Illegal Wiretapping … Still; Bill Clinton’s Email Accessed

Lichtblau and Risen are back with what feels like a quarterly update reporting that Americans are still being illegally surveilled.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

Both the former analyst’s account and the rising concern among some members of Congress about the N.S.A.’s recent operation are raising fresh questions about the spy agency.

[snip]

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

These reports feel so familiar. What is new, though, is that people like Rush Holt (who was quoted extensively in the article) are getting pissed enough that they’re giving more details about the abuses in the program. Read more

Russ Feingold Throws Vaughn Walker a Softball

With this letter:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President (“NSA Legal Authorities White Paper”), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid. 

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides. 

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the “White Paper” and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication. 

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A Funny Thing Happened On The Way To al-Haramain Justice

As you will recall, there was an important hearing in the Northern District of California District Court (NDCA), Judge Vaughn Walker presiding, on June 3. There were significant briefs from both the plaintiffs al-Haramain and the defendant government filed a few days before the hearing. As MadDog pointed out, Judge Walker has subsequently issued a briefing order on June 5 making more specific the lay of the land.

The reports from the hearing were that it was one for the ages and there were calls for a transcript. I now have one in my hot little hands. I am sorry, but I cannot post the entire transcript; they are the proprietary product of the individual court reporters, and the preparation of transcripts is a source of income to them. Court reporters have a difficult job and they are entitled to this protection, and I will respect it.

The foregoing having been said, this hearing was a rare thing; an amazing blend of seriousness and comedy presided over by a Judge both firmly in control of difficult proceedings and wielding a fine and dry sense of humor. In the passages that follow, the following will be the pertinent abbreviations: JW is Judge Vaughn Walker, JE is al-Haramain attorney Jon Eisenberg and TC is DOJ/Government’s attorney Anthony Coppolino.

[JW] Well, Counsel, I’ve read your papers and now have a much better sense of that old expression about ships passing in the night.

And this really is true, but it is not just the parties’ ships that are crossing in the night, the government is sailing blindly and willfully by the court too. Coppolino could literally have just held up a paddle every time he was to speak, like those golf course marshals, with the words "Same Old Shit Judge!" printed on it. He really is a broken record and is willing to do anything, including insulting the court’s intelligence, to get a ruling he can appeal immediately. Here is a prime example:

[TC] I think, you know, you talk about two ships passing in the night, and I certainly think that’s an apt description, I think we now have ships passing, again, in different directions, because the issue — the issue of standing and whether there is a genuine issue of fact and whether we could dispute their allegations of standing, of course, would turn on information we have, Read more

Vaughn Walker’s Chess Game: Sue the Telecoms Part One

In two earlier posts I laid out where Vaughn Walker seems to be going with the warrantless wiretapping cases. In this post, I’m going to consider his suggestion–made in his ruling rejecting a challenge to retroactive immunity–that the plaintiffs could sue the telecoms for activities after January 17, 2007 (note, Walker said January 7, but it’s almost certain he meant January 17).

Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of
plaintiffs’ opposition to motion of the United States” to dismiss. Doc #627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA warrantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’” Doc #627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master
consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-morestringent pleading standards applicable in federal courts (see, e g, Ashcroft v Iqbal, ___ US ___, 129 S Ct 1937 (2009)), to allege causes of action not affected by the Attorney General’s successful invocation of section 802’s immunity.

EFF had submitted the recent Lichtblau and Risen article in support of their argument that they could sue for past abuses, and in response, Walker said, "Well, why don’t you sue for more recent abuses?" 

Is Walker serious? Does he really think there is means to do that?

The Recent History of the Wiretap Program and the Immunities

Let’s start by looking at the recent history of the mass wiretap program along with the immunities offered by Congress in 2007 and 2008.

January 10, 2007: FISA Court issues first order covering the program

January 17, 2007: Alberto Gonzales informs Congress FISA Court will now approve wiretap program

May 2007: FISA Court judge rejects Administration’s order for a basket warrant

May 15, 2007, 10 AM: Jim Comey testifies before Senate Judiciary Committee, describes Hospital confrontation

May 15, 2007, 10 AM: US Intelligence meets to discuss collecting more intelligence in case of kidnapped soldiers in Iraq

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Cheney’s and Gonzales’ CYA Libraries

On March 12 or 13, 2004, after Jim Comey threatened to quit because George Bush had reauthorized warrantless wiretapping over Comey’s objections, Bush ordered Alberto Gonzales to write up notes of his March 10, 2004 meeting with members of Congress; the congressional meeting would serve as Gonzales’ excuse for having visited John Ashcroft in the ICU ward. Gonzales would go on to carry those notes around with him in a briefcase, thereby violating rules on treating classified information. After moving to DOJ in 2005, Gonzales did not feel safe leaving the documents in one of the DOJ safes accessible by–among others–Jim Comey (there was also one in the AG office that woudl presumably not be accessible to Comey).

