Holder’s Catch-22 on the al-Haramain Ruling

Michael Isikoff reports that–as I suspected–DOJ would very much like to accept the Vaughn Walker ruling and be done with George Bush’s illegal wiretap program. But the Department of Justice led by a guy who got paid a lot of money to help Chiquita’s rich white Republican executives avoid criminal liability for their support of a terrorist organization is worried about the significance of paying a civil penalty to al-Haramain, which the government still considers a terrorist organization.

Of all the tricky decisions Attorney General Eric Holder is facing right now, here’s one that has lawyers at the Justice Department really scratching their heads. All things being equal, they would love nothing more than to let stand a federal judge’s recent decision that President Bush’s warrantless wiretapping program was illegal, thereby avoiding further legal skirmishes over one of the Bush administration’s most divisive legacies. But unless they appeal last month’s landmark decision by U.S. Judge Vaughan Walker, the U.S. government may be forced to pay damages into the bank account of one of the plaintiffs in the case: an Islamic charity that has been formally declared a Global Terrorist Organization.

Can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing “material support” to terrorists?


… even a symbolic payment to a defunct organization’s frozen bank account could be problematic, potentially undermining a linchpin of the U.S. government’s anti-terrorist efforts.

I think Isikoff misses one important wrinkle to this dilemma, though.

As al-Haramain has made clear from the beginning, what got the organization put on the terrorist list in the first place was probably a conversation in which one of its lawyers mentioned Osama bin Laden’s brother-in-law. It’s likely, in other words, that al-Haramain Oregon is only on the terrorist list because of a conversation that was illegally wiretapped.

Here’s how Vaughn Walker synthesized the argument in his ruling from last January.

On February 19, 2004, the Treasury Department issued a press release announcing that OFAC had blocked Al-Haramain Oregon’s assets pending an investigation of possible crimes relating to currency reporting and tax laws; the document contained no mention of purported links between plaintiff Al-Haramain Oregon and Osama bin-Laden. ¶¶ 30-31.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.) ¶¶ 34-35.

In the telephone conversations between Belew and al- Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit. Id.

In a letter to Al-Haramain Oregon’s lawyer Lynne Bernabei dated April 23, 2004, OFAC Director Newcomb stated that OFAC was considering designating Al-Haramain Oregon as a Specially Designated Global Terrorist (SDGT) organization based on unclassified information “and on classified documents that are not authorized for public disclosure.” ¶ 36. In a follow-up letter to Bernabei dated July 23, 2004, Newcomb reiterated that OFAC was considering “classified information not being provided to you” in determining whether to designate Al-Haramain Oregon as an SDGT organization. ¶ 37. On September 9, 2004, OFAC declared plaintiff Al-Haramain Oregon to be an SDGT organization. ¶ 38.

In a press release issued on September 9, 2004, the Treasury Department stated that the investigation of Al-Haramain Oregon showed “direct links between the US branch [of Al-Haramain] and Usama bin Laden”; this was the first public claim of purported links between Al-Haramain Oregon and Osama bin-Laden. ¶¶ 39-40.

That is, al-Haramain has always suggested that the only evidence that got al-Haramain named a terrorist organization in the first place (and, if I’m not mistaken, distinguished al-Haramin Oregon from al-Haramain Saudi Arabia, which was never designated a terrorist organization) was a series of conversations in which people with ties to Osama bin Laden were mentioned. And those conversations are precisely the conversations that, if this decision were accepted, would be declared illegal.

Of course, al-Haramain should have had an opportunity to challenge whether mentioning Osama bin Laden’s brother-in-law and two clerics is enough to get you declared a terrorist organization. But to allow them to do that, DOJ would first have to admit that’s what they’ve based the claim on in the first place. And that would involve turning over interrogation materials that Walker is about to declare illegal. (And, incidentally, it would reveal one of the things the Bush and Obama Administrations wanted to hide behind their State Secrets invocations in the first place, whether or not the government was listening in on those conversations.)

Perhaps the easiest answer to this “dilemma” would be to take al-Haramain Oregon (which, after all, is defunct) off the terrorist list, and give the organization the measly $200,000 the government would owe it with this ruling. But they can’t do that, because it would be an admission of how dicey their claims were in the first place.

In short, like many of the cases against the detainees at Gitmo, the case against al-Haramain is based on illegal evidence that potentially isn’t strong enough to hold up in court in any case. And as with the detainees, deciding the terrorist designation was wrong would involve admitting that the evidence was illegal and/or weak in the first place.

