Government Remains Belligerent in al-Haramain; Will Fight On

Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going to pay $200.

The government is fighting how long the surveillance occurred:

While the $100 per day of violation is an alternative amount of liquidated damages under Section 1810, that alternative turns on the fact issue of how many days the purported violation occurred. Thus, the total amount sought for daily damages must be supported not merely by a finding that plaintiffs had been intercepted, but on how many days that any violation of FISA Section 1809 occurred.

The government does not admit that plaintiffs were illegally surveilled, but argues if they were they were not illegally surveilled for the number of days claimed by plaintiffs. Gosh, if you didn’t know better, you might think the government is suddenly arguing the merits. But, of course, they will not admit to that either.

The government is fighting on even the availability of punitive damages:

In addition, even if punitive damages were available against the United States under Section 1810(b), plaintiffs’ proposed judgment fails to establish any factual basis for such an award. See Molzoff v. United States, 502 U.S. 301, 309 (1992) (punitive damages “embodies an element of the defendants’s conduct that must be proved before such damages are awarded”).

The government is fighting over whether the illegal fruits of their illegal surveillance can be suppressed and/or scrubbed:

As a threshold matter, the equitable relief plaintiffs seek as to alleged documents and information is not authorized by the cause of action at issue here.
Nor does § 1806(g) authorize the expungement remedy that plaintiffs seek. That subsection only provides for suppression of evidence unlawfully acquired by electronic surveillance of an aggrieved person with standing in an ongoing proceeding.
Plaintiffs have not alleged or shown that they are facing any threat of irreparable harm, let alone a real and immediate threat of irreparable harm, from the alleged existence of the allegedly unlawful electronic surveillance in the Government’s files and records. As noted above, plaintiffs’ request is not made in the context of any ongoing proceeding against them, nor have they made any showing of any anticipated action against them. Finally, balancing the relevant interests would again require disclosure of whether or not plaintiffs were in fact subject to electronic surveillance, whether any information derived from such surveillance exists and what it may indicate information that the Ninth Circuit found is protected by the state secrets privilege.

Hell, the government is even fighting and denying that Judge Walker even has the power to decalre their conduct illegal:

Paragraph six (6) of plaintiffs’ proposed judgment also seeks the “equitable relief” of a declaratory judgment that the “defendants’ warrantless surveillance of plaintiffs was unlawful as a violation of FISA.” See Dkts. 723/117 at 3. The Court lacks jurisdiction to enter such relief. Section 1810 does not authorize the entry of any equitable declaratory or injunctive relief.

Oh, and the government does not think plaintiffs are entitled to attorney fees either and certainly not at this point. The bad faith joke of a judgment the government is willing to have Vaughn Walker sign is attached to the tail of their extended whining. Read it and laugh. Funny thing is, if you didn’t know better, you would say the government is actually fighting on the merits right now.

So, in sum, the government is not remotely close to conceding judgment, paying and walking away. And they are still determined to spit in Judge Walker’s eye at every possible opportunity; and sure have done so here. To me, based on my experience with courts and advocacy, the DOJ’s attitude is so malignant and unsophisticated that the only explanation is that they are desperately trying to get Judge Walker to lash out at them in order to contaminate the record. It is either that or Coppolino, Hertz, Letter et. al are such crappy lawyers they simply do not know better and, as craptastic as some of their work has been in this case, I do not buy that they are that poorly skilled.

And so we move on with the further litigation of al-Haramain v. Obama. The next activity expected in the case is this Friday, May 7 when the court has set Plaintiffs’ brief in support of punitive damages as being due. After reading this tripe by the government, I have a feeling the Plaintiffs may have more than a few things to say.

75 replies
  1. MadDog says:

    Double down!!!

    I knew it!

    Been meaning to ask you bmaz if you’d heard anything about the government’s response since they had until Friday last week to respond to the plaintiff’s last submission and nothing had shown up over at EFF.

    Glad to see you post this so I can revel in my predictive success. LOL!

