Reading Tea Leaves on Warrantless Wiretapping

Sorry I’ve been distracted all day. And yes, I will try to comment on the surprise news that Steven Kappes will be leaving the CIA next month later this evening.

But in the meantime, I wanted to look at this exchange between Arlen “Scrapple that used to be Haggis” Specter and Eric Holder on the recent al-Haramain verdict.

SEN. SPECTER: Mr. Attorney General, there will be another opportunity to test the constitutionality of the warrantless wiretaps through the appellate process and, hopefully, to the Supreme Court of the United States. And from the decision made by Chief Judge Walker recently in the San Francisco case, holding that the warrantless wiretaps were unconstitutional, saying that the requirements of the Foreign Intelligence Surveillance Act precluded the warrantless wiretaps, that there had to be probable cause and a warrant.

There was an opportunity to have a review by the Supreme Court of the United States in the case arising out of Detroit which federal court there declared the warrantless wiretaps unconstitutional. The Sixth Circuit cited there was no standing. I thought the dissent was much stronger than the two judges in the majority. Well-known that standing is frequently used as a way of avoiding deciding tough questions, and Supreme Court of the United States denied cert.

So at this point, after a lot of specification, a lot of discussion, we do [not?] know, dispositively, whether the president’s power as commander in chief, under Article II, justifies warrantless wiretapping or whether the explicit provisions of Foreign Intelligence Surveillance Act govern.

Would you press to have the case coming out of the San Francisco federal court go to the Supreme Court for a decision there?

ATTY GEN. HOLDER: We have really not decided what we’re going to do at this point with the decision that was made by the judge. The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods. And a determination as to what we are going to do with the adverse ruling that we got from the chief judge — the district court judge, has not been made as yet. We are considering our options.

SEN. SPECTER: What do you think?

ATTY GEN. HOLDER: (Laughs.) Well, I think that I haven’t made up my mind yet. I think that we have to see what the impact will be on this case with regard to a program that I guess ended, I think, 2007, 2006.

My view is that, to the extent that — I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

So I think that we will have to consider what our options are and try to understand what the ramifications are of the judge’s ruling in the Al-Haramain case.

Here’s my take (and bmaz will hopefully be along shortly to tell me how naive I’m being, from a wizened Defense Attorney perspective).

First, note Specter’s false premise, in which he asserts that:

  • Vaughn Walker held that warrantless wiretaps were unconstitutional
  • Walker further held that FISA required probable cause and a warrant
  • SCOTUS has a chance to test the Constitutionality of the warrantless wiretapping program by reviewing the al-Haramain decision
  • Holder could encourage this outcome by appealing the al-Haramain verdict

But I think this misreads Walker’s verdict and–more importantly–the grounds on which DOJ might appeal. The thing about Walker’s verdict that most pissed off DOJ is that he ruled that FISA trumps state secrets. What he then did was use that ruling to give the government a choice: either hand over a warrant for the wiretapping it did on al-Haramain, or he would judge that al-Haramain had been illegally wiretapped. I’m not a lawyer, but the actual wiretapping part of Walker’s decision, it seems to me, is a simple one about the plain text meaning of FISA. He didn’t rule on Bush and Yoo’s wacky theories of Article II power.

As I said, though, the really dangerous part of Walker’s ruling for DOJ was that certain laws might pre-empt what both the Bush and the Obama Administration would like to claim are unlimited powers to hide things–including crimes–behind State Secrets invocations.

Which is pretty much what Holder said: “The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods.” The focus of the ruling–certainly as he reads it–is about State Secrets, not the legality of the warrantless wiretapping program. So, using both the first person plural and the passive, Holder punts and says no decision has been made.

So Specter tries again, and asks what Holder thinks personally. And Holder–the guy who may well get overridden on his Gitmo decision, says, “I haven’t made up my mind yet.” Does this suggest that Holder–not Rahm Emanuel and Lindsey Graham, and not the lawyers who have been fighting this for four years–will actually get to make the decision himself?

Holder raises, as the first issue, what impact this decision will have on a program that ended in 2007. I’ve suggested it will have no impact, because if anyone else actually could prove standing in the way al-Haramain had to, we’d know about it.

But then Holder gets cryptic.