It’s not just that DOJ would have to pay a defunct organization still designated as a terrorist organization. It would have to pay an organization that is only designated as a terrorist organization because it was illegally wiretapped and therefore couldn’t fight the charges against it.

That’s a nifty little dilemma Bush’s illegal counter-terrorism programs have left DOJ with, huh?

58 replies
  1. qweryous says:

    “That’s a nifty little dilemma Bush’s illegal counter-terrorism programs have left DOJ with, huh?”

    It is all the fault of…

    Is the right wing wurlitzer just now preparing the ‘talking points’ on this…

    Or have the talking points been waiting for the decision?

    EDIT ADD: I agree that Isikoff missed reporting the wrinkle you point out.

  2. DWBartoo says:

    “That’s a nifty little dilemma Bush’s illegal counter-terrorism programs have left the DOJ with, huh?”

    Ain’t that the truth?

    Perhaps the “rest” of the truth has something to do with the dilemma?

    What to do?

    To be honest or not to be honest.

    (And all the “shades” in between).

    What would conscience do?

    What would compassion do?

    What does humanity require?

    Which of these may “we” do without?

    “What”, or “who”, after all, (or before all) is actually being “protected”?

    It is a little like looking at “the” pictures we are not supposed to see.

    What is so important that it must not be known?

    That it cannot be known?

    What “security” is left a nation which cannot trust itself to know the truth?


  3. BoxTurtle says:

    Pay the money. Blame it on BushCo’s crappy handling of things and claim it would have been different if ObamaLLP had been in charge. Never stray from that line.

    Boxturtle (Why is that so difficult for Rahm to figure out?)

      • BoxTurtle says:

        Because right now, if I’m ObamaLLP, now I have almost everything I want. Nobody is getting any deeper into the wiretapping program. The ruling, while citable, carries much less weight than if it had been appealed. BushCo wrongdoing is still hidden enough that there’s no pressure to investigate or prosecute. The money is chickenfeed.

        I don’t like that I have to pay to a terrorist org, but I can blame Bushco and freeze the money as soon as it’s transfered. I don’t like that my wiretapping program has been declared illegal, but I can still do it if I please. Simply signing on to the settlement is NOT a guilty plea. And none of my lawyers get sanctioned.

        Boxturtle (And I can now proceed in a forwardlooking manner)

        • bmaz says:

          If I am al-Haramain and you freeze my money after admitting you owed it in a judgment you did not dispute, I sue you for bad faith and seek to put on trial your basis for listing me as a terrorist organization and I do it under some type of order to show cause type of claim that puts the burden on the government to show their basis and do so with legal evidence. I am not sure this is all possible, but that would be the type of thing running through my mind. My point is, it is nowhere near as simple as you seem to make it all out to be.

          • BoxTurtle says:

            An interesting fight, no? My bet is that the terrorist laws about financial support trump the bad faith argument (admittedly, this has never been litigated) and the Government then has to prove they should be on that list. The government can stop at any time they think it might be embarassing to proceed and conceed to Al-H. If AL-H wins, a few years down the road they get their money with interest and an insincere apology for placing them on the list in error. If they lose, the government keeps the money.

            The goal is to get this out of the hands of the courts. SO I might let them keep the money, as freezing it would be essentially a political move.

            Boxturtle (Reminder to all: bmaz is the lawyer, not I)

            • bmaz says:

              Why I don’t know that that is true at all. The Supremes just heard oral arguments on material support and were very uneasy with the breadth of scope with which it is applied. I think a creative lawyer could find some hay to make.

              • Mary says:

                One thing is that Scalia, for all his right-wingedness, is also a guy who is very willing to take a “you made your bed, you lie in it” approach vis a vis a President who puts himself into such a position. He, after all, was willing to find that Bush had violated the Constitution by his holding Hamdi without habeas. And he didn’t care that it might make it tough for him.

                @21/25 – I don’t think the money factors in much at all, other than, again, the poltical optics of the number (Hussein Obama hand over 4 million dollars to alleged terrorist front…)

                Administratively at DOJ the number will make a difference, but from a decisional context I don’t think it matters to the Changeling nearly as much as the political optic he can or can’t manage.

                • bmaz says:

                  Oh, I agree with that completely; I just want folks to understand that it is not a few hundred thousand; it will total out to between three and four million.

                  And as to Scalia; as discussed before, I do not think he is the pushover on this type of issue a lot of folks seem to think.

                  • b2020 says:

                    Scalia has an Ego, and he has a need to take himself seriously.
                    Bush vs. Gore is only part the picture, one other aspect of it is “Maverick”.