    • MadDog says:

      Do you mean this one:

      Former Guantanamo detainees set for payouts after winning secrecy appeal

      …The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed…

    • earlofhuntingdon says:

      Wonderful ruling, especially coming from Lord Neuberger (as Master of the Rolls, he is the top judge for civil cases) who once criticized making the law lords independent from the House of Lords. The UK’s Supreme Court came into being last October.

      Two aspects of this decision leap out: the appeals court rejected the government’s claimed use, in effect, of a secret trial, based on secret evidence, the very things the Bush and now Obama seem most desperate to legitimize here. Lord Neuberger said, in effect, that permitting such things would tear out the heart of the common law.

      As a consequence of the government’s loss on those issues, British Gitmo detainees are likely to win cash settlements from the UK government. The center-right Obama isn’t likely to follow suit any time soon, methinks.

      • earlofhuntingdon says:

        Technically, the Master of the Rolls is the senior judge for the Court of Appeals, Civil Division. (His counterpart, presiding over the CA’s Criminal Division, is the Lord Chief Justice.) Appeals from a CA decision are to the Supreme Court, ordinarily by leave of the court, not by right. That Lord Neuberger, the MR, was so unequivocal, does not bode well for an appeal.

        • boltbrain says:

          Guess I missed the news of the revolution; I always thought the House of Lords was the last stop. It looks like the British had to do it to comply with the European Human Rights set-up; which, when you think on that just a little bit, has to mean this might have wider implications than just the ‘special relationship’.

        • earlofhuntingdon says:

          As from October 2009, under the terms of the Constitutional Reform Act of 2005, the law lords, in their judicial capacity as the senior court of appeal, were removed to their own independent court, the Supreme Court, which physically lies across Parliament Square from the House of Lords.

          You’re right, a principal argument for doing this was adequately to separate the judicial from the legislative functions so as to comply with requirements of the European Convention on Human Rights and Fundamental Freedoms. It was thought that having the court of last resort ought not to be part of the legislative body that passed legislation that court would often be reviewing.

          One suspects there were many other reasons for this partial institutional devolution, some related to Blair’s determination to reform the Lords and make it more amenable to “new” Labor’s aims. The estimated initial cost to set up the Supreme Court was just shy of 60 million pounds, probably what the House spends on reimbursing its members’ T&E expenses for a year.

  2. MadDog says:

    And I’m still of the view that the Feds want this moved to the next level (9th Circuit Appeals) where they believe they’ll get relief from all the grief Walker has given them.

    • bmaz says:

      They ain’t gonna get any relief from the 9th. For starters, the appeal will go back to the same panel that has had it twice before, and they are not real friendly to the government on this case. The only way there would be any relief in the 9th is if the en banc panel reverses the previous ruling on Jeppesen and I think Royce Lamberth left a marker for the 9th in that regard. The Supremes, now that may (or may not) be a different matter.

      • MadDog says:

        Yes, I was thinking en banc, but also the fact that the 9th said States Secret Privilege is still a valid argument and then deferred to Walker on whether FISA trumped SSP.

        And on that particular point, they have not ruled yet as to whether Walker got it right or not.

        • bmaz says:

          I think al-Haramain can make it past the 9th on their own; if the 9th holds tight on Jeppesen, then there is no question.

      • b2020 says:


        Frankly, I can see corrupt souls like Roberts or hollow men like Thomas suppress their ego for the good cause of government corruption and coverup, but I can’t see – even with “Bush vs. Gore” taken into account – Scalia swallowing this kind of DOJ BS. Has the DOJ team managed to construct any sparkling, brilliant act of sophistry that would allow the supremos to do the wrong thing and look sufficiently original and smart at the same time?

    • bmaz says:

      By the way, I thought you had joined up with that other person (who seems curiously scarce currently) who had predicted the government would cave and pay.

      • emptywheel says:

        Me? The one who just said you told me so lalalalalala?

        You. Told. Me. So.

        Fucking crazy Admin. You think Vaughn was pissy at the ACLU? He’s gonna be a hell of a lot pissier now.

        • bmaz says:

          Heh, Coppolino sure could have accomplished the requisite goal without jabbing this crap in Walker’s eye. It is really kind of stunning.