I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

At first, this statement seemed like a statement effectively saying, “we’ve got our FISA Amendments Act, we’ve achieved the same results with the blessing of Congress, and so therefore the program we’ve got now is safe in any case.” That may be all he’s saying.

But I’m wondering if, instead, this is a reflection about whether the modified program would not carry the same risk of court review as the old program had. That is, I’m wondering whether Holder’s decision will be premised on whether the decision that FISA trumps State Secrets would be inapplicable to the statute–and the program–as it exists today.

I’m going to have to review the program on that front. But I’m guessing–and it’s just a wildarsed guess–that that’s what Holder is most concerned about with regards to Vaughn’s ruling.

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29 replies
  1. Jim White says:

    The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods.

    Heh. But aren’t those precious “methods” illegal?

  2. Leen says:

    ot..Have folks seen this

    CIA Report into Shoring up Afghan war support in Western Europe

    Use Human Rights and Womens rights issues
    http://file.wikileaks.org/file/cia-afghanistan.pdf

    Ayaan Hirsi (AEI) just came to our campus to speak. It was all fearmongering about Islam. Really out promoting Islamophobia It was all about how the U.S. should use their military in Muslim countries to save the women.
    http://www.ohio.edu/outlook/2009-10/April/baker_peace_484.cfm

    This is the new strategy being used to promote war.

  3. MadDog says:

    If memory serves me correct (and brief review of Walker’s order (45 page PDF) does indeed jog the memory), the plaintiffs have until this Friday, April 16th to inform Judge Walker of their decision going forward.

    From pages 44-45:

    …Having prevailed on their motion for summary judgment of liability on their FISA claim, plaintiffs now face a decision regarding the course of the remaining proceedings in this case. They may either: (1) take steps to prosecute the remaining claims in the FAC or (2) they may voluntarily dismiss those claims in order to take the steps necessary for the entry of judgment on the FISA claim. Plaintiffs shall advise the court, no later than April 16, 2010 and in the manner set forth below, of their election.

    Should plaintiffs elect the first course —— to pursue their remaining claims in lieu of seeking entry of judgment —— they shall, by April 16, 2010, contact the clerk to obtain a date for a case management conference to be held not later than May 28, 2010.

    Should plaintiffs choose the second course, they shall submit a request for dismissal of their remaining claims together with a proposed form of judgment reflecting: their computation of damages under 50 USC § 1810 consistent with counsel’s statements at oral argument (Doc #712/114 at 24-25) and that statute; their entitlement to attorney fees “and other investigation and litigation costs” under section 1810(c); and the items of equitable relief sought in the FAC to which they believe they are entitled under this order. If plaintiffs believe that further proceedings are required in order for the court to determine the quantum of damages or other specifics of the judgment, they shall so advise the court in a separate written request accompanying their proposed form of judgment.

    Defendants may submit an alternative proposed form of judgment or a written response to plaintiffs’ submissions within fourteen days after plaintiffs file their proposed form of
    judgment…

    As the ball is plainly in the plaintiff’s court, it doesn’t seem that AG Holder and the DOJ need make their decisions just yet.

  4. orionATL says:

    ew,

    how you can do what seems to me an exceptionally tedious job, “live blogging”, and still have energy and determination enough left to write a post is impressive , to say the least.

  5. orionATL says:

    with respect to the quotes at the post above:

    – what the hell was specter’s point?

    – what the hell was holder’s point?

    i did not come away with an iota of new info from either official’s quoted comments.

    presumably, haggis is going to go back to penn and claim he was for or against something,

    depending on the audience and how the political winds in penn are blowing at the time.

    what a slithery snake democratic sen. haggis is!

  6. scribe says:

    EW: Your take on Holder’s position is a reasonable one.

    The real problem with evidentiary privileges, such as the state secrets privilege, is in how they get built. The general rule is found in Rule 501 of the Federal Rules of Evidence, which states:

    Rule 501. General Rule

    Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

    The last sentence of this Rule, which imports state law of privileges into federal courts, is an analog to the doctrine of Erie R. Co. v. Tompkins, a leading case of civil procedure. In the context of al-Haramin, where all the law involved is federal, this part of the Rule is irrelevant and need not be considered.