                    It ties into Mary’s point about at the least needing SCOTUS judges intent on defending the role and privileges of the judicary. Scalia, whatever the merits, will not tolerate an executive whose filings imply he could be swayed to buy openly ridiculous legal propositions. I am not sure to what extent Thomas, Alito, or even Roberts would muster the same kind of “integrity”, depending on the ends that could be accomplished by going along.

              • BoxTurtle says:

                Yes, the SCOPE. But not the intent. They clearly felt the government was reaching.

                However, the freezing of a legal judgement from an entity on the Terror list until such time as the entity is removed would likely be looked upon as well within acceptable scope.

                But, good grief, did you read some of the positions the Government was taking? If you hire a lawyer to advocate your position, that lawyer is guilty?

                Boxturtle (You think a bunch of lawyers are going to criminalize hiring a lawyer?!?)

        • fatster says:

          Why spend a mere $200,000, close this case down, blame BushCo, and get on to other, more pressing matters, when you can spend many times more that amount of taxpayers’ dollars trying to dodge the inevitable for a few more years?

          Thanks for this and your other good posts over the last several days, EW. I apologize that I plumb forget my manners sometimes and fail to express my gratitude.

          • emptywheel says:

            Well, you probably have to spend around $4 million, once you pay legal fees. But they were willing to buy off Hatfill for $6M and Horn for $3M, so this is in the range of acceptable pay-off amounts.

            • bmaz says:

              Yeah, I estimate total attorney fees and costs for plaintiffs at between 2.5 million and 3.5 million; probably much closer to the lower end of that range.

        • qweryous says:

          “Because right now, if I’m ObamaLLP, now I have almost everything I want.”

          With complicated issues like this you can never be sure how the Supreme Court might rule.
          Perhaps for a reason that I had not considered:

          Via Digby (last night) : current arguments in a slightly less complicated case might leave you wondering just how you might explain something complicated:

          LINK to digby:

          “During oral arguments today in the case City of Ontario v. Quon, which considers whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city, the justices of the Supreme Court at times seemed to struggle with the technology involved.”

          Actual example of this:

          “At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

          “Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.”

          And this exchange:

          “Justice Antonin Scalia wrangled a bit with the idea of a service provider.

          “You mean (the text) doesn’t go right to me?” he asked.”

          LINK to article cited by digby is HERE

        • DWBartoo says:

          Walker gave Obama the “easiest” deal, in terms of everything you mentioned, but, clearly, Obama Co. wants a “better” deal.

          One imagines that this has been “understood”, all along by Obama Co. AND by Walker.

          At what point will Walker become annoyed? (Or perhaps he finds it all amusing?)

          And how long (time doth tick away, in consequential fashion, to the clear benefit of some) until the Supremes come to the Executive’s rescue (“this” is NOT a “partisan” thing, as “they” are all complicit, together, in these things), for it is not simple embarrassment which is on the line, but ultimate POWER itself.

          There is, simply, too much at stake to admit to even the slightest of wrong doing … by ANY administration … or President … or Vice President.

          The slightest breach in its too-thin hull will sink the great ship of state known as America.

          The plight of the people is as nothing, it is the fate of rulers that must not be allowed into the hands of brutal and capricious chance.

          Obama is committed to the lie.

          As, apparently, are the courts.

          As, definitely, is Congress.

          To the barricades!

          Man the lies!

          The die is cast, that is where the future-perfect … lies.

          (Don’t look back, because something very unpleasant is gaining on us, instead if we look forward, with all our hearts, and click our heels together, just the proper number of times, magically, everything will be just fine … get yer hopes afloat!)


  4. JTMinIA says:

    Another option is to first admit that there wasn’t sufficient evidence against the group to call it a SDGT org and *then* hand over the money. No skin off Oramba’s Admin, since they didn’t make the original mistake. But that would play badly in the soundbyte press, wouldn’t it?

    Never mind.

  5. Gitcheegumee says:

    Well…what about Blackwater,smuggled weapons, and PKK -a terrorist organization?

