The Government Dodges and Weaves on al-Haramain
While I agree with bmaz that the government response in al-Haramain repeats a lot of tired arguments, I’m utterly fascinated by the dodging and weaving they do to try to persuade Vaughn Walker not to impose sanctions on them. I’m fairly sure that Anthony Coppolino (the government lawyer in this) ended up canceling his Memorial Day plans last weekend and has been working on this dance ever since.
Before I explain why, understand the challenge. Normally, when the government invokes state secrets, the evidence in question is just removed from the case, as if it didn’t exist. Walker has ruled that FISA trumps state secrets, and so he can review the evidence to see whether al-Haramain was illegally surveilled; he has also said that to proceed in the case, al-Haramain must have a means–via access to (at a minimum) Walker’s rulings and possibly also the wiretap log and the government’s declarations–to litigate the suit. But the government maintains the al-Haramain lawyers absolutely cannot see those documents. So Walker, last week, proposed just skipping the tedious litigation step, and just declaring that the government could not oppose al-Haramain’s claim it had been illegally wiretapped, and proceeding to the penalty phase (mind you, as bmaz has pointed out, that’d involve other discovery claims, but let’s put those aside for the moment). This filing is the government’s attempt to continue to claim state secrets, even in a crime that Congress has specifically prohibited.
The government starts by focusing attention exclusively on whether it should be sanctioned for refusing al-Haramain’s lawyers access to the documents in this case, and away from whether it should be sanctioned for illegally wiretapping al-Haramain. And it pretends that it has not ignored Walker’s order that they at least propose some way to litigate this.
The Government regrets that the Court has now suggested that actions it has taken in this litigation may warrant sanctions. We respectfully but firmly disagree. As set forth more fully below, the imposition of discovery sanctions would be unjustified because the Government has not violated any Court order or otherwise acted in a manner warranting sanctions. The Government has merely declined voluntarily to agree to a protective order that would, in the Government’s view, require disclosures that would irretrievably compromise important national security interests. That conduct cannot be a basis for sanctions.