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.

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Decision Day On al-Haramain (updated)

graphic by politicalbaseIt is decision day for the gunslingers at the al-Haramain corral. If you recall when we last left this little vignette, exactly one week ago today, Judge Vaughn Walker had just issued a fairly terse ruling giving certain instructions to the parties. Both parties were given one week, until today, May 29th, to produce written responses to the court.

The plaintiff al-Haramain was addressed as follows:

Plaintiffs shall, no later than May 29, 2009, submit a memorandum addressing whether it would now be appropriate and/or feasible for plaintiffs to file a motion for summary judgment on their claim under 50 USC § 1810. Plaintiffs should address the merits of filing such a motion under two scenarios: (1) with a protective order in place allowing plaintiffs’ counsel access to the Sealed Document; and (2) with no such protective order and no such access.

Basically very good news for the plaintiff, they are apparently going to proceed with their case, but were being given the option on how to proceed. Make no mistake, proceeding forward with the case is what plaintiffs are in this for; it is not about money for them.

The obstreperous and defiant defendant, the United States government by and through President Barack Obama was, however, not treated so kindly by the court. Judge Walker, clearly fed up with their belligerence and recalcitrance, drew the blade of a guillotine over the government’s head (and rightly so I might add).

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders:

(1) defendants should not be prohibited, under FRCP 37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

(2) the court should not deem liability under 50 USC § 1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

Defendants shall submit written response to this order no later than May 29, 2009.

By good fortune, today is May 29, and the documents are rolling in. Here is the filing from al-Haramain hot off the press and before it even hits PACER. As Marcy put it a week ago when Walker’s order was filed, “how do you feel about summary judgment 1) with also getting the document, Read more

Dick Cheney’s Torture Kabuki

I wanted to pull three threads together in this post, which suggest how Cheney instituted torture in this country:

  • Alberto Gonzales may have been approving torture even while Condi Rice and others went through the show of getting an OLC opinion to authorize it;
  • CIA claimed to be briefing Congress when it wasn’t;
  • The Bush Administration then claimed Congress had bought off on torture to persuade those objecting to torture within the administration.

There are also certain parallels with the way Cheney implemented his illegal wiretap program.

Alberto Gonzales’ approvals

As Ari Shapiro reported last week, Alberto Gonzales was personally approving the techniques Mitchell’s torturers would use on a daily basis.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

We know there’s cable traffic from the field back to CIA HQ every day. And we know there’s a May 28, 2002, 4-page cable from HQ back to the Field that roughly corresponds to when Ali Soufan has said the torturers brought out the small box in which they eventually confined Abu Zubaydah. This may mean there’s a seven-week gap between the time the harshest techniques were first okayed, and the time Condi purportedly gave the torture program its first okay on July 17, 2002. As I noted the other day, this raises the possibility that the OLC approval process was all just show, basically endorsing torture that had gone on for some time already.

Is it possible that when Bellinger and Condi asked for an OLC opinion, the CIA’s torturers were already hard at work, and it’s only because Bellinger asked for an opinion that they even bothered? If Gonzales was relaying daily approvals for torture directly to the torturers in the field, then why would it appear that Condi was the one who "approved" the program in mid-July? Why not Gonzales?

It’s a possibility that one of Shapiro’s sources is contemplating.

"I can’t believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

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Breaking! Judge Walker Gets Ready to Penalize the Government in al-Haramain

Judge Walker appears to have lost his patience with the government’s obstinance in al-Haramain.

He just gave the government one week to explain why he shouldn’t just rule in al-Haramain’s favor and impose penalties.

As the court understands the situation:

1. The United States has completed suitability determinations for two of plaintiffs’ attorneys and found them suitable for TS/SCI clearances, but government officials in one or more defendant agencies, including the NSA Director (Doc #626/89 at 16), are refusing to cooperate with the court’s orders because, they assert, plaintiffs’ attorneys do not “need to know” the information that the court has determined they do need to know.

2. Defendants have refused to agree to any terms of the protective order proposed by plaintiffs and have refused to propose one of their own. Doc #626/89 at 35.

