This time in the al-Haramain case.

The argument in this new filing is substantially the same as they made in January, particularly in their misrepresentation of Judge Walker’s approach to classified information. Once again, they suggest Walker has ordered the wiretap log declassified (though they do so less dishonestly than they did in January), when in fact Walker has ordered the government consider what can be declassified.

The Court then held that it would review, initially ex parte, the Sealed Document that was the subject of the state secrets privilege assertion and will then issue an order regarding a factual question at issue in that privilege assertion— “whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA.” Id. at 23. The Order then adds that fully ex parte proceedings under Section 1806(f) “would deprive plaintiffs of due process to an extent inconsistent with Congress’ purpose in enacting FISA Sections 1806(f) and 1810.” Id. Accordingly, the Order “provides for members of plaintiffs’ litigation team to obtain the security clearances necessary to be able to litigate the case, including, but not limited to, reading and responding to the court’s future orders.” Id. The Court’s Order also “specifically rejected” the Government’s assertion that the Executive branch controls access to classified information, see id. at 21, and held that Section 1806(f) “leaves the court free to order discovery of the materials or other information sought by the ‘aggrieved person’ in whatever manner it deems consistent  with section 1806(f)’s text and purpose.”

That phrase, " initially ex parte," suggests that Walker would definitely review the document openly, when he said no such thing (and only required declassification of government briefs going forward). 

That said, there is a very significant difference. This filing defends the state secrets invocation of the past, arguing that the invocation of state secrets in this case has already been ruled to be proper.

The Court of Appeals has previously determined that plaintiffs’ case cannot proceed without critical information that the state secrets privilege was properly asserted to protect—including whether or not plaintiffs were subject to alleged surveillance and, in particular, the classified sealed document at issue in this case.

 And then it accuses Judge Walker of changing his stance regarding the use of the document.

The Court initially reviewed the allegations in the amended complaint to determine whether the case may proceed to Section 1806(f) proceedings. See Dkt. 57 at 2-8. The Court then considered and rejected the Government’s contention that the public evidence cited in the amended complaint was insufficient to establish plaintiffs’ standing to proceed under Section 1806(f) as “aggrieved persons” subject to the alleged surveillance. See id. at 9. In making this determination, the Court decided an issue held open in its July 2 decision: what the standard would be for determining whether the case could proceed under Section 1806(f), see id. at 10-12 (discussing standard applicable under 18 U.S.C. § 3504), and then decided for the first time that it was sufficient for plaintiffs merely to establish a prima facie case of alleged surveillance, see id. at 13.

The balance of the argument, then, focuses on whether Walker made the correct interpretation that 1806(f) trumped state secrets.

I will need to read closer, but I suspect the resolution of this will depend on how far state secrets extends. Does it prevent a judge from assessing evidence ex parte, which is all Walker has ordered (contrary to the misrepresentations of the government)?

Just as interesting, though, is the shift in this filing away from one of privilege, per se, and toward the legal issues themselves. Sure, Obama is supporting Bush’s crappy stance in al-Haramain. But this filing spends little time defending Bush’s invocation of state secrets, instead relying on the 9th Circuit’s prior ruling that Bush’s invocation of state secrets was valid. 

Remember that Office of Public Responsibility investigation that Congress requested, Bush squelched (by refusing the investigators clearance to do the investigation), but that, under Mukasey got reinstated?

Brad DeLong has word of what has happened to it:

[T]he OPR… came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney Genera Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is… for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity…

There’s a lot to be said about this. But I’ll just start with the suggestion that–given that these "straws in the wind" have come to Berkeley Professor Brad DeLong–I can’t help but wonder whether Berkeley Professor John Yoo’s acceptance of a visiting position at Liberty University West Chapman University reflected some concern that Berkeley might see such "very harsh conclusions" to be the excuse they were looking for to get rid of the torture apologist.

Let’s hope this leak of Mukasey and Filip’s attempt to squelch this indicates that they have failed in doing so.

Remember how Bob Luskin told Murray Waas that Rove had gotten all cooperative?