      • MadDog says:

        Nope, I made the bet that the government wouldn’t surrender.

        Basically I was of the opinion (and still am) that there was little cost to the Feds in continuing the fight, and potentially an enormous cost to crack the previously impenetrable barrier that is SSP.

  3. orionATL says:

    do you see a strong similarity between the doj’s attorneys and the fuck-you corporate attorneys this nation has to abide these days?

    i do.

    lie to the courts, charge judges with bias when they call you on your lying, hide or destroy discovery documents, refuse to acknowledge the other side’ s reasonable concerns, manufacture trivial charges against knowledgeable third parties who might testify against you (charges that are false in any but a technical sense (robert jackson’s “political prosecutions”)).

    in short,

    a subset of profoundly morally corrupt lawyers for the powerful.

    it’s unlikely to happen any time soon,

    but there WILL have to be an accounting of this style of lawyering for the powerful in american society.

  4. emptywheel says:

    And for the record, bmaz (and MadDog and Mary) told me so.

    I’m particularly interested in their refusal to say they can purge this info. We knew that was going to be a problem. The Newsweek piece said they were just worried about paying terrorists (or rather, their lawyers). But I guess that’s not all.

    • MadDog says:

      …I’m particularly interested in their refusal to say they can purge this info. We knew that was going to be a problem…

      (My Bold)

      Speak for yourself oh prescient one! You are the one who nailed this and nobody else.

      And in there anyone in the MSM who has a clue about this? Not bloody likely!

      • bmaz says:

        Well, Iski thinks it is all about the bit about paying a “terrorist group”. But that was never really it; there are all kind of ways around that if you want to be creative. The supposed conundrum of paying a designated terrorist group was always just cover.

        • PJEvans says:

          They don’t want to admit that they have no effing clue which groups actually are terrorist and which ones are only on the list for political purposes.

        • MadDog says:

          I do think orionATL at # 18 makes an excellent observation.

          I don’t really have a sense whether White House politicos played a role or not, but one could easily imagine the this as political dynamite.

          For the WH politicos, the optics of paying a terrorist organization ain’t good.

          I do agree there may be creative ways to finesse the “payment”, but even then the Repugs would ignore that finessing and beat their drums on Obama coddling terrorists.

          The Repug offensive would go something like this: “Obama doesn’t just negotiate with terrorists, he rewards and pays terrorists!”

        • Skilly says:

          I think BMAZ is dead on here about cover. This was a GWB mess left for Obama that the court ordered. They can blame it on the court or the Past admin, if they were inclined to let it go.

    • earlofhuntingdon says:

      I should think the government is concerned with “allowing” this loss to be established as good law that can be cited as binding or persuasive in other federal courts.

  5. Hmmm says:

    Certainly smells like a bizarre try to freeze the status quo in terms of precedent-setting until such time as the appeals play out… but per bmaz@7, why? What might DoJ know about the situation in the 9th that we don’t (yet)? Do they have other cases live that entry of final judgement here would screw?

  6. orionATL says:

    al-haramain v obama.

    that’s your answer to “why go forward”.

    prez agrees to pay terrorist”.

    and nov, 2010 not more than 6 months away.

    boy, obama sure ” has” to give up a lot in the way of principles to duck and dodge right-wing corporate political

    wonder if he will ever throw down the glove and begin fighting back?

      • PJEvans says:

        ‘second term’ is way the hell premature.
        He’s working really hard at being a one-term president. Unfortunately.

        • Hmmm says:

          Jeez you guys, it was a ‘what if’, not a pom-pom cheer for PBO. I’m fully as disgusted as you are.

        • bmaz says:

          Heh, I have no idea. And most new administrations have a rough first year in some regards. It is way to early to guess either way; but the cosmic glow has worn off, it is certainly no shoo in right now.