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders:

(1) defendants should not be prohibited, under FRCP 37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

(2) the court should not deem liability under 50 USC § 1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

Defendants shall submit written response to this order no later than May 29, 2009.

All good questions, Judge Walker. 

I rather suspect the Administration would prefer just to pay damages than to go forward with this (particularly with Judge Walker in such a peeved mood). But if Walker rules in al-Haramain’s favor, what does that do for the retroactive immunity case?

The Data Mining Secrets and al-Haramain

There’s a footnote in the latest al-Haramain filing that deserves further attention. It suggests the government continues to try to shield information on its larger wiretapping program by treating different aspects of it as separate programs entirely.

The Filing Refers to "TSP" Surveillance and Surveillance "Pursuant to Other Authorities"

Amidst the passage complaining (rightly, to a point) that al-Haramain’s proposed protection order would give it access to "all information" the government held on the charity, it footnotes a discussion of the submissions included as part of its state secrets assertion.

Similarly, paragraph 25 of plaintiffs’ proposed protective order, which addresses counsel’s “need to know” classified information, is also fundamentally flawed. This proposed provision states: “A plaintiff’s counsel is presumed to have a ‘need to know’ all the information in the government’s possession concerning the plaintiffs whom that counsel represents.” See Pls. Proposed Order ¶ 25. Not only is this among the central issues in dispute in this case, as noted above, but, under this provision, plaintiffs would be presumed to have a “need to know” any and all classified information “concerning” plaintiffs. This could include all information concerning the Al-Haramain Islamic Foundation of Oregon—a designated global terrorist organization—as well as the information at issue in the Government’s state secrets privilege assertion filed in this case, to the extent those submissions are deemed to “concern” the plaintiffs.6/ Plaintiffs would thus transform the inadvertent disclosure of a single document—which itself was subsequently excluded in this case by the Ninth Circuit—into a presumption entitling them to all information that may exist concerning them. Plaintiffs’ response below does not recede from this sweeping demand for access. [my emphasis]

The footnote reads,

6. The Government’s state secrets privilege assertion applies to a range of information beyond the sealed document, including whether or not the plaintiffs were subject to alleged surveillance not only on the Terrorist Surveillance Program challenged in this case, but pursuant to any other authority not at issue here, as well as information concerning the TSP, and the al Qaeda threat. See Public Declaration of John D. Negroponte. [my emphasis]

The Government Doesn’t Want to Hand Over the New Filings

These two passages suggest several things. First, from a very practical perspective, they show the government is panicking over having to release the classified submissions the government itself submitted in this case, much more than they’re panicking over having to (re)release the wiretap log that, after all, al-Haramain has already seen. I’ll remind you that these submissions are probably the same submissions that the Obama administration had to correct. Read more

The Latest al-Haramain Filing

First, let me say that the breathless reporting on the latest al-Haramain filing is totally overblown. As I said when Judge Walker ordered the al-Haramain and government  to attempt to come up with a protective order under which the case can proceed, it was always unlikely that they would be able to do so.

The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work.

Guess what? This latest is, as expected, a continuation of the same squabble that the parties have been engaged in since January 5. Yes, the government continues to insist Walker’s January 5 ruling–that FISA trumps state secrets–is wrong. But the al-Haramain lawyers are also pulling some fast ones with their submission. Which suggests that Walker is going to have to finally rule one way or another on what access al-Haramain should have, the government will try to appeal, and we’ll be waiting on the 9th Circuit again.

Walker’s Order and al-Haramain’s Response

Back on April 17, Judge Walker pointed to a protective order being used in the Gitmo habeas petition cases, suggesting that the parties here adopt a similar protective order. So al-Haramain, appearing to follow Walker’s order to a T, did just that, submitted a protective order based on the Gitmo one.

But, as the government fairly pointed out, al-Haramain made some key changes in the order. First, whereas the Gitmo order allowed the government to refuse to disclose information and, ultimately, to release a detainee rather than disclose that information, the al-Haramain proposed order gave the government no such way to refuse to disclose information.