Well, it will surprise none of you that that’s a load of horse puckey. In a letter to Luskin, John Conyers reveals that Rove is stalling on the February 23 deposition he agreed to in two ways: by insisting on bracketing off the Don Siegelman testimony, and by begging for (yet) another delay.

Though staff, I understand that you have offered to have your client testify voluntarily, but only on the Siegelman matter, and that in any event you have requested a further delay in the deposition. I cannot agree to either of these requests for a number of reasons.

With regard to the request to unilaterally limit Mr. Rove’s testimony to the Siegelman matter, as we have previously discussed, I do not believe it is acceptable for the Committee to allow witnesses to unilaterally determine what they can and cannot testify concerning, again absent assertion of a valid privilege. Moreover, the proposed distinction between the Siegelman matter and the U.S. Attorney investigation generally does not appear to be a tenable or viable distinction. They are part and parcel of the same serious concerns about politicization of the U.S. Attorney corps and the Justice Department under the Bush Administration.

[snip]

Finally, conducting a voluntary deposition under these circumstances could simply serve to further delay matters beyond the nearly two years I have been waiting, since the Committee could not then be in a position to utilize contempt or other enforcement mechanisms in response to any improper refusal to answer questions.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

You get the feeling Conyers is itching to find out whether or not Holder’s DOJ will enforce contempt of Congress?

Thwarted in his dreams to be Secretary of State–or some cabinet position, any cabinet position–John Kerry is settling in and making some changes at the Senate Foreign Relations Committee.

Kerry has hired Douglas Frantz, the former Los Angeles Times managing editor, to lead the committee’s investigative wing. The committee won’t specify what Frantz, who recently coauthored a book on Pakistani nuclear proliferator A.Q. Khan, plans to investigate. But sources note that he’s currently in Vienna, the seat of the International Atomic Energy Agency (IAEA). Sources tell The Cable that the pro-Israel lobby group the American Israel Public Affairs Committee (AIPAC) has encouraged Kerry and other members to probe Iran’s alleged sanctions busting, and how the country might bypass international sanctions to supply its nuclear program.

"For sure folks are strongly supportive of congressional and U.S. efforts to go after trans-shipment issues, often through the UAE, but in other places as well, that the Iranians have been using to bring in dual use items and other things not allowed under the sanctions," a source following the Iran issue said on condition of anonymity. With the recent U.S.-UAE nuclear power deal, "there is increased expectation on the Hill that the UAE will do a better job of cracking down on their country being used by Iran to push their nuclear programs forward and step up their effort to help ensure the economic sanctions aren’t being violated under their noses."

In addition to Frantz’ book on AQ Khan, Frantz wrote A Full Service Bank on an intimately related subject: the BCCI scandal (along with funding terrorism and CIA covert ops, BCCI served as the finance vehicle for AQ Khan’s nuke program). At the same time Frantz was working on that book, a guy named John Kerry was investigating BCCI in the Senate. I’ve always believed that the BCCI investigation–particularly Kerry’s decision not to press Democratic fixer Clark Clifford on his involvement with the bank–was the beginning of John Kerry’s evolution away from the courageous stance he took opposing the Vietnam War and towards the more accommodating, cautious stance that might allow one to someday run for President. For some support in that view, here’s Doug Frantz (with James Ring Adams) writing about his new boss’ decision, in 1988, to go easy on Clifford even though his bank, First American, was really not revealing its role in BCCI.

The Senator did not challenge Clifford. Nor did he ask about Amjad Awan’s claim that First American was owned by BCCI. Here was a man who deserved the benefit of the doubt. Instead, he assured the lawyer that he was happy that the bank was cooperating.

Why did John Kerry not confront Clark Clifford? After all, it was Kerry who was insisting on keeping the investigation of BCCI going. One explanation lies in Kerry’s own character. He tends to operate in bursts, pushing relentlessly on a subject and then seeming to lose interest in it. Also, Kerry was learning the Washington game and beginning to think of himself as possible presidential timber down the road. That meant that certain people were not attacked, at least not until all the evidence was in.

