protecting the identities of the “health” insurance and care lobbyists who will be in the same position. Their communications are all with or for the president, they are internal and deliberative and subject to privilege, therefore, not disclosable uder FOIA or to Congress.

    If Obama wins on either argument, his actual or my fanciful one, it will signal the formal takeover by corporations. The piece missing will be the S. Ct.’s acknowledgment that corporations are real persons with full constitutional protections of freedom of speech, assembly and petition.

  9. oldtree says:

    Once in a while you get the impression the administration is trying to let the court push these issues to the front, then they back off so the court can go with it. The judges that have to deal with it appear to be acting very carefully to prevent their decisions from being questioned as well. We can hope it keeps it out of the hands of a supreme court that has no clothes.

    • bmaz says:

      I never get that impression; and every fact and action point to the opposite conclusion. This is pie in the sky dreamy baloney; and if it were true, it would constitute an intentional dereliction of duty and authority on the part of the Executive Branch. Make no mistake, what they have done, and how the Obama Administration has handled itself is exactly the desire and affirmative policy of Obama. And that has been sworn to, under oath and penalty of perjury, many times in court.

  10. Leen says:

    Obama, Holder, Leahy, Whitehouse etc “no one is above the law”

    Except the telecoms, Cheney, Feith, Addington, Rove, Wolfowitz, Bolton etc etc.

  11. Mary says:

    OT – TPM has a piece up where they talk to Zeidenburg (part of the Libby team and the prosecutor for Safavian) about the Ring Gone Wrong trial

    Z makes the point that going after the public officials involved (um, that would have been Ashcroft and Ayers btw) might have been a better tactic. No on mentions the fact that Ayers was passing on classified info on the Marianna Report or that Ayers and Ashcroft managed to bury that report from Congress and retaliate against non-lobbyist compliant DOJ lawyers, all with impunity.

    The point is made that Public Integrity (the department)at DOJ is weakened. I guess I’d have concurred in a slightly different approach, that being that public integrity (the character trait) at DOJ has been dead for some time now – starting with the acquiesence in torture murders maybe.

  12. MadDog says:

    And a wee bit of OT:

    Binyam Mohamed: Judges overrule attempt to suppress torture evidence

    High court orders publication of US report, saying British foreign secretary’s actions were harmful to the rule of law

    David Miliband, the foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed, a British resident who was held in a secret prison in Pakistan, the high court has ruled.

    In a devastating judgment, two senior judges roundly dismissed the foreign secretary’s claims that disclosing the evidence would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.

    In what they described as an “unprecedented” and “exceptional” case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002…

        • DWBartoo says:

          Now that is a “reality” show which I just might watch.

          As I contrast the decision of Justices Thomas and Jones with that of Judge Royce Lambreth, as noted by fatster @ 35, I find that I am thoroughly and completely disgusted. As Mary says, too many US federal courts are far too willing (for whatever “reasons”) to allow the Executive, the ostensible “government”, to “blow” them off …

    • skdadl says:

      There’s a nicely done column by Clive Stafford Smith as an accompaniment to that news, too.

      So it would be an irrational person, the judges ruled, who would pretend that this material was classified. Rather, it is evidence of the crime of torture. As usual, the government is conflating national security with national embarrassment, in order to spare their own blushes.

      So why does David Miliband argue so earnestly that it should be suppressed, and why is he now intent on appealing the judgment to keep this evidence secret?

      On the news tonight, I watched Miliband argue that a British court cannot reveal the evidence because the American government “owns this material” and has refused permission to release it. Of course, Mohamed owns his body, and did not give the Americans permission to torture him.

      The Americans own the details of their torture of Mohamed in the same way that a criminal “owns” the money that he stole from the bank.

      Miliband will appeal, of course.

      • MadDog says:

        The AP had a fairly good piece too:

        UK court order: release torture allegation details

        …”We have … concluded that as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs,” Lord Justice John Thomas and Justice David Lloyd Jones said in their decision Friday…

        …On Friday, the High Court in London agreed.

        “It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ‘secret’ or as ‘intelligence’…”

      • Mary says:

        The Americans own the details of their torture of Mohamed in the same way that a criminal “owns” the money that he stole from the bank.

        There you go.

        @44 – sorry, no I don’t have anymore links. If you are a good googler, there may be more, I just don’t have them. What ended up happening after the lynching is that, eventually, the Sup Ct had its first ever trial at the Sup Ct level – it was for contempt of court against the Sherrif, Shipp I think his name was, and a few others involved in the lynching. Of course, there the Sup Ct was able to go to the AG’s office for support in the action against the state officials. notsomuch here.

    • DWBartoo says:

      Thanks MadDog;

      Not being and attorney, my favorite part of the article you link to is this:

      “The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law.”


      “Championing the rule of law, not subordinating it, is the cornerstone of democracy.”