    So, let’s parse the relevant part of the Rule:

    Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

    The general part of the Rule:

    the privilege of a […] government, […] shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

    This throws the interpretation of the privilege’s scope onto the well-worn and established rules of interpretng common law privileges. The state secrets privilege was created out of whole cloth by the Supreme Court in Reynolds v. United States (though a more rudimentary form of it, not well expressed, had existed previously) in the early 1950s. (Not that it matters that much, but the Federal Rules of Evidence didn’t come along until the late 60s or early 70s. Until that time, all the rules of evidence were common-law rules.) Since Reynolds was decided, there have not been that many cases deciding issues pertaining to the state secrets privilege. It just does not come up that often. So, n terms development of the common law of the state secrets privilege, there’s just not a lot of “experience”, though there might be a heck of a lot of reasoning. In so many words, in the abstract there’s a lot of room for academics and arguments.

    But, then along came FISA – the statute in effect at the time of the wrongs in issue in this case. The history of that statute shows that it was enacted in response to abuses of authority under cloak of secrecy. Arguably it directly displaces the state secrets privilege by creating a private right of action. There is a principle in the law that Congress, when it legislates, does not enact a futility. In this case, reasoning tells us that that would mean that for the private right of action contained in FISA to be of any value – i.e., not an exercise in futility – the state secrets privilege would have to give way. OTOH, one is compelled to wonder in how many cases people have tried – unsuccessfully – to get FISA related information on themselves for their litigation. OF course, until Bushco went all rampant with hoovering eveything, the vast majority of lawyers, let alone laymen, couldn’t tell you what FISA was, nor that the government could wiretap you like that. Learning how to close house sales, for example, would be far more valuable to law students than learning about the law of counter-espionage wiretaps. So,
    There is another principle in the law which states that statutes in derogation of the common law are to be construed narrowly. In other words, if the statute limits the common law of the state secrets privilege, that limitation is construed as narrowly as possible. Countervailing that, though, is that remedial statutes are to be construed liberally in favor of effecting their remedial purpose. Since FISA creates a private right of action, it is a remedial statute (at least as pertains to the right to sue) and would be entitled to be construed liberally. The preamble of the original FISA statute (the sentences beginning “whereas”) would likely contain a declaration that this is a remedial act or something similar, which would move it into the box of remedial legislation entitled to liberal construction.

    See, the problem with statutory interpretation is that there are whole bunches of principles from which judges can select. These principles are often in direct contradiction of each other. And selecting the principles upon which the decision is grounded often will determine the result.

    The further problem with statutory construction is that often the judge’s selection of the principle of law can, with a little craftsmanship on the part of appellate counsel, be turned into something which is reviewed on a de novo basis. In this regard, DoJ’s failure to come forward and oppose the motion puts it in a bit of a box. If they had argued more clearly that the privilege was not trumped by the FISA statute, they might be able to get a “the judge selected the wrong principles” argument off the ground. Or they might have been able to do it more easily. Their insistence that the judge should have followed the 9th Circuit, which we ridiculed, is properly seen as an attempt to build that sort of “judge selected the wrong principles” argument for later appeal.

    But not opposing the SJ motion can only yield DoJ success on appeal in two ways. First, DoJ could succeed if the appellate court were to say that under any set of facts, there is no way al-Haramin could succeed so SJ was improperly granted. But reaching that result would require them to totally throw out the remedial portion of the FISA act – judicial legislation at its worst. Second, DoJ could get from the appellate court the chance to go back to the trial court to properly oppose the SJ. In state courts that’s often done, particularly where the person who had their case dismissed was some poor unfortunate overmatched by some Goliath law firm. But in federal courts the appellate bench is not so generous, figuring that if you’re in federal court you’ve chosen to play with the big boys and have to play by big boys’ rules. And in this case, the poor unfortunates would be the United States in one of the highest-profile cases going. In sum, this second path to DoJ success is not likely.

    So, let’s move on, going back to the exceptions to the general rule of “reason and experience”. Those exceptions are contained in the prefatory clause of the first sentence of Rule 501:

    Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority,

    These are three different sources of an exception: if the Constitution requires a privilege to be construed in a certain way, if a statute provides (or limits) a privilege, or if a Rule established by the Supreme Court governs it.

