October 1, 2020 / by 


Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling:

The evidence shows that an inferred surveillance period lasting from February 19, 2004 to September 9, 2004 is reasonable. Based on statements by the Office of Intelligence and Analysis, at least four of al-Buthi’s telephone calls were intercepted as early as February 2003. Doc #657-4/99-4 at 32-38. Between this time and September 9, 2004, when the OFAC declared Al-Haramain a SDGT organization, governmental interest in Al-Haramain’s activities appears to have increased. Various officials involved acknowledged using surveillance and other classified information in this investigation. See Doc #721/115 at 37-41.

Accordingly, the most reasonable inference is that defendants had already begun electronic surveillance of Al-Haramain before its assets were blocked on February 19, 2004 and continued the surveillance at least through September 9, 2004. Plaintiffs Belew and Ghafoor were associated and in frequent contact with Al- Haramain and its officials during this time and were similarly subjected to electronic surveillance. See Doc ##657-6/99-6; 657- 23 7/99-7. Although plaintiffs have not had access to classified information that could prove the precise details of defendants’ surveillance, plaintiffs have nevertheless put forth sufficient evidence to raise a strong inference that the period of surveillance lasted at least 204 days.

Walker, and likely correctly, notes (see: p. 14-15) that al-Haramain itself is not eligible for damages or attorney fees due to its status as a designated terrorist organization. The court rejected Eisenberg’s relatively creative attempt to get the damages awarded under thecy pres” doctrine.

As to Plaintiffs’ request for injunctive relief, the court effectively holds they already have all they can get under the circumstances in light of the “surveillance program” being discontinued (could sure be argued that this is a pretty shaky assumption) among other circumstances:

The court first turns to plaintiffs’ request for a declaration that the warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA. Defendants argue that FISA does not authorize the entry of any declaratory relief. Doc #727/119. Defendants further argue that a declaratory judgment cannot issue if the “program or activity” no longer exists. Doc 15 #727/119.

It is unnecessary to decide whether and under what circumstances FISA authorizes the entry of a declaratory judgment because the equitable relief sought by plaintiffs is neither necessary nor appropriate. This court already determined in its March 31 order that plaintiffs established a prima facie case of unlawful electronic surveillance in violation of FISA. Doc #721/115 at 3. In the present order, the court awards compensatory damages and attorney fees based on defendants’ actions. A declaration that defendants’ actions were illegal would not provide plaintiffs with any additional relief or remedy.

Furthermore, because the TSP under which plaintiffs were monitored in violation of FISA ended in January 2007, Doc #668/103 at 18, there is no reason to believe that plaintiffs will be subjected to the same injury in the future. Under 28 USC § 2201, a declaratory judgment is available only when there is “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.” Golden v Zwickler, 394 US 103, 5 108 (1969). “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” City of Los Angeles v Lyons, 461 US 95, 103 (1983). Accordingly, plaintiffs’ request that the court declare defendants’ actions unlawful is DENIED.

Plaintiffs’ second request for equitable relief seeks an order prohibiting the United States government from using any information obtained during the surveillance at issue and ordering the destruction of such information. Again, to enter declaratory relief, there must be an “actual controversy” before the court. 28 USC § 2201. No such controversy exists here.

To sum up, a strong damages ruling, nice and full award of attorney fees (well earned by plaintiffs’ counsel I might add), a predictable refusal to grant monetary award to the underlying organization (which is defunct anyway) and a somewhat disappointing refusal to grant punitive damages. The court’s logic on the punitives issue is fairly underwhelming to me – basically that it is unfair to assess them against taxpayers – in that I fail to see why the “send a message” nature of punitive damages is any less necessary where it is governmental ill at issue. Taxpayers need the damn message too judge. Walker clearly, however, does not agree.