    Blackwater Worldwide arms smuggling allegations

    On September 22, 2007, U.S. federal prosecutors announced an investigation into whether Blackwater employees illegally smuggled weapons into Iraq, that were later possibly transferred to the Kurdistan Workers Party (PKK), a Kurdish Marxist-nationalist group designated a terrorist organization by the US, NATO and the European Union.[6][7][8]Blackwater initially denied the claims and declared them baseless. [10] According to Blackwater spokeswoman Anne Tyrrell, “Allegations that Blackwater was in any way associated or complicit in unlawful arms activities are baseless,” and they have “no knowledge of any employee improperly exporting weapons.”[11] In early 2007, two Blackwater employees pled guilty to illegally shipping weapons.[12] In November 2008, the U.S. State Department prepared to slap a multimillion-dollar fine on Blackwater for shipping hundreds of automatic weapons to Iraq without the necessary permits. Some of the weapons were believed to have ended up on the country’s black market.[13]

    [edit] Indictment
    Former Blackwater president Gary Jackson and other former Blackwater employees were indicted on arms trading charges, and of gifts of 5 of the weapons to Jordan’s King Abdullah.[29] The indictment sprang from a 2008 raid, in which 22 weapons were seized, including 17 AK 47s.


    NOTE: The entire Wiki entry on this matter is quite informative. I edited out,for purposes of brevity, the parts about Howard Krongard,and his involvement ;but, they are MOST interesting,and worth a trip to Wiki for the rest of the story.

    • Gitcheegumee says:

      Here’s some current info on the Blackwater-King of Jordan nexxus:

      t r u t h o u t | Blackwater Indicted for Violating Federal …King Abdullah visited Blackwater’s headquarters in March 2005 along with his two … including Bushmaster rifles, to Abdullah’s private security detail. …
      http://www.truthout.org/blackwater-indicted-violating-federal-firearms-laws58653 – Cached

      Feds: Blackwater Gifted Weapons To King Of Jordan — Then Lied To …Apr 19, 2010 … King Abdullah II of Jordan and Blackwater troops on the company’s compound in Moyock, N.C. … Blackwater execs gifted Glocks, an M4 rifle, and a shotgun, … The defendants falsely completed the forms to give the …
      tpmmuckraker.talkingpointsmemo.com/…/feds_blackwater_gifted_weapons_to_king_of_jordan_-.php – Cached

      NOTE: I am NOT saying the King of Jordan is on the terrorist list,okay? *G*

  6. Mary says:

    When the first post on the ruling went up, my off the cuff reaction was that Gov wouldn’t go along and would appeal because of the political aspects (First, and with Obama the biggest, the political aspects of the decision. I just don’t think it’s going to sell well with his other “strong on national security” strategies to date to roll over on this case and this ruling.)

    While I partly agree with this:

    Perhaps the easiest answer to this “dilemma” would be to take al-Haramain Oregon (which, after all, is defunct) off the terrorist list, and give the organization the measly $200,000 the government would owe it with this ruling. But they can’t do that, because it would be an admission of how dicey their claims were in the first place.

    I think there’s a bigger “they can’t” reason and it has to do with politics and optics. Obama has never done anything on the national security and war front other than to bury himself in the Bush optics and so it makes it very very very hard for him, this far into his lost opportunities to change the political discussions in this country, to suddenly pay off an Islamic charity that has been under investigation for terrorism support.

    If he’d taken some of the conversation down a very different route early on – maybe by having a sit down and discussing things like how we had CIA memos to the WH from Aug 2002 warning that we were kidnappig and buying and abusing innocent people and our only response was to try to keep those people buried alive at GITMO, but now we have to grow up, take responsiblity, realize that 9/11 can’t be used as a continuing excuse for continuing abuse and that we have to implement our already existing institutions of law and legislature and the checks they provide to keep us from going down such wrong paths – while at the same time allowing us to take all approrpriate measures against those who are bent on criminal acts and attacking our nation – if he’d opted in for that kind of a discussion early on and brought focus to some of the very cases that the courts have had to try to fix for him, then he would have a different political atmosphere in which to operate.

    From the atmosphere he’s allowed and nutured the response to him handing off $$ to al-Haramain and not “defending” against terrorists and not defending the “necessary” powers of Presidential “secrecy” etc. – those are all going to be daggers for his back.

    • bmaz says:

      I think there is another corollary consideration too. How would accepting such a judgment figure into the still outstanding OPR report on illegal wiretapping? As far as affronts to the rule of law, there is every reason to believe the OLC work underlying the TSP are every bit as bad, if indeed not worse, than that on torture. How do you accept such a point blanked judgment from a Federal court and then sanction another Margolis whitewash of DOJ conduct? And if you accept the judgment and find professional misconduct by OLC, you have a real clusterfuck on your hands. They are in between a rock and a hard place no matter what they do.

      • BoxTurtle says:

        How would accepting such a judgment figure into the still outstanding OPR report on illegal wiretapping?

        The report will remain outstanding. If it enters in, it gets treated as a move to save the taxpayers the costs of protracted litigation. Since there’s really on interest anywhere in in ObamaLLP for taking action whatever the result, we move forward.