        • b2020 says:


          On balance, I’d much rather have an insane-incompetent MacCain/Palin administration make the case for
          * “extraordinary” rendition
          * “indefinite” detention
          * “enhanced” interrogation
          * “extralegal” assassination
          * military “comissions”
          * prosecution for “war crimes” that are not
          * no prosecution for war crimes and torture
          * continuation of Gitmo
          * surging for Bagram
          * illegal “compound stress and isolation” torture per AFM

          I’d rather have no health care reform *and* no health industry IRS-enforced bailout by mandate, I’d rather have no trillion dollar Fed shell-game through treasury guarantees for junk collaterals force-fed to Fannie/Freddie.

          In the face of malice, there is a case to be made for raging incompetence.

          Two terms of this? Who’s going to be next, Jack D. Ripper?

        • Synoia says:

          Yes O’Rhama will probably win a second term.

          His strategy is to elect a Republican House and if possible a Republican senate, and then run against theme,

          “See what I have protected you from”


          “You need me to me reelected to protect you from them”

          all the while cutting pro-paymaster, bribery, deals in the back offices.

    • topcat says:

      The ability to monitor telephone calls in real time has been around for quite a while – remember the stories about “cloners” intercepting people’s phone information and using it to create and sell “clone phones”? It’s the same technology, only airborne. They use one or more scanners to locate the phone ID they are seeking and simply extract the voice data. There’s nothing new here except the acknowledgement that the military and FBI are using it, which many of us would assume is true anyway.

      But here’s the bottom line on cell-phone tracking; if your phone has the battery in it, your phone can be located to within 15′ and it can be turned on without your knowledge to listen to conversations and sounds in the area. The only way to prevent this is to remove the battery. Anyone engaging in conversations and/or activities they wish to keep from the government should be cognizant of these facts. Your cellphone is a tracking and monitoring device for any government agency that wishes to use it as such.

      • Hmmm says:

        I don’t disagree with what you’ve said about mobile phones. But if you haven’t already, I recommend you read all the reports on what happened in NYC because it seems to have been much broader than just mobile phones; for example, Bluetooth signals (not limited to mobile phone headsets/earpieces, as PlayStation wireless BT controller pads were mentioned in one report).

      • DWBartoo says:


        Would you consider a diary regarding what you have just put before us?

        Even as Hmmm has suggested, @ 65, the “problem” (if that is what it is) is most ubiquitous.

        And most people, certainly most Americans, and even many who visit this site, would profit from the knowledge you have shared.

        A word, as it were, to the wise.

        (And appreciated, hereabouts.)


  7. earlofhuntingdon says:

    Just playing for time and documenting the record – or trying mightily to obscure it – for the inevitable appeals to the circuit court and the Supremes. As much as he might take offense at being spat on by his government, I suspect Walker will do his level best to document this for appeal from his perspective, while pointing out the enormity of the government’s position and arguments.

    But it does make you wonder about the number of Bush holdovers at the DoJ and gives one the feeling that Holder and Obama also prefer to institutionalize a defanged incompetent DoJ to one with the teeth, the eyes, the legs and the hunger of a predator.

  8. orionATL says:

    hmm @25

    damn, they’re still down.


    on the top of the front page in sundays nytimes was the picture of a policeman,

    with mayor short-but-rich in the background.

    this policeman,

    standing in times square,

    looked for the world like a soldier who had just walked out of a village in afghanistan.

    he was wearing a soldier’s helmet, body armour, and prominently carrying a military assault rifle (lots of bullets in fractions of a second).

    the only way you might know he was a policeman was the emblem on his arm and his holster and pistol (right thigh).

    what the hell was an american policeman doing in times square area totin’ an assault rifle which
    he would not dare use there?

    photo-op for the mayor.

    the first time i saw a media picture of this tableaux, it had been acted out in one of our domestic airports sometime after sept 11,2001 (another place you do not want to
    use automatic wespons).

    policemen in costume, dressed up as soldiers

    – political simiotics gone wild.

    and now military drones over nycity?

    • Hmmm says:

      and now military drones over nycity?

      Story said ones with signal listening gear and men inside, not offensive weapons. Make you feel better? Me neither, not much.

