“Liberal” 9th Circuit Deals Death Blow To Al-Haramain Illegal Wiretapping Accountability Case

There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.

A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:

The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.

It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the court address plaintiffs’ alternative theory of waiver of sovereign immunity.

Now, more than ever, you have to wonder just exactly what is in the secret sealed filings originally lodged by the DOJ in the 9th Circuit in Al-Haramain that the government scrambled so tellingly to “correct” in November of 2009. It would be nice if the inestimable Judges Harry Pregerson, Margaret McKeown and Michael Hawkins, “liberal lions” all, would deign to tell the American public what lies and/or fraud the Department of Justice perpetrated upon the court and the Al-Haramain plaintiffs that necessitated their blatant ass covering moves in November of 2009, and how those falsities interrelated to the decision to deny justice to the plaintiffs and the American public. How do these judges sleep at night?

With that out of the way, what does it all mean? Well, the key language in the original 9th Circuit opinion dated August 7, 2012 was:

Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable. It deliberately did not waive immunity with respect to § 1810, and the district court erred by imputing an implied waiver. Al Haramain’s suit for damages against the United States may not proceed under § 1810.

In short, wiretapping crimes against citizens and their organizations cannot, under any circumstance, be addressed. Because….IMMUNITY SUCKERS!

The perspective was explained by Marcy at the time of the August 7 opinion:

Because al-Haramain, at a time when Vaughn Walker was using 1810 to get by the government’s State Secrets invocation, said “it was not proceeding under other sections of FISA,” its existing claim is limited to 1810. The government used the information collected–in a secret process that ended up declaring al-Haramain a terrorist supporter–but not in a trial, and therefore not in a way al-Haramain can easily hold the government liable for.

The implication, of course, is that all the rest of the collection the government engages in–of all of us, not just al-Haramain–also escapes all accountability. So long as the government never uses the information itself–even if the entire rest of their case is based on illegally collected information (as it was in, at a minimum, al-Haramain’s terrorist designation)–a person cannot hold the government itself responsible.

The people who can be held accountable? The non-governmental or non law enforcement persons who conduct the surveillance.

But of course, they–the telecoms–have already been granted immunity.

Yes, there is now immunity every which way from Sunday, and between the AT&T cases of Hepting and Jewel, and now Al-Haramain, it has all been sanctioned by the “most liberal Circuit” in the land. Booyah.

A last word about why the title contains the words “death blow”. In short, it is because if this case, with these facts, with that judge (Vaughn Walker), and that trial court decision, cannot make it past the rank cynicism, duplicity and secrecy of the Bush/Obama continuum of regimes, then no case can. If none of that is possible in the “liberal” 9th Circuit, with a completely “liberal” panel of judges, then it is simply not possible. Yes, it is possible that plaintiffs Al-Haramain petition for certiorari to the Supreme Court, but it is almost certainly fruitless if they cannot even make it in the 9th Circuit, and they may well have a fear of further ingraining heinous law into the national books. We shall see, but it is certainly no given.

You have to feel for plaintiffs Al-Haramain, Wendell Belew and Asim Ghafoor who lost their constitutional rights and cause of action, Judge Vaughn Walker who meticulously crafted a solid opinion working around state secrets and FISA constraints, as well as plaintiffs’ attorney Jon Eisenberg, who lost, along with co-counsel, over $2.5 million dollars worth of attorney fees and expenses, and the time those fees represented out of their lives. All down the drain to a craven Executive Branch, a duplicitous Department of Justice and a fraudulent “war on terror”. Ain’t that America.

15 replies
  1. emptywheel says:

    I should clarify something in the passage I wrote bmaz excerpted. I said, “So long as the government never uses the information itself.” I meant, so long as the government never uses it in a criminal case, when defendants get an opportunity to question this.

    But they’ve moved more and more to hiding this information from defendants (as they did in Mohamed Osman Mohamud’s case in Oregon, so covered by this 9th circuit precedent and tied to the same OR Muslim community targeted here). Thus, this immunity goes beyond even the simple suit. Bc of the way they’re keeping FISA Information from defendants, they will not be subject to suit there, either.

  2. Ben Franklin says:

    ” a duplicitous Department of Justice and a fraudulent “war on terror”. Ain’t that America.”

    Heh. Americans are the pooch who got screwed.