Plaintiffs’ proposed order also deletes another sentence from paragraph 49(b) of the Guantanamo order which states that: “Nothing herein prohibits the government from submitting classified information to the Court in camera or ex parte in these proceedings or entitles petitioners or petitioners’ counsel access to such submissions or information.” See id. Elimination of this provision would further foreclose the Government’s authority to control the use and disclosure of classified information in this case.

(Al-Haramain, incidentally, simply replaces this passage with a phrase not limiting government "remedial action" if information does get leaked, which if they were willing to go to jail to liberate information on the warrantless wiretap program would pretty much expose the program in its entirety.) Read more

What Did BushCo Hide By Not Revealing Surveillance Activities?

Via Threat Level, I see the EPIC has written a letter to Pat Leahy complaining about the Bush Administration’s failure to comply with requirements that it release details on the number of "pen register" and "trap and trace" orders.

As a reminder, "pen registers" are when the government collects the metadata from your telecom contacts–the phone numbers you call and the length of calls, as well as whom you email–to figure out who you’re talking to. And "trap and trace" orders are when the government figures out who is calling (or emailing) you. In addition, the EPIC letter explains that law enforcement has recently been using "hybrid" orders to pinpoint cell phone (and therefore, your) location.

Law enforcement agents use "hybrid" orders for cellular location information. Hybrid orders seek to determine a suspect’s past and future location based on non-content data transmitted by the suspect’s cellular phone. The government has engaged in this type of surveillance by invoking a combination of authorities under the Pen Register Act and the Stored Communications Act.

For pen registers and trap and trace, the government doesn’t have to get a warrant (the hybrid stuff is still up in the air). Instead, since 1986, DOJ has been required to report how much of this stuff is going on.

But, as EPIC explains, DOJ didn’t release the report publicly for the years 1999 through 2003, and only gave incomplete information to Congress at all in November 2004. And DOJ  appears not to have released reports at all since 2004.

You probably see where I’m going with this. 

We know, of course, that Bush’s illegal wiretap program involved some kind of data mining aspect.  It appears that they were doing pattern analysis based on things like length and recipient of call–precisely the kind of thing you get from pen registers–to determine whom to further wiretap.

Yet we have only incomplete information from the first three years of Bush’s illegal wiretap program. EPIC explains that DOJ did not include the suspected offenses that law enforcement officers were trying to investigatre, nor did it list which officers were doing the investigations.

And then we have nothing–no data–for the years after Jim Comey and Jack Goldsmith supposedly put the illegal wiretap program back on legal footing (and remember–the data mining aspect of the program was reportedly one of the things that Comey et al went crazy over). 

Read more

Russ Feingold: Repeated Assertion of State Secrets “Reminiscent of Bush Administration”

picture-100.thumbnail.pngRuss Feingold just had a conference call to announce his release of a report card grading Obama’s first 100 days in office. (The report card gives Obama a "some good, some bad, some too early to tell" grade.)

While he applauded the efforts the Obama Administration has made to end torture and to restore a presumption of release under FOIA, there were two areas where Feingold had particular complaints: State Secrets and the disclosure of information to the intelligence committee.

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program.

His second major complaint, while less specific (for obvious reasons), was more revealing. He said there was not yet enough disclosure to members and staffers on the intelligence committees. While he said the Obama Administration is clearly more open than the Bush Administration, he suggested the intelligence community was still "stonewalling and roadblocking" information to the committees. He did note, however, that he can’t assess whether the Obama Administration is using the Gang of Eight process properly as he’s not part of the Gang of Eight. He did argue, though, that there are few things that shouldn’t be briefed to the entire intelligence committees. It seems that’s not currently happening.

In a related point, he said the Administration has an opportunity–one it hasn’t taken yet–to fix overclassification problems. He suggested the Administration could–but hadn’t–return to policies practice on classification under the Clinton Administration.

A Milwaukee reporter–who seemed to reflect a divided local response on the release of the torture memos–asked about what he thought of the release. Feingold said the Administration got "real [high?] marks for having the courage to release these memos." He specified, however, that the Administration still should release the 2006 and 2007 memos on torture that we haven’t yet seen.

It sounds like those memos may be just as appalling as what we’ve seen so far.