      • b2020 says:

        In 20 years, brave and heroic law enforcement officers and patrolmen will be sitting in underground bunkers remote controlling “Public Interface” bots armed with tasers, pepper spray and shotguns, topublicly “interface” with concerned citizens.

        Force protection is the word. If it works over there, it will sure work over here.

    • posaune says:

      Tinfoil time:
      You know, I think the gubmint savors the opportunity to post pictures of assaut-rifle carrying cops on the front pages. It’s conditioning! And they’ve conditioned the little people to be afraid . . . . of them, our govt, the civil servants whose salaries WE pay. The message? Don’t take to the streets people. Even if you don’t have a house and a job and are a slave at the mercy of the corporate ruling class.

  9. orionATL says:

    hmm @35


    we-dont-need- no-f-kin-military

    in our domestic policing.

    there is nothing police cannot handle w/out military

    save disasters where the nat guard are exceedingly valuable.

    what i worry about is creeping authoritarianism; stuff that is hard to eradicate once it takes hold.

    • harpie says:

      That “creeping authoritarianism” is a pit-bull, and the bleeding victim is US.

  10. Peterr says:

    The government does not admit that plaintiffs were illegally surveilled, but argues if they were they were not illegally surveilled for the number of days claimed by plaintiffs.

    You know, if the government convinces Walker that this argument has merits, the discovery will be quite something. I can just see the government trying to protect themselves by saying “No, we won’t let you see our records, but you didn’t guess the right number of days. Keep guessing, and we’ll tell you if you are right.”

  11. TarheelDem says:

    Are there some civil service class DOJ lawyers setting themselves up to be fired for cause? Can they possibly win this case with this sort of behavior? And win or lose, they become toxic professionally.

    Judge Walker so far seems to be focused on not contaminating the record. If he follows true to form here, what is the next tantrum that the DOJ lawyers can throw?

  12. b2020 says:

    Proof positive – bmaz was right, my skepticism unwarranted, Walker certainly did not make them an offer they wouldn’t refuse.

    The question is, what is the outlook? It should be clear even to Bygones Obama and his B-Holder that they will not get more, and likely get less from Walker, and it should also be clear that if the man hasn’t blown a fuse so far, he sure will not now just because the DOJ is showing even more pitiful disrespect for the letter, spirit and rule of law.

    So they are counting on an appeal? Which would land in which court, with what judges? Given DOJ conduct and the whole stench of “just what are the rights and privileges of the court according to you?”, can they possibly hope for a convenient authoritarian ruling anywhere along the way to the SCOTUS?

    • harpie says:

      Given DOJ conduct and the whole stench of “just what are the rights and privileges of the court according to you?”, can they possibly hope for a convenient authoritarian ruling anywhere along the way to the SCOTUS?

      [I am totally out of my depth, but I think this may be related to the discussion.] Scott Horton recently addressed DOJ [mis]conduct in a speech [linked in “When Prosecutors Run Amok”; 5/4/10]:

      in which he says [emphasis added]:

      The Justice Department has created a system in which its own power is paramount, Congressional mandates are meaningless and its prosecutors are subject to no accountability.
      I think it may have created a situation in which the current Supreme Court, which is conservative and generally extremely prosecution-friendly, may feel compelled to take some action. And indeed, the stage may now be set for just that as Pottawattamie County v. McGhee, a case out of Iowa winds its way before the court, seeking review of the long-established court doctrine of prosecutorial immunity. Will the Supreme Court punch some holes in this doctrine? We’ll know soon. If the answer is yes, then I suspect it’s the recent torrent of abuse, coupled with the Justice Department’s adamant refusal to discipline itself, that led there.

      In the first of six suggestions for “remedial steps”, he suggests every lawyer nominated as a federal prosecutor should memorize AG Robert Jackson’s speech “The Federal Prosecutor”. In this speech, Jackson said [emphasis added]:

      “[…] Nothing better can come out of ‘this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. […]”

      The Federal Prosecutor; Robert Jackson; 4/1/40

      • earlofhuntingdon says:

        Horton has repeatedly mentioned former AG and Sup. Ct. Justice Jackson’s standards as the antithesis of those adopted by the Bush and Obama Justice Departments. He would seem to be correct.