This will conclude the festivities in NDCA. As you may recall, the government prematurely tried to get the matter to the 9th Circuit on an interlocutory basis in early 2009, but the attempt was held to not be ripe and was denied completely. Well, there are no more issues left at the trial court level, so the Obama Administration can now finally move its craven determination to shield mass criminal conduct through the secrecy and cover up of state secrets privilege to the 9th Circuit. After the soul crushingly bad en banc decision by the 9th in Mohamed v. Jeppesen, however, there is no way to know how the case will be viewed there. Normally, I would expect a favorable ear from the 9th, but the craven government has so brain washed the judiciary on the need for secret law to stave off the terror boogeyman, that you never know. And Obama has literally been as bad, if not far worse than, as the Bush Administration in this regard.

So, we shall see how this sorts out in the 9th Circuit now and, presumably, the Supreme Court after that. While it has been very hard to get a definitive read on our newest justice, Elena Kagan, on these types of issues, it is almost certain she would recuse herself as much of al-Haramain and related cases were percolating through during her term as Solicitor General and she likely had enough participation in the discussions that she exercises her right to recuse. Now, whether that would leave a 4-4 split among the remaining eight justices, which would leave any opinion by the 9th Circuit intact, may well be the key question in the future.

For now, though, the trial court, through chief Judge Vaughn Walker hath spoken. And his finding of mass illegality and unconstitutionality in the the President’s Surveillance Program during the Bush Administration, in the only case that has managed to survive the egregious onslaught of state secrets coverup, by both Bush and Obama, should be kept firmly in mind. Especially when you read things like Monitoring America by Dana Priest and Bill Arkin of the Washington Post.

Obama Formalizes His Indefinite Detention Black Hole

Hot on the heels of the big DADT victory in Congress, which pretty much got passed in spite of Obama instead of because of him, comes this giant lump of coal for the Christmas stockings all those who believe in human rights, due process, the Constitution, and moral and legal obligations under international treaties and norms. From the Washington Post:

The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.

The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.

This is certainly not shocking, as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission. This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it. That is what happens when a country becomes that which it once stood against.

Pro Publica fills in some of the details:

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

Unfortunately, it does not appear as if this ballyhooed “review” amounts to anthing meaningful to the detainee. Although the detainee would have access to an attorney, it would obviously not be unfettered access, completely on the government’s self serving terms, there would be only limited access to evidence, and, most critically, the “review” would only weigh the necessity of the detention, not its lawfulness. In short, it is a joke.

So, the next time you hear Mr. Obama, or some spokesperson for his Administrations decrying the horrible Congress for placing a provision in legislation prohibiting the transfer of detainees to the US for civilian trial, keep in mind how quickly Mr. Obama rose up to take advantage of it – before the measure was even signed – and also keep in mind how Obama stood mute when he could have threatened a veto of such an inappropriate invasion of Executive Branch power by the Legislative Branch. Keep in mind that this is likely exactly what the Obama Administration wants to cover feckless and cowardly indecision and so they do not have to make the difficult political choice of actually protecting the Constitution and due process of law.

The Misplaced US Determination To Indict Assange

I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme.

But the determination to prosecute Julian Assange is not just a destructive and myopic scheme to effect prior restraint in a digital world, it is laughable from the point of legal foundation of criminal prosecution of Assange. That, however, seems to be no deterrent to the US and the Obama/Holder DOJ. ABC News reported last Friday an US indictment against Assange may be imminent and his lawyers were expecting it, and CBS News confirms with more detail today:

“We have heard from the Swedish authorities there has been a secretly empaneled grand jury in Alexandria…just over the river from Washington DC, next to the Pentagon,” Stephens said. “They are currently investigating this, and indeed the Swedes we understand have said that if he comes to Sweden, they will defer their interest in him to the Americans. Now that shows some level of collusion and embarrassment, so it does seem to me what we have here is nothing more than holding charges…so ultimately they can get their mitts on him.”

Last week, U.S. Attorney General Eric Holder said, “We have a very serious criminal investigation that’s underway, and we’re looking at all of the things that we can do to try to stem the flow of this information.”

Exactly what laws would the DOJ prosecute Assange under? There are two options that appear to have gained traction, the first being the Espionage Act, which is codified in US statutory criminal law in Title 18, Chapter 37, i.e. 18 USC 792 et seq. There are really only two provisions here that could likely be applied to Assange/Wiki, 18 USC 793 “Gathering, transmitting or losing defense information” and 18 USC 798 “Disclosure of classified information”. A review of both statutes yields, at first blush, language that could encompass the conduct of Assange and WikiLeaks.