    Taking these out of order, I’ll address the last one first. The
    Supreme Court gets to establish rules for the courts. Some of these are the Federal Rules of Evidence, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Appellate Procedure. The Supreme Court’s authority to create these rules – which inevitably affect the subsatantive rights of parties in litigation – comes from something called the Rules Enabling Act. IIRC the procedure under this act is that the Supreme Court promulgates the Rules it wants to promulgate and submits them to Congress and, if Congress does not object, the rules go into effect. It’s an odd form of legislative veto which to the best of my recollection has never been challenged. It would seem to be valid under Congress’ power under Article III to create federal courts. Think of it as something akin to Congress devolving limited Home Rule powers to the government of the District of Columbia. Rather than decide on which manholes to replace this year, Congress leaves that to the DC government and only gets involved when they leave the reservation.

    Under this power, conceivably the Supreme Court (i.e., 5 justices) could adopt a Rule (in the Rules of Evidence, most likely) codifying the State Secrets privilege and how it works. And they could make that rule whatever they wanted and, if Congress didn’t object, that would be the Rule. FWIW, there have at any number of points in the past, various proposed rules in the F.R.Evid. governing various privileges (though not state secrets, IIRC) which have never gone the full distance.

    Moving to another head of exception – the Constitution requiring a privilege. This, as I understand it, has to do mainly with the attorney-client and self-incrimination privileges, which speaking generally protect mainly the Fifth and Sixth Amendment guarantees of due process, self-incrimination and right to counsel. They don’t really pertain to this case and this source of exception doesn’t either.

    Finally, there’s the statutory source of exception. We’ve parsed the FISA statute and how it interacts with state secrets. It’s indirect and we know that. But it does – by effect of reason – limit the state secrets privilege.

    The upshot of all this is that if Holder appeals, they have a row to hoe and will be making law – bad law.

    Y’know, I bet Holder got a memo saying pretty much the same thing as I’ve just written here, off the top of my head, over the course of the 6th-9th innings of the Cardinals-Astros game. And it was written by someone getting paid a hell of a lot more than this attorney.

  7. alan1tx says:

    Ask America: al-Haramain, good or bad?

    There’s not 1% of America (no offence) that knows or cares about terrorist or terror sponsors rights.

    I know it’s “fundamental” rights, but is it really.

    If my neighbor wants to kill me, I want the police to find out and stop it, I don’t want them to be hampered until after the fact.

    And I have crazy neighbors.

  8. orionATL says:

    scribe @7

    damn, scribe.

    that was very impressive

    and informative. the two don’t always go together.

    the real question re “state secrets”, which is one among several very serious constitutional issues that are not explicitly constitutional,

    is when, if ever, will some member(s) of our throughly cowed federal judiciary

    cut loose and rule that this “state’s secret” animal waste is an evasion of the administrative branch’s responsibility

    and an end run around the tripartite form of government our constitution set up?

  9. bmaz says:

    Which is pretty much what Holder said: “The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods.” The focus of the ruling–certainly as he reads it–is about State Secrets, not the legality of the warrantless wiretapping program. So, using both the first person plural and the passive, Holder punts and says no decision has been made.

    Well, no, the focus was not really about “protection of sources and methods”; the focus was about unfettered secrecy of information. The necessary people to properly litigate all necessary issues in the case all have the requisite security clearances and there are time tested and confirmed procedures for handling of classified information. Methods that have been used safely and successfully for years in criminal cases and that have been specifically approved for the instant civil circumstances by the Chief judge of the DC Circuit who is also the former Chief Judge of the FISA Court. Not to mention that, although still on further appeal, the same decision has also been rendered in the 9th Circuit in Jeppesen. Some of the most critical classified information has indeed already even been seen by the Plaintiffs as the Government previously disclosed it to them.

    So it isn’t “about sources and methods” Eric.

    Oh, and no information need be further disclosed to actually have the benefit of review by superior Federal Appellate Courts including the Supreme Court. If it is all on the up and up, why not get that imprimatur from the Constitutionally designated arbiter of such questions?

    Holder is full of shit.

    Heck it is not even really about state secrets, because the ability to plead state secrets is not being challenged; the only thing effectively being challenged is whether the power by the executive is absolute and and imperial beyond any review, oversight and question. If you want to know the answer, there is no sweat here in obtaining it.

    • earlofhuntingdon says:

      As you say, the better law is that state secrets is an evidentiary privilege of government, itself founded on a government lie, a fact that hasn’t yet been sufficient to overturn the jurisprudence of the state secrets doctrine.