      Lord Justice Thomas and Mr. Justice Lloyd Jones

      Too bad there is such a large “pond” between our nations when it comes to the rule of law.

      But maybe, it will “translate” across the water, somehow.

  13. Mary says:

    From EFF’s site:

    3:50pm: In order to give itself more time to decide whether to grant the requested stay, the Ninth Circuit Court has extended the deadline for disclosure of documents another week, until 5pm PT on Friday October 23.

    They’ve stayed for a week while they decide whether or not to stay. IOW – they’ve saved gov’s lawyers’ bacon for them and kept the Dit Ct Judge from having to decide on sanctions.

    • MadDog says:

      What I find interesting is that the 9th stepped in at all…again.

      And to read that latest EFF update, it sure looks like the 9th Circuit has grabbed the ball from District Court Judge White.

      • bmaz says:

        Well, look at it this way: If the 9th were inclined to grant the stay, they could have done so; it is fully briefed. They would not need time to write a solid decision granting the stay, but they would to deny it. If they are going to deny it, I doubt they wanted to leave the whole mess up in the air at 4 pm on a Friday afternoon. Either way, I am not at all surprised they have taken this step.

        • MadDog says:

          And further, it seems like the 9th is stealthily inching towards giving Solicitor General Elena Kagan the time to decide whether to formally appeal as the DOJ implies she might, and also getting the 9th off the hook of not having to formally rule until she does.

          • DWBartoo says:


            Does this suggest that the 9th is profiling the courage we have all just applauded in the Brits?

            Or does it suggest something akin to the enthralling kabuki dramas enacted between America’s two great (and essentially “only”) political parties?

            bmaz had just given me some meager hopes that the 9th intends to use the “TIME” to “write a solid decision” denying the stay … although I might have misunderstood, and now you, MadDog, are suggesting (again, if I understand what you are saying) that the slow grinding may simply go on interminably, so long as some “plausible” excuse may be found to keep any court from the embarrassment of making a genuine decision upholding the rule of law as it ought to be … until the arrival of some magical moment?

            Who knows, maybe that day will fall on the anniversary of Marcus Tullius Cicero’s birthday (which happens to be on a Monday, in the second week of January, next year) sometime over the next few years or decades?

        • LabDancer says:

          Right; this can’t qualify as a shock when our focus has been not on whether but by what means the feds will succeed in manipulating more time from the system.

          Nor can we reasonably infer the 9th ‘scooping’ the case from Judge White’s clutches [assuming that’s what MD is suggesting]; if the 9th was eager for it, one would expect them to take it over on the earlier opportunity.

          What I do find interesting tho, is the tone of the written submissions filed in the motion on the issue of whether Judge White did, or did not, ‘making findings of fact’. That’s awfully basic stuff — approaching, if not actually, patent — such that one would reasonably expect that who ever is on the wrong side of that ‘controversy’ is in for a kicking.

          Well now–turns out the whole battle is captured on video:

            • LabDancer says:


              Or rather: thanks to the perspicacity of Monty Python [from whose ranks, parenthetically — gotta love that device — we received due warning as to what GWB would wrought:


              BTW, I’m particularly pleased it was you who posted this response — because today’s outcome [of the 9th effectively ordering a stay of Judge White’s order in order to consider whether to actually order a stay of Judge White’s order — ooo, my head], would place in jeopardy the value of the first tranches released from the hypothecation of the contents, choate & inchoate, associated with the hole left by the dent in your hubcap, being the dent you so graciously granted that I might devise from it the basis for a wager predicated on the precise means by which said delay might be brought about.

              Fortunately, however [though what’s particularly fortunate is my having selected a blog with an such an impressive collective brainpower], it appears no one actually took up the challenge.

  14. Mary says:

    I’m in a “blast from the past mode – so here’s a link to the Exec Privilege ruling in the Starr/Clinton standoff (finding a semen stained dress was so much more in the public interest than finding out how the Dept of Justice decided to “align” itself with the very telecoms it would also have to prosecute if it were to ever actually fulfill its Constitutionally appointed “enforce the law” role and how wrangling out legislation to protect telecoms felons so that they would not implicate Exec branch felons is within the scope of “privilege”)

    Interesting read in the context of what has been going on with Exec branch massive FISA felonies, institutionalized violations of most of the Bill of Rights (with a special devotion to programs to violate the 4th amendment vis a vis American citizens on American soil) and solicitation, orchestration and implementation of torture regimes calculated to generate false information from innocent men to support illegal wars.

    Good thing we got the really important stuff cleared up, so all the piddly ass crap can fall by the wayside.

  15. earlofhuntingdon says:

    I understand, but disagree, with why the executive might want such massive powers of intrusion. I still find it unfathomable that Congress would acquiesce, as if it were the blind person being walked by the executive dog.

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