Here we are, with Kerry having tested his "presidential timber" and found it lacking, teaming up with the journalist who once suggested Kerry put aside his bulldog tendancies for political reasons twenty years ago. I find that rather curious.

I don’t know whether Kerry’s intent is to have Frantz investigate–just–Iran as Laura’s sources would love to suggest, or whether he’s going to invest the sordid mess that involves Israel itself in really dangerous proliferation of weapons. (Laura also notes that Kerry has hired Heidi Crebo-Rediker to lead a focus on international finance and foreign relations which, as Kerry knows form his earlier work, will quickly implicate both close allies and enemies of the United States.)

But I do wonder whether this suggests a post-Presidential Kerry will return to the more courageous stance of his youth.

Darn. We’ll have one less Republican in Obama’s cabinet, at least until Obama nominates Mitt Romney or Newt Gingrich to the post. I’m heartbroken.

But, really, does anyone actually believe this claptrap?

However, it has become apparent during this process that this will not work for me as I have found that on issues such as the stimulus package and the Census there are irresolvable conflicts for me. Prior to accepting this post, we had discussed these and other potential differences, but unfortunately we did not adequately focus on these concerns. We are functioning from a different set of views on many critical items of policy.

Shorter Gregg: "I just completely stopped listening after the moment Obama said, ‘interested in a cabinet spot?’ and missed all his discussion of retaining the census in Democratic hands." 

Yeah, I don’t find that too plausible either.

I wonder whether Gregg simply got to the point in the vetting process where he realized that he didn’t want his life to be investigated in detail by his colleagues and the press? I mean, it was just hours after Gregg was nominated that it became clear that Gregg’s Legislative Director from 2002 to 2004, Kevin Koonce, had been trading sports and music tickets and booze for legislative favors. As the latest details on the Abramoff make clear, Abramoff and his cronies were asking for $3.5 million earmarks and the defeat of a defense appropriations bill that would have hurt Abramoff’s Native American gaming clients. Koonce’s language, "[Gregg’s office] had the proposed amendment ‘flagged,’" "I got something for you too," "Let me know if I can return the favor," and Abramoff’s language (describing a request from a potential Abramoff client), "Koonce practically lives in our various suites. We are shady," suggest Abramoff’s $10,000 investment in sports tickets did not go to waste. Koonce was delivering on Abramoff’s requests. 

Which sort of means–whether or not Gregg is a subject or a target of the investigation at the moment–his office was trading legislative favors for gifts. And those trades, whether they were made with or without Gregg’s knowledge, certainly don’t say much for Gregg’s ability to shepherd the nation’s commercial interests.

Sure, Gregg tells a nice story about how his lifetime dream was to run a census. But I suspect he’s just hoping to get out of the Senate in 2010 with his honor and his clear criminal record intact.

I’ve been covering the misplaced priorities of Crazy Pete Hoekstra–who doesn’t want federal Intelligence Community employees to have a way of alerting Congress to fraud and wrong-doing without exposing classified information and/or losing their jobs, but who is happy to Twitter sensitive information about his and Minority Leader Boehner’s travels in Baghdad.

It seems that Susan Collins has the same misplaced priorities. She single-handedly axed the House-backed provision to include whistleblower protection in the stimulus package–and with it, prevented a key means of making sure taxpayer funds were spent wisely.

But, according to a person following the bill closely, Collins used today’s conference committee to drastically water down the measure, citing national security concerns as the reason for her opposition. In the end, the protections were so weakened that House negotiators balked, and the result was that the entire amendment was removed.

According to the person following the bill, Collins was the "central roadblock" to passing the protections.

To make matter worse, Collins is the ranking Republican on the Senate Homeland Security and Government Affairs commitee, which, as an oversight committee, might be expected to see its role as protecting whistleblowers. She also sits on the Senate appropriations committee, giving her a strong position from which to wield influence during today’s negotiations.

Though Senate leader Harry Reid supported the protections, said the source, he wasn’t willing to strong-arm Collins on the issue, given her central role in negotiations over the stimulus bill as a whole. [my emphasis]

I guess that about sums up the state of Republican approaches to both Homeland Security and Appropriations that they would work hard to deprive taxpayers of the protection from fraud and wrong-doing they need.  