The infirmity of both provisions becomes apparent upon closer inspection. 18 USC contains several stated active prohibitions, however “publication” is certainly not one of them. There is solid historical authority that such omission of “publication” as a prohibited act was intentional (one would assume in light of the First Amendment). As Jennifer Elsea states in a wonderful discussion in a recent official Congressional Research Service Report:

Moreover, the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction.

Exactly. And the last bit on “extraterritorial jurisdiction” is not to be overlooked in the discussion either (although it mostly has been to date). Neither Assange nor WikiLeaks committed any overt act on US soil, within its territorial bulge, nor in or on a US controlled facility overseas. Assange is neither an US citizen or permissive resident, nor does his conduct seem to fall within the parameters of the within the Special Maritime and Territorial Jurisdiction of the United States. In short, Assange is neither a US subject of any kind, nor does he appear to have physically committed any overt act within the jurisdiction, even extended, of the United States.

To conclude the Espionage Act discussion, I harken back to New York Times v. United States, where Mr. Justice William O. Douglas wrote,

It is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.

The various concurring majority opinions in New York Times v. United States are a treasure trove of law directly against the attempt by the Obama DOJ to prosecute Julian Assange under the Espionage Act, and they are a roadmap for Assange’s defense if they do. If the DOJ undertakes such charges, it is a crystal clear signal their own written prosecutorial standards, as discussed above, are worthless and not worth the paper they are printed on.

The second charging modality against Assange that has been identified by the government relates to receiving and/or retaining stolen property. Receiving and trafficking in stolen property is by definition almost always a state law based offense; however, there is a Federal statute that has occasionally been used in situations having at least some analogy to Assange. The statute is 18 USC 641 and it was used to prosecute Samuel Morison and Jonathan Randal. The difference, of course, is that both Morison and Randal were government employees working in intel (Morison) and for the DEA (Randal).

In short, both gentlemen – Morison and Randal – were Bradley Manning, not Julian Assange; and in both cases the press was not pursued. Because the press is simply in a different posture in light of the First Amendment and the plethora of crystal clear caselaw. Secondly, 18 USC 641 facially contemplates a “thing” or “property” and the argument could certainly be made that no such tangible object was ever removed from the government’s possession, nor were they deprived of the use or possession thereof.

Frankly, while this is an argument I would certainly throw out were I defending Assange, I would not want to hang my hat on it. It is not so hard to see a court finding a digital copy of the cable files to be within the ambit of the statute; especially after the warning Harold Koh gave clearly setting up this application of section 641. The problem is, the DOJ still runs headfirst into the brick wall that is the First Amendment separation of press and publication under the seminal New York Times v. United States case. Again, it is impossible to read the majority opinions in New York Times and find the headroom for the US DOJ to prosecute Julian Assange short of engaging in the production of contorted and scurrilous horse manure.

Oh, and one other thing, about the thought that if Assange is prosecuted, the New York Times could be too; no less an authority than former Bush Attorney General Michael Mukasey suggests, while such may place the NYT squarely within the prosecutorial ambit, that the DOJ simply engage in straight up selective prosecution and go only after Assange. Nice. Remember when all those high minded bloggers were saying how principled Mukasey was and what a refreshing choice he would be to replace Alberto Gonzales? I do; that didn’t work out so well.

Eric Holder and the DOJ cannot possibly find jurisdiction to charge American contractors who torture and murder people in the course and scope of their employment by the US Government abroad, and cannot charge CIA supervisors and OLC lawyers who patently admit to destruction of evidence and conspiracy to commit war crimes; however, the same DOJ is now suddenly able to be so legally creative as to find a path to charging a person under the Espionage Act who is not a US citizen, owed the US no duty under citizenship and treason provisions, committed no act within the jurisdiction of the US and who is a member within the general definition of “press” and who only published purported whistleblower leaks given to him. It is amazing how the DOJ is willing to go out on that “limb” when it wants to, but can never so travel when the interests of justice really demand it to.