    $10 billion in taxpayer funds to fight the War On Drugs using mercs like Blackwater ( a term I will continue to apply to the assholes), apparently includes those states like Washington and Colorado who’s secession from that failed war has not even received a ‘fuck you’ from Obama or Holder.http://www.wired.com/dangerroom/2012/12/diplo-air-force/

    They have no intention of observing State’s rights, habeus corpus, or the rule of any Law they cannot oppose in the light of day.

  3. bmaz says:

    @emptywheel: And, as a tag along, there is no actual remedy to “individuals” either as there is no way to really access them in court. The “immunity’ circle is complete as to the past crimes. Prospectively, for cases to come, we shall see; but I cannot foresee any improvement; not in light of the permissions granted by courts and the FISA Amendments Act..

  4. bmaz says:

    @Peterr: Yes, Perry is another post I need to write before Friday when the Supremes will likely announce why they are not going to take it up, thus dashing the last vestiges of the real brilliance of Walker’s life’s work.

  5. Peterr says:

    @bmaz: Tom Goldstein at SCOTUSBlog disagrees with you on the coming announcement denying/granting cert for Perry:

    If you are offered a Supreme Court appointment, take it. Life tenure? Love it. Same for the Court’s almost absolute power to set its agenda.

    But why only “almost” absolute? The Constitution lets the Justices decide only actual “controversies.” Without a live lawsuit, they have no more power than you or me.

    And they cannot duck every issue. Their settled practice is to review every lower-court decision striking down an important law.

    The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

    In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.

    It worked. Even if the Court wants to stay out, it cannot.

    More at the link. I don’t agree with his whole post — especially the part about the justices being insulated from the media (contrary to popular opinion, I think they do read newspapers, watch tv, etc.) — but his bottom line is that SCOTUS is boxed in and has to take the marriage equality cases.

    But to go back to THIS case, the problem with the immunity cases has always been “How do you box the courts in?” when the govt is bringing every possible force to bear to keep at least one viable “no thanks” option open for them.

  6. bmaz says:

    @Peterr: Goldstein does not think any more than I do that they will take Perry. They SHOULD, but odds are they will not. And this is ALL because of fucking Steve Reinhardt and his bastardized opinion in the 9th.

    As to this case, again, that is the problem, a more masterful job of framing is hard to imagine above what Vaughn Walker did. And, yet, this.

  7. rugger9 says:

    It will be a sign for future historians about how the American experiment died in pieces. It’s not like we don’t know better, and we weren’t warned from the very beginning, most notably by Benjamin Franklin. We really don’t have a republic we can keep any longer, because we traded liberty for the perception of security.

    Drone assassinations on Presidential say-so [if even that] that kill innocent Americans with barely a peep from the Beltway VSP. That’s what happens when six mega-corporations own something like 90% of the media access: sheeple and groupthink on a grand scale.

  8. GKJames says:

    It’s a consensus, then. With Judiciary, Executive, and Legislative all in agreement on preventing a remedy and effectively immunizing the government, can someone remind me as to why we still need three branches of government?

  9. earlofhuntingdon says:

    The GWOT will never die until it stops being profitable. If a little law and a lot of people have to fall by the way side, well, they’re just unfortunate mustard seeds that will never rise to see the kingdom. And to think that it is the US, in a classic Rovian reversal, that claims to be fighting extremists “over there” so it won’t need to fight them here. True, perhaps, but only if one assumes the extremists over here have already won. Thanks, bmaz.

  10. pdaly says:

    Disappointing news. It wouldn’t hurt, however, to diagram what COULD have been had al-Hariman won its case.

    How much fall out would have resulted? That’s what I would like to think about.

  11. bmaz says:

    @pdaly: Wow, good question. But, it is almost like “what if Gore had been rightfully declared the winner in 2000”. The spider web of alternate reality spreading out might yield a far different world. Much as this sucks, nobody who really watched it expected anything different once the three judge panel set the tone on August 7, 2012.

  12. klynn says:


    That is a great suggestion. I am not a total fan of “what if” thinking but done right, the diagramming of results that would show the pathway to constitutional policy may show a strategy worth addressing.

  13. masaccio says:

    In the last few years as I watch the rule of law deteriorate, I have become convinced that the courts will let democracy slip into the dustbin of history.

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