Normally, I leave the off-season Senate race tracking to the Senate Guru. But he points to a wacky poll on Arlen "Scottish Haggis" Specter that I thought worth sharing.

Pennsylvania voters approve 56 – 30 percent of the job Sen. Arlen Specter is doing, with Democratic approval at 62 – 26 percent, higher than the Republican support of 55 – 33 percent and 49 – 35 percent backing from independent voters.

But by a narrow 43 – 40 percent margin, voters say Sen. Specter does not deserve to be reelected. Republicans split 42 – 42 percent, as do Democrats 41 – 42 percent, while independent voters say no 45 – 36 percent.

"Pennsylvania voters are sharply divided over whether Sen. Arlen Specter should be reelected next year, with Republicans almost as negative as Democrats, probably because the GOP Senator is one of only three from the party supporting President Barack Obama’s Stimulus Package," Richards said.

"But Specter always has been politically controversial and has needed votes from both parties to stay in office."

So Pennsylvanians like their "offal" Senator (I just know I’m going to catch heat from my PA relatives for that), but they don’t necessarily want him re-elected. Specifically, Democrats approve of Specter, as do Republicans (but much less so).

Most interesting, though, this archetypal representative of the mushy middle really doesn’t excite Independents–precisely the group that such mushy middle-dom is supposed to entice. 

What would David Broder say?

Immediately below, Marcy described Judge Vaughn Walker’s new homework assignment to the parties in the consolidated litigation in the Northern District of California (effectively all cases except al-Haramain and a few others to which "section 802 of the FISA Amendments Act of 2008" are not germane). If you have not read Marcy’s post, and wish to proceed into the legal weeds of this one, I heartily suggest you go back there first.

Okay, as I suggested in comments in Marcy’s post, Judge Walker is looking at the Attorney General option to certify a matter for dismissal pursuant to section 802 of the FISA Amendments Act, and as to said provision:

It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.

Mary went to the same point but, as usual, with a lot more flesh on the bone in her comment:

… the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.

So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion.

Precisely. So, let’s look at what Walker is legally up to here. It is my contention that he has pretty much determined that he is not down with the government’s program in the least, is going to take the bold move of declaring it unconstitutional and, from all appearances, do so on multiple grounds. The one at issue here is the unfettered and infinite nature and scope of the AG certification process under section 802.

First off Judge Walker posits this:

The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414, 425 (1944):

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.

But you should have some further context to understand Walker’s aim. Here is what the court actually found in in that case; from Yakus, 321 US at 426:

The standards prescribed by the present Act, with the aid of the "statement of considerations" required to be made by the Administrator, are sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards. Compare Hirabayashi v. United States, supra, 320 U. S. 104. Hence, we are unable to find in them an unauthorized delegation of legislative power.

In Yakus v. United States, the Court was evaluating the authority given to an executive branch "Price Administrator", whose job it was to determine prices of commodities during World War II, and the court found there were sufficient criteria set forth by Congress for the courts to decide, and and the people to understand the basis of the decisions rationally, i.e. how the price determinations were arrived at. In short, the court in Yakus found the situation was not so vague as to be completely arbitrary and capricious.

Appears to me that Walker thinks the situation in respect to the AG certifications in the NDCA consolidated cases do not possess such requisite identifiable criteria for determining the basis thereof as Yakus would require, and is making darn sure that he has given the government a full chance to make their case. Before he holds that they haven’t.

Secondly, in his order, Walker asks that the parties, and, again, he is clearly directing this at the government, brief as follows:

The parties are further directed, in doing so, to give consideration to two principles of statutory construction: (1) a court should treat the “plain meaning of legislation [as] conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters,’” United States v Ron Pair Enterprises, Inc, 489 US 235, 242 (1989); and (2) “[t]he canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v Martinez, 543 US 371, 385 (2005).