      As I understand it, the state secrets doctrine is a rule that allows the government to challenge the admissibility of specific items of evidence. It is not a privilege that allows the government to have a case against it dismissed by reason of the government’s failure to cooperate.

      When specific items of evidence are ruled inadmissible because they meet the requirements of being a state secret, and that evidence in its entirety would deprive the defendant of the ability adequately to defend itself, and there are no alternate means of allowing the defendant to do so without admitting state secrets into evidence, then in that limited circumstance the case could be dismissed. That is intended to be a “non-resolution” of last resort, not a blanket relief from the court’s jurisdiction. And it requires the government to show that each item of evidence it objects to meets the requirement of being a state secret, a considerable burden.

      The Bush and now the Obama administrations have attempted to collapse an evidentiary privilege into just such a Monopoly game playing card. A few courts have shown undue deference to the executive branch by largely agreeing with that argument. Thankfully, they don’t include Vaughn Walker.

  10. earlofhuntingdon says:

    Walker essentially ruled that the plaintiffs had met their prima facie case that they had been illegally wiretapped. That shifted the burden of proof to the government, requiring it to offer evidence to the contrary, failing which a finding for the plaintiff on the facts – which the government chose not to dispute – would be virtually required. The government chose not to offer any such evidence, instead choosing to hide behind its claim that state secrets trump all else. Walker ruled to the contrary, leaving him no choice but to find for the plaintiff on the question of illegal wiretapping.

    • b2020 says:

      I thought that that was the crux. It is not obvious to me that
      “he ruled that FISA trumps state secrets”

      My read is that Walker simply ruled that state secrets were irrelevant with respect to the plaintiffs having supplied sufficient proof already (courtesy of FBI) that they were wiretapped, and that the government refused to challenge that minimal proof (for whatever reason), and did not even claim that the FISA process was observed.

      See here: “defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.”
      http://emptywheel.firedoglake.com/2010/03/31/breaking-judge-walker-finds-al-haramain-has-standing/

      He says DOJ did not claim any non-FISA justification (so he does not have to reject it), that DOJ did claim nor disclaim a FISA warrant was obtained (DOJ refusing to disclose information they do not have to provide, not claiming the right to keep it secret), and that the DOJ neither claimed nor disclaimed that any surveillance took place (as in, DOJ can choose to keep quiet but has to live with the consequences). Walker did not attempt to obtain by subpoena or order what the DOJ refused to volunteer.

      If the DOJ had never shown up in court and never filed anything, the decision would have been the same, for the same reasons?

      My read is that Walker simply used the most narrow decision he could find, clearly signalling to the government that, as no other plaintiffs will ever be in this position again (no more accidental “leaks” of proof of illegal wiretapping by FBI), the courts are more than willing to pass on state secrets, non-FISA wiretapping and executive privileges if the DOJ is willing to let his one-of-a-kind ruling stand, esp. as the DOJ already signalled that they were not making executive privilege etc. claims and just thought they should prevail even while “taking the 5th”.

      I am a lot less enthusiastic about this example of political juris-prudence than most. Unless the Obama DOJ gets greedy – Holder is just a sock puppet, given his presidents frequent public statements regading decisions about investigations, prosecutions, venues – and appeals in the hope of (ultimately) an even more executive-accomodating SCOTUS decision, nothing got resolved.

      Dissent?

      I have no idea about the timelines involved, but maybe they are playing “Waiting for Kagan”? Or they are hoping to be aided and abetted by Congress to reform FISA once more to better defend the state secrets privilege against “both litigation and legislation”.

      • bmaz says:

        It is not obvious to me that “he ruled that FISA trumps state secrets”

        Um, that is exactly what Walker ruled. You must not be familiar with the July 2008 ruling that underpins Walker’s order granting summary judgment.