        How do you accept such a point blanked judgment from a Federal court and then sanction another Margolis whitewash of DOJ conduct?

        With a straight face, just as if you were selling a flood damaged used car. The MSM doesn’t care. Congress doesn’t care. The voters aren’t paying attention. Keep moving forward.

        And if you accept the judgment and find professional misconduct by OLC, you have a real clusterfuck on your hands

        You blame it on BushCo, point out that the SoL has expired and besides it’s in the past.

        The point is, once this is out of the hands of the courts ObamaLLP can count on a compliant MSM and congress to let this go away.

        Boxturtle (So what if it makes them look like fools, they ALREADY look like fools!)

      • emptywheel says:

        I don’t buy that.

        David Passaro went to jail in spite of the fact that John Yoo had endorsed the Bullet Points saying he could only be tried for torture or war crimes. That didn’t prevent a Margolis whitewash of Yoo’s role in that.

        So why should accepting the al-H judgment have to weigh in on OPR at all? Besides, maybe they have finally finished, but we just don’t know about it.

        • b2020 says:

          I agree. They can get away with any amount of inconsistencies as long as they can block, or buy out, any litigation that would require anybody to unravel the knots. Who has standing to sue over another OPR whitewash?

            • DWBartoo says:

              Kind of makes the rule of law a joke doesn’t it?

              Those most in need of justice, in America, cannot receive it.

              For “justice”, in America depends on two things, primarily, the depth of one’s pockets and whether one has “standing”.

              How different, really, are any of us, now, under what passes for the “rule” of “law”, in America, from Dred Scott?

              What is a legal system bereft of moral compass?

              Worthless, except as a bludgeon to be used at the whim of the powerful. It is also a pathetic joke and a hypocrisy of clever deceit.

              When the law becomes corrupt with the deference and self-policing you have well described, in past, bmaz, its further corruption is guaranteed.

              When lawyers use the law to destroy the rule of law, it is an affront to civilization itself. And must be dealt with accordingly.

              Bluntly, other lawyers must be in the clear and visible position of standing, publicly, even at risk to their careers and their skins, against what is nothing less than the most treasonable of tyrannies, for it is an assault against humanity itself as well as an attack upon reason and truth.

      • Mary says:

        There are lots of reasons, imo, that it’s not cut and dried for Gov to try to make this all go away by buying in on Walker’s judgment. I just meant (and still mean) that we’ve been exposed over and over to the fact that things like right/wrong, moral/immoral, legal/illegal, constitutional/unconstitutional, transparency/cover up, protecting torturers/persecuting whistleblowers, etc aren’t things that phase Obama much in comparison to the polticial aspects.

        He’s consistently more swayed by protecting himself with CIA/NSA and with whether or not he can get Lieberman and Lindsey and Sessions and Fox to not pick on him than by much else imo, at least imo. That’s why I focused on that aspect – with what he’s done to date, he politically shoots himself in the foot now to hand off $$ to al-Haramain and admit wrongdoing. But he’s the one who has set the trajectory for that shot, so I don’t have as much “this is what Bush left him” sympathy. jmo.

        On some of the other legal v. political issues, if they don’t cut the deal with plaintiffs on having to admit guilt, you also have the fact that you have now, in the civil phase, admitted that DOJ was involved in solicitation of a felony via its original approvals and that NSA persons carried out that felony. That has impact on a lot of fronts and if the OPR investigation on wiretapping is really still outstanding and ongoing, that would be a definite impact.

        I kind of wondered, btw, if the “new” understanding of the FISA court on just what it is that DOJ/NSA is actually doing with its dragnets of metadata had some relationship to that investigation.

        So DOJ solicited felonies, “misexplainings” to the FISA ct, etc. – and how does this new “legislation” work when the same DOJ that was invovled in the illegal activity drafted the legislation to hand out immunities and take away even more judicial review from the courts all without really explaining what they were doing to Congress, either? Of course, the difference in part was that the FISCt probably actually asked for real explanations, while Obama-style legislators flanked by Cass Sunstein’s were simply looking for opportunities to use their, “good faith reliance on advice of counsel” and “furriners aren’t Americans” and “al-Qaeda calling” talking points.

    • b2020 says:

      Agreed. Banking on Obama’s ego (as it is assisted by the likes of Sunstein and Kagan, and “checked” by the likes of Holder and Gibbs) is not a long shot when it comes to guessing what the Obama DOJ response will be to the Walker decision. The man has not exactly shown foresight – his economic policies might well blow up spectacularly long before 2012.