On June 1, 2005, the day after Alberto Gonzales claims to have passed on Jim Comey’s warning to the NSC Principals Committee of the fallout that would come from their continuing to approve torture, the CIA produced a document that purported to tell the benefits of the torture program. That is one of two documents Cheney requested from the National Archives earlier this year to prove that torture worked. It is a document Cheney kept in his "immediate office files" in a file called "detainees."

And if that doesn’t make you suspect Cheney and Gonzales got worried enough to start building up their own little CYA libraries to protect themselves from the torture (and wiretap) fallout, consider some of the other document included in Alberto Gonzales’ briefcase of highly classified documents.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program;

[snip]

The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, [my emphasis]

Now, as I understand it, only the 2005 memos–and not the 2002 or 2003 memos authorizing torture–bear the markings of the compartment of that program (the middle redacted phrase, as I understand it, would be the compartment). Read more

Vaughn Walker’s Chess Game: The New Rules

The other day, I did a post that summarized where we are on the interlocking warrantless wiretap claims. I summarized the state of affairs as follows:

  • Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
  • The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
  • The hearing in Jewel scheduled for July 15
  • The state cases dismissed pretty definitively
  • The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewell
  • Any discovery action in the Seda case
  • The legally required IG report on warrantless wiretapping due (ha!) next month

Since the beginning of the year, Walker has been proceeding very deliberately (read, slowly) with the cases under his control (indeed, the September 1 hearing date for al-Haramain may suggest he continues to do so), during which time a number of issues in these cases have solidified. In some cases, this holds true just for his courtroom; in others, it holds true at the 9th Circuit. Most haven’t been tested in SCOTUS yet. This deliberation sucks, insofar as the criminal statute of limitations on the primary illegal wiretapping that occurred in March 2004 has expired. But I think Walker allowed everything to mature such that–on Thursday–he felt he could move three of them forward at once. In this post, I’ll explain what I think has matured in these cases, and look at how it affects the Jewel suit against the government. In a follow-up post I’m going to look at what it might mean for post-January 7, 2007 surveillance.

Here’s my NAL understanding of what has matured in that time (as always, feel free to kick my ass on my misunderstanding of the law or any other aspect of this).

  • The Court of Appeals made it clear that the government must assert state secrets with respect to individual pieces of evidence, not information. This means the government cannot–as it has tried to–just declare the entire question of whether US person data was vacuumed up a state secret.
  • The Court of Appeals refused the government’s interlocutory appeal of Walker’s ruling that al-Haramain had sufficiently proved it had aggrieved status such that he could review the evidence to see if the charity had been wiretapped (this was also an unsuccessful attempt to appeal his ruling that FISA trumped state secrets that they had flubbed the previous summer). This means the 9th is probably going to give Walker leeway to rule on other aggrieved party statuses, if he does so.
  • Vaughn Walker got four new declarations presumably correcting an "inaccuracy" in how Bush’s DOJ had described the surveillance done on al-Haramain and probably giving him a much better idea how the surveillance worked.
  • Vaughn Walker just affirmed the government’s insistence that the legislative record holds significant sway in these proceedings, but also that under Navy v. Egan Congress can legislate restrictions on the handling of classified information. This carves out a space where a judge can assess liability for illegal surveillance, even in the face of the government’s attempt to claim this is all secret (though Walker’s affirmation of this argument hasn’t been tested yet). 
  • The Supreme Court ruled in Iqbal that a plaintiff must submit specific facts for a claim to overcome qualified immunity of a government employee in his official duties.

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Vaughn Walker’s Chess Game: The Cases

I know we joke (and usually mock) the notion that Obama is playing 11 dimensional chess with all the active court cases of late. But I believe Vaughn Walker, the judge overseeing all the warrantless wiretapping cases, really is playing chess. All of the relevant cases have been consolidated under him (though there are two related cases, which I’ll get to), and in the process, he has gotten pretty damn fed up with the government’s attempt to game the system, and partly as a result (and mostly because it is right in terms of law), he appears to be consciously working through all the suits together with an eye toward some kind of justice in the case.

In this post, I’m going to lay out the many factors at play here–the four cases (broadly defined) before Walker, two other related cases, and the IG report. In two follow-up posts, I’ll explain where I think this will go from here. 

Al-Haramain:  The Islamic charity once had a wiretap log showing allegedly illegal wiretaps from 2004, yet the government has promised to appeal any order that it make that–or other materials–available to litigate the suit. In response, Judge Walker has directed plaintiffs to submit a motion for summary judgment, with a hearing scheduled September 1; the parties are working on a briefing schedule now.