He also made clear that the memos authorizing the warrantless wiretap program have not been released and remain in effect. I guess we shouldn’t be surprised, then, that the NSA continues to follow the same domestic wiretapping practices it did under the Bush Administration.

Is the Harman Story an Attempt to Silence Her about Torture?

Laura Rozen has been reporting an angle of the Jane Harman story that has been largely neglected elsewhere–the possibility that this story is coming out now as a way to hit Harman, the fiercest critic of the torture program.

A former senior U.S. intelligence officer said he heard during work on the Hill in the 2004 time period of whispers among members of the intelligence committees and their staffs that Harman was allegedly caught up in some Israel-related case that would likely prevent her from getting the chairmanship of the committee she sought. He also said that it was clear that Goss and Harman (and their staffs) fiercely disliked each other.

But he wondered if the timing of this story was about changing the subject, from what Bush-era officials had authorized, to what the Congress was complicit in. "Is this about taking pressure off the revelations of waterboarding and the memos?" he speculated. "And the fact," he added, "that no real intelligence came out of this whole effort?" referring to the enhanced interrogation/torture regime revealed in the memos, which he said produced no actionable intelligence.

(For his part, Stein said in an online chat Monday afternoon that he had had the story for a while, and only decided to move on it now.)

But the former intelligence official familiar with the matter noted that Goss has given only one on-the-record interview on these CIA controversies since leaving the CIA director job. In the December 2007 interview, he said that Congressional leaders, including Representatives Pelosi and Goss himself, Sen. Bob Graham (D-FL) and Sen. Richard Shelby (R-AL), and later Rep. Harman, Sen. Jay Rockefeller (D-WV) and Sen. Pat Roberts (R-KS), had been briefed on CIA waterboarding back in 2002 and 2003. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Washington Post. "And the reaction in the room was not just approval, but encouragement."

Who was the lone lawmaker the article identified as objecting to the program?

Jane Harman.

The story is plausible not just because Porter Goss–both a former Congressman and former DCI–might fit as one of the sources for all the intelligence reporters covering this story. But also because we know Porter Goss was doing a masterful job working the press to distract from his role in the torture tape destruction (that’s what his on-the-record interview was all about). Read more

Revisiting Jane Harman’s Over-Reaction to Partisan Pressure on FISA

In October 2007, when Jane Harman was cozying up to Crazy Pete Hoekstra to forge a bipartisan compromise on FISA, I wrote this:

Buried in this article on Democrats compromising with Republicans, I noticed this paragraph:

And as Democratic leaders push their own legislation to rein in the wiretapping program, Rep. Jane Harman (D-Calif.) has been quietly exploring avenues of compromise with Rep. Peter Hoekstra (Mich.), the ranking Republican on the House intelligence committee. Centrist Democrats hope those talks can dovetail with the Senate intelligence committee’s own bipartisan measure on surveillance of suspected terrorists.

Jane Harman, of course, is a former member of the HPSCI. Only, with the changeover in Congress, she got bounced from HPSCI and relegated to chairing the Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment over at Homeland Security, which means she is not in a formal position of leadership on this issue. Harman made news last month when she called the Republicans on their bullshit attempts to use a sketchy terrorist threat as an excuse to push FISA amendment through. But she also appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically of Bush’s illegal wiretap program.

But now, apparently, she’s taking it upon herself to negotiate her own version of a FISA Amendment, presumably one designed to bypass HJC (which wants nothing to do with telecom immunity) and HPSCI, which under Reyes is proving to be increasingly skeptical of Bush’s BS.

How nice, that the one Democrat who gave approval to this illegal program is the one now negotiating immunity for them. Not a conflict of interest there, not at all.

 Strangely, she took time out of her bipartisan schmoozing to yell at two DFH bloggers for being critical.

Jane Harman sent a response to this post via a staffer.

What rubbish!  For those like me who insist that the President’s domestic surveillance program must comply fully with the Constitution and the 4th Amendment, the only way for Congress to get there is with a veto-proof majority.  That’s why I’m working with Republicans.  Got a better idea?

I opposed the FISA-gutting Protect America Act last August and supported the much-improved H.R. 3773, which did not include retroactive immunity for telecommunications companies.  Read more

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