      I also bet that the judge did not see this one coming, and it is exactly the kind of political kabuki that could derail his carefully crafted dodge.

      On the level of sheer entertainment, the convulsions of the DOJ quest to bury the crimes of the past to nurture the abominations of the present simply cannot be beat. I think that Orwell’s 1984 depicted a Haunted House of Horrors increasingly irrelevant to our times of incompetent and unserious not-so-total totalitarianism. It is a bit too early for Huxley to take the stage, but Kafka is proving to be a timeless classic.

      I did not expect to see Goedel’s Incompleteness to be laid out for legal frameworks with quite this much comedic value.

        • DWBartoo says:


          This is no surprise for Walker.

          However, is Walker annoyed or simply enjoying himself?

          I am hoping you might have some thoughts about this, bmaz.

          Would you care to share?


          • bmaz says:

            Somewhere in between, but closer to enjoying himself. My guess is Walker is as interested as the rest of us as to what the government will decide. It will come soon enough though, they do not get forever to chew this over.

            • DWBartoo says:

              Thanks, bmaz.

              You confirmed my supposition. The judge is enjoying himself. Perhaps that is to the good? My further supposition is that it is to the good because it means that Walker is still paying very close attention, and is, by no means, bored.

              How long have “they” got, bmaz, and why should they dither, what do they gain but cheap suspense? They’ve really but one choice, and will not appear either astute or committed if they wait until the last moment to declare. (Call it “shell-out falter”.)


        • b2020 says:

          If Walker knowingly set this up for “Chiquita” B. Holder, the man should be nominated for the Supreme Court. Truth or Dare – that’s quite some Catch-22 you have there, and it to me it seems entirely self-inflicted.

          Holder’s Dilemma seems to be how to de-list – from a UN list – a defunct organization – presumably defunct because of being listed – that is merely “accused” by a UN Comittee of supporting terrorists.

          Because if the soon-to-be-illegal “evidence” behind the original accusation cannot enter the public record now – and if the whole case turns on keeping it secret – it was not part of the record when the UN listed Al-H in the first place.

          If Marcy has it right and the illegally tapped – and possibly mis-interpreted – conversations were the foundation of the fatwa that rolled from the US – with charges dropped – onwards all the way to the UN, then the embarrassment is certainly substantial.

          But I would love to see some evidence that Walker anticipated Holder agonizing over the minutia of how to pay out the damages instead of simply intending Holder to swallow hard on loosing a lawsuit to a defunct organization accused of support for terrorists. Walker wanted to feed the DOJ a pill, but I don’t think he wanted it to be loaded with LSD. Holder seems to be experiencing quite a trip.

          I am not even convinced that it would be that hard for them to cobweb this. Maybe the DOJ can just point at the UN and state that, as long as Al-H is not delisted by the UN, no payouts can be made even if all his own secret “evidence” is soon to be illegal and to be deleted, because it is the UN, and not the US, that has to “rehabilitate” Al-H.

          Either way, I cannot believe the incompetence that has the Holder DOJ – publicly – “research the legality” of what was a known possible outcome of this case. I still don’t think Walker anticipated this amount of bumbling either.

          Did Eisenberg cue Isikoff in, or was this angle public knowledge even before Walker’s decision? You would think that the DOJ had some contingency plan to bury this case as quickly as possible. If they never even considered the possibility, that would indicate they are cognitively captured and committed to dragging this case as far as they can.

          • bmaz says:

            I have no idea what you are talking about, but trust me Walker understood the various permutations of how this might play out. And he entered the ruling he did because that was the one the pleadings and rulings set up, as well as the what the plaintiffs asked for. Walker did not lodge the proposed form of judgment, the plaintiffs’ attorney Jon Eisenberg did.

            • b2020 says:

              OK, I’ll take your word for it.
              In any case, here is the part I don’t get at all:

              Al-H Oregon was designated SDGT and banned by OFAC in 2004.
              The actual charges against Al-H Oregon were dropped by the Feds over the protest of the Al-H attorneys, in 2005.

              In between these two events, United Nations Security Council Committee 1267 listed Al-H in Sep. 2004 as “associated wit al-Qaida”, and Saudi-Arabia cracked down on the foundation. Then the Feds stated that proving their case against Al-H Oregon specifically was a waste of money, packed up and moved on.

              To what extent is the UN listing of Al-H Oregon dependent on the OFAC designation?
              To what extent is the UN listing of Al-H Oregon relevant under US law?

              If there is no dependency, then does it matter whether the OFAC decision goes down with the illegal taps? The DOJ presumably has the UN designation to cover, whatever the outcome regarding the OFAC designation.