Of these two demands, the key looks to be the second based on Clark v. Martinez. In this regard, here is the full operative section from Clark that Vaughn Walker is basing his inquiry upon (note Clark is a Scalia opinion and is therefore written in his typical oblique style that turns simple concepts into the nearly undecipherable):

If we were, as the Government seems to believe, free to interpret statutes as becoming inoperative when they approach constitutional limits, we would be able to spare ourselves the necessity of ever finding a statute unconstitutional as applied. And the doctrine that statutes should be construed to contain substantive dispositions that do not raise constitutional difficulty would be a thing of the past; no need for such caution, since whatever the substantive dispositions are they become inoperative when constitutional limits are approached. That is not the legal world we live in. The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.

Here, Walker is anticipating an argument he reasons the government will make to try to squirm out of their vagueness hole and, again, after giving them a full opportunity to brief it, he appears ready to bite them. The Clark argument they will try is to say, in simple terms, "Gee judge, if you can’t tell what the parameters of the statute are, you can just assume they are whatever could be appropriate right up to the Constitutional extreme". I don’t think Vaughn Walker thinks that is going to fly in this case. Neither do I.

Ladies and gentlemen, Vaughn Walker is on a mission. As most of you know, I have thought that was the case for quite some time now. But jeebus, and seriously, I have rarely, if ever, seen a judge more on top of a subject, loaded for bear and out in front of a case as we see here. It is awesome and impressive. He is anticipating what the parties are going to argue and how appellate courts are going to rule in the next set of appeals, all from a pre-trial posture. He is treating this case with the respect, depth and care that it deserves because nothing short of our Constitution and Fourth Amendment thereto is at issue. There are precious few bright lights in the dark field of justice these days; irrespective of how it all plays out in the end, so far this sure looks like one of them.

Judge Vaughn Walker, who is preparing to rule on whether telecom retroactive immunity is constitutional, has given the parties a new homework assignment (h/t MD). He has asked for a brief addressing this question.

Nonetheless, section 802 appears to contain “literally no guidance for the exercise of discretion” by the Attorney General. Whitman v American Trucking Assns, 531 US 457, 474 (2001). It appears to leave the Attorney General free take no action at all or to take action to invoke section 802’s protection on behalf of one or more “persons” based on any consideration of his choosing; no charge or directive, timetable and/or criteria for the Attorney General’s exercise of discretion are apparent. The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414,
425 (1944):

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.

Now, I invite the lawyers to correct me, but I think Walker, probably having taken a peek at that document he’ll one day review in the al-Haramain case which proves the Bush Administration was violaing FISA, is likely looking for clarification about what Congress meant when they said the Attorney General had to certify something as legal.

If Congress said the AG had to certify something as legal, he seems to be asking, is the AG doing the will of Congress is he says something is legal when it’s clearly not? Or, were they really asking the AG to make an assessment of the legality of the activity?

That’s my guess, anyway. 

But what I find particularly interesting is this part of the order:

In their supplemental briefs, the parties may paraphrase and/or refer to arguments made in previously-filed briefs, but should not repeat them verbatim.

I think that’s judge politesse for,

Say, Mr. AG, I’d really appreciate seeing some of your original lawyering work on this one, please. I’ve seen what the dead-enders want to give me, and I’m not really interested in seeing their stale arguments rehashed again. Unless, of course, you’re really willing to adopt their completely indefensible position as your own?

Ah. I’m probably reading too much into this. But it does seem clear that Walker wants something that is guaranteed to be the handiwork of the Obama Administration. 

I’m guessing he’ll cite the William Jefferson and Tom Feeney precedent and ignore this and then Dannehy will hit a wall. But for the moment, at least, Pete’s been served (h/t scribe):

A federal grand jury has subpoenaed records of former Republican Senator Pete Domenici of New Mexico.

[snip]

The grand jury subpoena for some of Domenici’s records has been confirmed by two private attorneys who spoke on condition of anonymity because they were not representing the former senator.

Domenici’s attorney, K. Lee Blalack, has declined to comment.

So long as Domenici can shield stuff through speech and debate, he can probably protect Bush without too much personal downside.