  11. MadDog says:

    And only tangentially related (big brother doing warrantless invasions of electronic privacy again), EFF has this piece up today based on the 9th’s “obstinacy”:

    EFF Backs Yahoo! to Protect User from Warrantless Email Search

    From the govenment’s motion (17 page PDF):

    …Counsel for the United States contacted Yahoo in an attempt to obtain full compliance with the Order. Yu Jin Kang, Senior Supervisor of Legal Services for Yahoo, stated that Yahoo would not comply with the portion of the Order requiring Yahoo to produce content stored for less than 181 days. As a basis for Yahoo’s refusal to comply with the Order, Kang relied upon Ninth Circuit law…

    (My Bold)

    I don’t think the DOJ is very thrilled with the folks in the 9th. *g*

    • MadDog says:

      And btw, Yahoo’s response (49 page PDF) reads pretty good. I particularly like this part on page 2:

      …the Ninth Circuit has ruled that the SCA requires law enforcement to procure a warrant to obtain emails no more than 180 days old, even if they have been “opened”. Theofel v. Farey-Jones, 359 F.3d 1066, 1075-77 (9th Cir. 2004). Despite that, the government now attempts to force Yahoo! into an untenable position by having a court outside of the Ninth Circuit order Yahoo! to produce information stored within the Ninth Circuit despite clear Circuit precedent to the contrary.1

      …Footnote 1

      The ruling that the government seeks in this matter would force Yahoo! to either endure a contempty penalty in this court or become vulnerable to civil liability within the Ninth Circuit. This liability is by no means hypothetical – in Quon v. Arch Wireless, 529 F.2d 892 (9th Cir. 2008) cert. graned sub nom., City of Ontario v. Quon, 130 S.Ct. 1011, cert denied sub nom., USA Mobility Wireless, Inc. v. Quon, 130 S. Ct. 1011 (2009) the Court of Appeals for the Ninth Circuit held that an electronic communications service provider who turns over opened and stored text messages without a warrant or a viable exception is liable under the SCA as a matter of law.

  12. EternalVigilance says:

    Thanks emptywheel @ 2

    Legal shmegal. There’s no such thing when you’re in charge.

    and bmaz @ 10

    the only thing effectively being challenged is whether the power by the executive is absolute and and imperial beyond any review, oversight and question.

    IMO that sums it up succinctly.

    (Also thanks to scribe for the legal details, they’re much appreciated.)

    It seems to me that while one might spend an eternity arguing over how many DOJ lawyers can dance on the head of a Ninth Circuit judge, it’s important to remember the continued application of the following doctrine, which some thought applied only to the Bush administration, and only to foreign policy:

    “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do.”

    I’d say it’s time to become one of history’s actors.

  13. pdaly says:

    Holder’s response paraphrases part of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, but I like the part that talks about limits on executive power (listed below):

    3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

    from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZC2.html

  14. ondelette says:

    scribe, bmaz:

    Actually, there are a couple of other things at hand in this case. One is the doctrine of origination, which the government used to withhold documents from the plaintiffs and from Judge Walker. The intelligence community asserted that the originator of a document gets the final say over whether or not a person “needs to know” about the contents of a document, regardless of whether that person is a court, or has the highest security clearances in the land. That was used to try to prevent any discovery of evidence.

    The second is that the argument that Arlen Specter alluded to, using standing to ask for dismissal of suits, has been used not only with something like this, for which scribe says there is a balance problem between narrow and liberal interpretation of a limitation to common law, but has been used extensively by the Bush administration and more recently by the Obama administration, to prevent habeas pleas. I don’t think the arguments that scribe was alluding to for state secrets are applicable to those, are they? It gets further entangled than that since the “fundamental guarantees” protected by common Article 3 of the Geneva Conventions (the enumeration of the rights encompassed by the right to review by a regularly constituted judiciary) very much include the right to have any charges and detention and status reviewed as well.

    Anyway, could someone elucidate just how broad the rights of the government are to withhold the information a party needs for ‘standing’, and on what authority the government can use things like the doctrine of origination to prevent even the most basic of human rights from being exercised (e.g. it took Matthew Diaz’s valentine to get standing for most Guantánamo inmates’ lawyers, and it took endless FOIA filings to get any standing at all at Bagram for habeas pleas)?

    TIA

  15. klynn says:

    EW,

    Thanks for your live blogging and for this post. Amazing work.

    What he then did was use that ruling to give the government a choice: either hand over a warrant for the wiretapping it did on al-Haramain, or he would judge that al-Haramain had been illegally wiretapped.

    A question. Was Walker really giving an either or choice?

  16. orionATL says:

    there are a large number of very informative comments above which
    help me get a glimmer of what’s at issue.

    my thanks to the various commenters.