              If there is a connection, what does that mean for Al-H Oregon?

              Has Al-H Oregon ever been found guilty of the government accusations? In a US court? In another country, through a procedure that is revelant under US law?

              The government froze their assets. But in the absence of an actual judgement against them, can they sue to have them unfrozen? Can they sue to have the OFAC designation repealed? They could not get the judge to prevent the Feds from dropping their charges in 2005. Does the Walker decision (if not appealed) change this situation?

              If they can file the wiretapping suit, what is to prevent them from seeking full rehabilitation? How can a “defunct” organization sue in the first place? If their assets were frozen because of secret evidence soon to be publicly dismissed, isn’t getting the accounts unfrozen the next logical step?

              The whole setup is strangely suspended in empty air. What exactly is the governments case to freeze Al-H Oregon’s accounts?

              • bmaz says:

                As to Walker, I said what I did because he has been about three steps ahead of the government consistently for two or three years (and a step or two ahead of even the plaintiffs for that matter); he has really been something on how he has handled this litigation. That is why i think he has thought through the possibilities so meticulously; he is just that kind of guy.

                As to the designation stuff, Marcy could answer that better than I. However, al-Haramain Oregon is effectively defunct. They have petitioned to have the designation removed by the Treasury Dept. and I believe that is still ongoing, but it is a lame process. Also, there is still a trumped up criminal case against one of the leaders of al-Haramain Oregon, Pete Seda, pending in Oregon District Court with a putative trial date set for June 7. The government has continued this case for years though, so there is no real belief they will go forward.

                • b2020 says:

                  “I said what I did because he has been about three steps ahead of the government consistently for two or three years”

                  Sorry, I did not mean that ironically – I am taking your word for it. I think ultimately I didn’t even doubt Walker’s ability to see the various parts of the fallout ahead of time, I suppose I was skeptical whether he bothered to consider. Because I had the – layman – impression that he simply wanted to give the DOJ a way out – after all, Kafkaesque wrinkles aside, it seemed convenient for the administration to not have their excessive secrecy claims rejected in a manner that would ultimately force Congress to act.

                  But the consensus here seems to be that Walker quite likely is twisting the DOJ to the full extent that honest legal reasoning permits, and enjoying himself in the process. I can dig that – I certainly dig the Catch-22! – but at the end of the day I was hoping for more. It is one thing for our most competent judges to play complicated games, it is another for the judiciary being reluctant to challenge rogue administrations and dysfunctional legislature. I get that Walker does not want to overreach and give the DOJ an easy opening for an appeal that would get them out of the bind. Still…

                  The executive, throughout three administrations, has bent and broken the law, a large enumber of people died in the process, and nothing has been resolved. Congress has abdicated its responsibility wholesale. I can see that the prospects are daunting for the judiciary, and that judges cannot fill the vaccum left by Congress, but I cannot help wonder whether this is the worst Walker could do to a DOJ in which corruption has replaced competence.

                  • bmaz says:

                    Well, he has been meticulous as to how he has framed the process and in adhering to the law so it would stick. I think he has done pretty much everything he could soundly do and he is also constrained by decisions the plaintiffs have had to make as to which path to proceed down. Honestly, other than a few people here that have been deep into the case for years, I don’t think many ever expected him to go anywhere near as far as he has. In my mind he has been fantastic.

                    • b2020 says:

                      I can agree with that. I remember, in the very early days, thinking that this would go exactly nowhere. I suppose I am just not cut out for the amount of patience it takes to resolve anything of importance. It’s funny – I am usually the one making the case that a focus on SCOTUS nominations in the hopes for change is wrong – change has to originate in the legislature, and if we cannot get our directly elected representatives to promise and deliver change, why would a judiciary – with the mandate to represent the law, not the will of the people – be able to rescue us from our own Congress?

                      I was reminded of this when I read the comments on the Kennedy verdict and its implications re: torture as acknowledged fact, contrasted with the carefulkly evasive Kessler decision (referring to abuse and stated “torture or coercion”). Maybe the legal mind is predisposed to hesitate to put anything in the written record because of an awareness that every word matters, and does not want to answer question that have not been asked.

                      Except the Roberts court, of course, on CREW vs CU :). So I can see the merit. Thanks for reminding me.

          • DWBartoo says:

            It is charitable of you to term it “bumbling”, but Walker has had rather a dose of such “incompetence” (and even arrogance) from Obama Co. already, which is why I wondered about his level of annoyance.