  13. DWBartoo says:

    Thank you for the up-date, bmaz.

    One hopes that Judge Walker continues to “enjoy” himself, as the government, predictably (even as you, Mary, MadDog, and others have done with devastating humor and delightfully keen insight) and arrogantly continues along in most-asinine fashion …

    Which is almost pachydermal, philosophically.


  14. pdaly says:

    Glad to hear the story continues.

    Hoping this leads to more information coming out.

    As a non lawyer, I’m still confused what the “proposed judgment” by al-Haramain and the DOJ means vis a vis Walker’s “summary judgment.”

    And that this is different from “settlement.” Could someone explain?

    • bmaz says:

      The court entered its order deciding in favor of al-Haramain. But there are many details to a final judgment other than just that general decision. Once the general decision is entered, it is up to the victorious party to submit a written formal proffer of what they think the final judgment to be signed by the court looks like and contains. It is called a “form of judgment”. The losing party then has the opportunity to object or submit an alternate form of judgment. In this case, the DOJ belligerently did both and decided to add in all kinds of arguments that have already been repetitively argued and denied by the court. Once both positions are in front of the court, the court determines what the final judgment it will sign for the record will look like. In this case, there is also the extra step on briefing on the issue of punitive damages the court ordered, which must be considered before its decision on the final form the judgment will take.

      • pdaly says:

        The losing party then has the opportunity to object or submit an alternate form of judgment. In this case, the DOJ belligerently did both and decided to add in all kinds of arguments that have already been repetitively argued and denied by the court.

        bmaz, thanks for the clarification. That the DOJ was doing both was adding to my confusion–the DOJ was acting as if the case had not been decided already.

        Assuming the DOJ appeals the decision, (and assuming DOJ loses their appeal(s)), does the al-Haramain case as a precedent beome more widely applied than if it remained a decided case in the pre-appellate level?

        Or do the strict requirements for standing that al-Haramain had to conform to continue to narrowly the number of subsequent claimants with similar proof of government wrongdoing? I’m hoping a win for al-Haramain at some level causes an unwinding in whole or part of the illegal US eavesdropping program on American citizens.

        • bmaz says:

          Certainly an appellate decision confirming Walker adds substantial strength and reach of the decision (especially if it were by the Supreme Court). Standing is a different matter. Few plaintiffs, if any, will ever have the ability to establish standing as al-Haramain did; and that will not change. Plus the Fisa amendments Act legalized a lot of this. It could, however, be the most important piece in attacking the foundation for the Bush/Cheney crimes as any to date.

        • pdaly says:

          I was wondering how the reach of the decision could be extended if requirements for standing remained the same as for al-Haramain.

          If the decision “only” helps to breach the firewall on Bush/Cheney crimes, that would be good enough for me. Hoping the unravelling happens faster than Obama and the Congress normalize the behavior.

        • bmaz says:

          That is the best we will really get because the ground has been changed by a craven Congress legitimizing much of the activity and making it much easier to interstitially hide illegal conduct. I think the more helpful case for what you are looking for is Jeppesen.

  15. bluewombat says:

    Thank you so much for following and reporting on this story, since the corporate media can’t be bothered.

    To me, this says that while Obama presents a “kinder, gentler” face to the world (to use Bush 1’s parlance), the only differences between him and his predecessor, Bush 2, are cosmetic.

    And most Americans can’t see that. B-r-r-r, is it just me, or is it cold in here?

  16. harpie says:

    I thought it was against the law to use the military domestically.

    Then, on October 23, 2001 Yoo [OLC] wrote a memo to WH Counsel Gonzales which said that the Fourth Amendment doesn’t apply to military operations abroad or in the US:

    This memo, titled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, concludes that the Fourth Amendment’s protections against warrantless search and seizure don’t apply to military operations, even when the operations take place on U.S. soil.