  17. Leen says:

    Amazing that Sestak is not trumping the Dem then Republican then Dem Specter.

    “i am proud to be endorsed by the college Republicans” Uh “the college Democrats”

    Check out this clip of Specter

  18. Mary says:

    I do think it’s worth pointing out Sessions’ statements for the record on the hearing, where he praised Holder for his efforts to evade Congressional legislation by assertion of States Secrets.

    Obama and Holder are all about the politics, not the law, and IMO Sessions has made it clear that if Holder doesn’t dig in, they will go after him and I think they believe it’s the kind of case like would like to go after him over. A “terrorist front” with an “al-” name. Despised and despicable “lawyers” and more than that, “unpatriotic” lawyers who represent “terruhists.” Judges giving terruhists rights and DOJ doing nuthin.

    OTOH – the Republicans are already going after him on every front, so at some point he and Obama ought to emerge from the fog of lawfare and realize that it’s a lot harder to fight back when you stake out a cogent, defensible position rather than just playing whack a mole.

    @18 – I don’t think that could be done in a 50pp brief. It’s either a one liner, or an opus and despite their appeal, one liners don’t do it justice.

    And fwiw, just bc it is almost never mentioned except in a different context, the issue of whether or not FISA is, in all its aspects and especially as revised, constitutional, has been pretty much left to the side. On the one had you have the argument that does get made – can FISA limit the President when he is acting as CIC; but on the other hand you have the issue of can FISA allow, as it does, some completely warrantless surveillance of Americans by their gov and some surveillance under FISA ct order, but with the order issued on much less than probable cause to believe an American is involved in criminal activity.

    Especially where the government is claiming the right to use that information to extra-judicially assassinate Americans.

  19. Mary says:

    From Sessions’ statement:

    There are, however, some important areas where we agree.

    The Department of Justice rightly has asserted the state secrets privilege and defended that privilege against both litigation and legislation

    I do almost laugh at this, except for how disturbing it is – you have a legislator congratulating the Exec for refusing to comply with the legislation.

    • EternalVigilance says:

      The Department of Justice rightly has asserted the state secrets privilege and defended that privilege against both litigation and legislation

      I do almost laugh at this, except for how disturbing it is – you have a legislator congratulating the Exec for refusing to comply with the legislation.

      This illustrates how the fundamental structure of American government as defined in the 1700’s is no longer appropriate for the 21st century.

      The idea behind three ostensibly separate branches of government was that the men in each branch would treat the others as natural adversaries. It was a government of the people, by the people – in other words, the people in the branches represented fully the makeup of the country. It was of course a grossly distorted view that “the people” were only wealthy white males, but the important point is that “the government” and “the people” were essentially one and the same.

      But today we have a very different arrangement.

      Today, rather than three adversarial and balancing branches of government, what we have is three branches of government united against their common enemy: the population.

      Just like Catholics and Protestants can be counted on to fight each other until they both unite to fight someone they both hate even more, say the Muslims, the branches of government are now unified to defend the oligarchy against the threat from a growing and ever-more aware population.

      And to see how we might remedy this problem, at least within the constraints of similar governmental forms (not necessarily a requirement, it’s just a place to start), we return to the beginning and notice that American government worked when the people and the government were not distinct and separate groups. In other words, the problem today isn’t the tyrants in government, because it’s the nature of humans at the present time to want to dominate their brethren. The problem is the population – i.e., us – not being more directly involved in governing our country.

      Yes, there are real reasons this is so today, both on the part of the ruling class, and also on the part of the class that wants to be ruled.

      But the essence of the problem is that the people have abdicated their own throne to be claimed by those who would dominate them.

      Until “the people” and “the government” are once again synonymous, nothing will change.

  20. skdadl says:

    you have a legislator congratulating the Exec for refusing to comply with the legislation

    That is a one-liner that someone needs to get out to the people. If the people are going to worry about the legislature, that’s why they should worry above all. It’s a massive constitutional surrender, or threatens to be, and there’s a lot of it going around.

    • klynn says:

      I am with you skdadl.

      Mary,

      Your comment @ 23 is worthy of a post to expand just how disturbing it is.

    • ondelette says:

      You also had John Kyl demanding that the Attorney General denounce legislation “criminalizing” cruel, inhuman, and degrading treatment.

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