Retroactive Immunity Challenge: Electronic Frontier Foundation and other groups challenged the constitutionality of Congress’ grant of retroactive immunity to the telecoms under FISA Amendments Act. Yesterday, Walker dismissed the challenge, finding that Congress had explicitly directed the Attorney General that he could certify the telecoms to receive immunity. Significantly, Walker invoked the legislative record of FAA to support both his ruling that the law did not violate the Constitution and his finding that "plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities." In addition, Walker recalled that Navy v. Egan allows Congress to limit the executive branch’s control of national security issues, including classification–but that it had specifically allowed the executive to keep the AG certifications secret here. The plaintiffs have said they will appeal, and given Walker’s comment that, "the lack of a charge to the Attorney General [specifically directing the Attorney General to undertake review and to submit to the court the specified certifications] remains a problem," they are sure to focus on their argument that Congress abdicated its own rule-making authority to the Attorney General.  In addition, Walker has dismissed this suit without prejudice, suggesting that if plaintiffs can amend their complaint to cover telecom wiretapping not covered by the immunity granted by FAA, they are welcome to do so; significantly, Walker reminds plaintiffs that immunity only covers wiretapping that happened between September 11, 2001 and January 7, 2007.

Read more

The al-Haramain Order From Walker

I am still waiting for a report from the scene, but the hearing in Judge Walker’s court in al-Haramain on the Order to Show Cause is over and here is Walker’s order:

PROCEEDINGS:
Order to Show Cause Hearing.

RESULTS:
The Court heard argument from counsel.
Plaintiff shall file a motion for summary judgment.
Hearing is set for 9/1/09 at 10:00 am.

Now, as MadDog noted, the AP is already reporting on the afternoon’s events, including the al-Haramain order. Here is the key language from the AP report:

Also Wednesday, Walker deferred a decision on how to deal with the government’s continued refusal to turn over an apparent log of telephone calls that the U.S.-based arm of an Islamic charity says shows it was the subject of warrantless wiretaps.

The Obama administration insists in court filings that release of the document will create "intolerable risks" to national security, the same stance taken by the Bush administration.
Walker ordered Department of Justice lawyers and attorneys for the charity to return Sept. 1 for further arguments.

Gee, nothing here, Walker just continued the hearing until September 1st. Ta ta now, move along.

Guess they didn’t see this line in the order (in spite of the fact it was the only other one substantively there):

Plaintiff shall file a motion for summary judgment.

Uh, hey guys, that line means something. It means that Walker has decided, after submission by the plaintiffs last Friday (see here and here), to go ahead down this path, and is encouraging the plaintiffs to lay out the desired factual predicate and exact law basis for how they want summary judgment entered. Now, this does not mean a final decision on awarding summary judgment is issued by the court, far from it, but it is damn clear that is exactly what is being contemplated.

As we have already discussed in relation to the earlier order on the states suits and telco claims, there is so much more here than meets the eye. And certainly than seems to have not met the AP’s eye. Crikey, and they’re going to sue us, for using their content?? You gotta be kidding me.

Vaughn Walker Dismisses Challenge to Retroactive Immunity

Wired reports that Vaughn Walker has dismissed EFF’s challenge to retroactive immunity. (h/t scribe) Plus, Wired will probably be reporting on how Anthony Coppolino recovered from his long week of dancing in the al-Haramain suit. So by the end of the day, we should have a better idea of whether we’ll ever hold the government responsible for violating FISA.

I’ll be reading Walker’s order as I drink my pre-flight beer (I’m going home!! We’ll see whether MI has survived a bruising week.) I’ll update as I’ve got more to say.

Update: We’re discussing in threads that Walker seems to set this decision against the Jewel case which sues Bush personally. I’ve been arguing that we might get a positive ruling from Walker in one or the other case, but not both, based on the legislative record. This is an example of what I mean:

The SSCI Report included among the committee’s recommendations for legislation amending FISA that “narrowly circumscribed civil immunity should be afforded to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.”

Jello Jay also maintained that this left open suits against the government. Which means I think Walker sees them (and the legislative record) as the way to move forward on one.

Update: Walker also dismissed the state suits. Here’s the order. And the conclusion.

The United States’ motion for summary judgment in United States v Clayton, C 07-1242; United States v Reishus, C 07-1323; United States v Farber, C 07-1324; United States v Palermino, et al, C 07-1326; United States v Volz, et al, C 07-1396 is GRANTED. The state proceedings at issue in each of those cases are prohibited by section 803 (50 USC § 1885b) and are hereby enjoined pursuant to this court’s authority under that statute. Clayton et al v AT&T Communications of the Southwest, Inc, et al, C 07-1187 is DISMISSED with prejudice.

The United States is directed to submit a proposed form of judgment in accordance with this order.

Update: To add to what JimWhite said in comments, this ruling is pretty much a warning shot across George W. Bush’s bow.

The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc Read more

Nadler and State Secrets

Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler’s bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I’m looking for video–but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping. 

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he’s not proposing lawsuits as the sole means for accountability. But he’s thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad’s suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it’s not just state secrets that protects the wrong-doers. It’s also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it’s not going to land Dick Cheney in jail.

And, ultimately, it’s a concession of Congress’ own failures. When Chris Anders, ACLU’s legislative counsel, argued that indefinite detention would not pass Congress, Nadler pointed to the FISA Read more

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