            Several years of observation has shown that bmaz is seldom amiss in his musing about judges, a professional tool of great value one imagines, but especially useful, in matters of conjecture, to the rest of us.

            A judge’s “nudges”, and in Walkers decisions, especially, are always of interest.


  7. nomolos says:

    Can Judge Walker impose a further penalty on delayed payment; Say double every day not paid or some such thing?

    And what is the hardship about coming clean about something that started under bush unless, of course, it is still carrying on.

  8. Mary says:

    OT – but since now the headlines on the Sup Ct are that Obama has decided since the right will fight ANYONE he picks, it’s been “liberalating” and he now feels like he can pick a liberal justice.

    Uh huh.

    So that will make it really really interesting to see what Obama considers a truly great and liberal pick for the court.

    • bmaz says:

      Well the most liberal that he has even considered is Diane Wood, and she is sure no Chemerinsky or Karlan. That said, I would take Wood in a second compared to his other ideas; in fact she was my choice over Sotomayor the last time.

  9. earlofhuntingdon says:

    Nifty little self-made problem. Methinks it is one of thousands of similar such problems. There are mostly likely others on the terrorism [sic] watch list who are there by mistake. Ditto the No Fly list and other government lists of enemies [sic] that we may not know about. After all, the vegan groups in Minneapolis were on somebody’s list of “dangerous” potential troublemakers, based on something, one would hope, besides a bureaucrat’s disdain for non-red meat eaters.

    Admitting there’s one hole in the dike might let water pour through a thousand other holes the government is pretending aren’t there.

    Mistakes, errors, weak evidence, illegally gathered evidence, evidence not or poorly analyzed, no reviews of decisions, no appeals process through which to get off such lists or even to correct wrong facts or to reverse absurd overreactions by government.

    One would think that Mr. Obama, who is intellectually aware of the importance of due process in law and civil society, would want to open that particular Pandora’s Box bequeathed him by his predecessor. He can’t keep them lying under the carpet in the Oval Office forever, can he?

    Or is Rahm still whispering in his ear that if he ignores those many boxes under the carpet, they won’t haunt his sleep and our lives, an unkindly twist on Field of Dreams logic. Who wants to tell Rahm that the story about a ghostly baseball team is a fantasy?

  10. bmaz says:

    Looks like the government has lost one its few real counter-terrorism pros, Phillip Mudd:

    Many people inside and outside the government who know him or know of him said Mudd’s in-depth knowledge of Al Qaeda and its assorted affiliates—as well as the “lone-wolf” phenomenon—was unsurpassed, but that he also had a sophisticated and nuanced view of the terrorist mindset. He is known to have expressed the view that Americans sometimes helped terrorists achieve their objectives by overreacting to events like the underpants bombing attempt of last Christmas, and that it might be better to treat terrorist suspects like criminals rather than war fighters because the latter status gave them more esteem than they deserved and catered to their martyrdom fantasies.

  11. bmaz says:

    OH NOES!!! How will the howlers feel about civilian trials on American soil for pirates???

    At least five pirate suspects will be brought to Norfolk, Va., by the end of the week to stand trial in the United States, a federal law enforcement official said Wednesday.

    The suspects will be tried in the U.S. court system because the African nation of Kenya began refusing to take piracy suspects earlier this month. The Kenyans say the trials of alleged pirates from the Gulf of Aden and the Indian Ocean were straining its courts.

    ”This is where all countries have to step up just as we are doing and take responsibility for pirates who have attacked their ships and prosecute them to the fullest extent of national law,” State Department spokesman P.J. Crowley told reporters.

  12. harpie says:

    rant warning!
    I realize numbers like 1.5million and 5 million are a drop in the bucket, but it’s infuriating that even though we have seemingly no power to affect the actions of our rulers, we are none the less first subjected to and obliged to pay for their malfeasance, and then are also required to dole out the money for the cover-up of the malfeasance and the litigation of the malfeasance and the outcome of the litigation of the malfeasance…

  13. Archie1954 says:

    There is absolutely no problem whatsoever with the payment or anything else the government wants to do as it has been doing illegal things for many years and nothing has transpired. There will be no investigation or prosecution of the justice department since it is the justice department that does it. If Bush and Cheney can commit war crimes and get away with it why should anyone worry about paying an innocent party for being illegally railroaded by an immoral and unethical government? Is that question too difficult for you?

  14. fatster says:

    This is O/T but also pertains to part of the discussion underway here.

    Poll shows that more registered voters approve of the job Chief Justice Roberts is doing than approve of the job President Obama is doing.

    You’ve got to factor in racism, the tea-buggery insanity and all, but still . . .

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