    On October 6, 2008, Bradbury [OLC] wrote a memo to “The Files”
    Explaining why…

    “appropriate caution should be exercised before relying in any respect on the 10/23/01 Memorandum as a precedent of OLC, and that the particular propositions identified above should not be treated as authoritative.”

    …but has the 10/23/01 Memo ever been rescinded?

    Then, on 5/4/10, Jeremy Scahill writes: “Were US Special Forces Involved in the Arrest of Faisal Shahzad?

    I’m confused.

  17. orionATL says:

    harpie @53

    thanks for bringing horton’s column into view.

    i love the justice jackson speech that discusses and defines political prosecution. i learned that from one of horton’s columns discussing the political prosecution by rove and alabama u.s. attorneys general and judges of former ala dem gov don siegelman.

    the siegelman pro-/per-secution is one of the
    most shameful injustices perpetrated by the bush doj-and that is saying a lot for the most corrupt doj in many decades.

    shameful, too, that ag holder and pres obama have done nothing to relieve the injustice suffered by seigelman,

    or even to remove the perpetrators from their deputy attorney general slots in ala.

    p.s. being in one’s depth requires only wading; being out of one’s depth demands swimming. swimming is fun, dangerous, and good exercise.

    besides, as has oft noted, serious matters of politics and public policy are too important to be left to experts alone, e.g., leaving the law to judges and lawyers only, despite its daily effect on each of our lives.

  18. Mary says:

    OK- EPU’d here, but at least when it first came out I wasn’t so late to note that I thought Gov would dig in …

    … and I stick by my primary observation there, which has been noted here in comments in a little different context

    I’d tend to think Gov will appeal for a few reasons.

    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.

    So I think the only thing I’d disagree with bmaz on, and it’s not so much disagreement as a shift in perspective, is the extent to which the optics of payments to “terrorists” were “just” cover.

    The optics do drive Obama – his rendition of Shallow Hal is more articulate than Bush’s, but it involves just as much clinging to the need to convince others that ankle deep waters can be sold as being “deep waters” with the fuss of too much adjectivization.

    But he does drive optics just as much as they drive him. So the real issue is why has he never sought to drive the optics in any fashion other than to have them lend support to torture, torture as an acceptably secret govt practice, government torture as a practice whose victims are somehow defacto “terrorist extremists” etc.

    He could have long ago, as he was signing off on his “order” to “abolish” Gitmo, made public the Aug 2002 CIA memo explaining how many “mistakes” were being held and tortured at GITMO and he could have used his pulpit to drive the optic that such unfair and unjust treatment has reprucssions and those reprucssions will come externally if we refust to undertake our responsbilities internally. He could have laid that memo with it’s clear revelations that Bush and Cheney and Gonzales and Bellinger and Rice and Ashcroft were KNOWINGLY engaged in the advocacy for and implementation of
    torture programs against the innocent.

    He could have changed a lot of the optics, by pieces or by large shifts, any time he chose. So he’s driven by self-selected optics.

    Some guys shouldn’t be allowed to pick out their own ties before they go out in public. Some Presidents shouldn’t be allowed to pick out their own optics before the commit a nation to folly and wrap the consequences of that folly around it’s neck.

    And yet, we let it happen.

  19. Mary says:

    BTW – thanks for the excerpting bmaz. It’s been busy here and I haven’t read the filings, but I always learn something from gov’s filings – about the DOJ at least.

    Apparently our DOJ believes that a court’s equitable powers derive only from a statutory grant – golly, these guys and gals must have gone to really kewl law schools.

  20. Mary says:

    One last thing, this – “Hell, the government is even fighting and denying that Judge Walker even has the power to decalre their conduct illegal” – in the different setting of GITMO was why I was hoping Spencer would get a chance to ask the prosecutors there or commision spox to what extent they considered themselves bound by determinations of the US courts.

    BC the truth is that their underlying approach re: commissions at all is an implicit assertion that the courts have no power over what is happening there. Too often it seems, defense lawyers with court orders have been told just that by the military at GITMO in other settings, including access to their clients. So I’d really like to have them spell it out now in a Q & A, rather than bury it for discovery years later in a pleading.

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