In conclusion, and to bring this post full circle, there is no established viable basis for prosecuting Julian Assange, in fact all precedent is to the contrary. To do so flies directly in the face of the once vaunted DOJ guidelines for criminal prosecution. For these reasons, there is no reason to consider the attempts by the US government to prosecute Assange as anything but a craven facial assault on the First Amendment and freedom of the press. After seeing the disdain, contempt and avarice the Obama Administration has displayed toward the Fourth Amendment and Fifth Amendment, I guess no one should be shocked.

ACLU Appeals 9th Circuit Jeppesen Decision to SCOTUS

When the original three member panel opinion in Mohamed v. Jeppesen Dataplan, Inc. was issued by the 9th Circuit in late April of 2009, it was a breath of fresh air. Judge Michael Hawkins authored a thoughtful, well reasoned and heartening opinion placing appropriate curbs on the ability of the Executive Branch to silence wronged plaintiffs via the interjection of state secrets. Civil liberties scholars stood up and cheered. Unfortunately, it did not last and thanks to a very unfortunate panel assignment for the en banc review in the 9th, Hawkins was reversed and an erratic and contorted decision put in its stead by Judge Raymond Fisher handing the President and Executive Branch carte blanche to assert state secrets at will, effectively even to hide government illegality and misconduct. Civil liberties adherents jeered.

Now the ACLU, who represents the plaintiffs in Mohamed v. Jeppesen, has appealed from the 9th Circuit en banc decision by petitioning the Supreme Court for certiorari. The ACLU’s full petition is here. The ACLU press release reads, in pertinent part:

The American Civil Liberties Union late last night asked the U.S. Supreme Court to review a lower court decision dismissing its lawsuit against a Boeing subsidiary, Jeppesen DataPlan, Inc., for the company’s role in the Bush administration’s extraordinary rendition program. The ACLU and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. Although the federal government was not initially named in the lawsuit, it intervened for the sole purpose of arguing that the case should be dismissed based on the “state secrets” privilege.

“To date, not a single victim of the Bush administration’s torture program has had his day in a U.S. court,” said Ben Wizner, Litigation Director of the ACLU National Security Project. “The government has misused the ‘state secrets’ privilege to deny justice to torture victims and to shield their torturers from liability. The Supreme Court should reaffirm our nation’s historic commitment to human rights and the rule of law by allowing this case to go forward.”

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government could not invoke the state secrets privilege over the entire lawsuit, but, instead, could only invoke the privilege with respect to specific evidence. The Obama administration appealed that ruling, and in December the case was reargued in front of a panel of 11 Ninth Circuit judges. The appellate court upheld the dismissal of the case 6-5.

“The government’s continued assertion of ‘state secrets’ to avoid judicial scrutiny of torture threatens the fundamental principle of separation of powers,” said Steven Watt, staff attorney with the ACLU Human Rights Program. “No court has yet fulfilled its critical constitutional function of ruling on the legality of the Bush administration’s torture policies. The Supreme Court should take this case and affirm that victims of torture are entitled to a remedy.”

“The Supreme Court has not reviewed the government’s use of the ‘state secrets’ privilege in more than half a century. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability,” said Steven R. Shapiro, Legal Director of the ACLU. “As the executive branch asserts the ‘state secrets’ privilege more and more often, for more and more reasons, it is critical that the Court examine its use. Under a system predicated on respect for the rule of law, the government has no privilege to violate fundamental human rights and evade judicial review.”

The interesting question here is what does the ACLU think they can gain by approaching the Supremes? Elena Kagan will almost certainly recuse herself, so that leaves eight justices in play, the hard conservative bloc of Roberts, Alito, Thomas and Scalia, the liberal bloc of Ginsburg, Breyer and Sotomayor and Tony Kennedy. Only the three person liberal bloc would have much true interest in voting with the ACLU here; the best they can legitimately hope to do is pull Kennedy in, but that still leaves a 4-4 split affirming the horrid 9th Circuit en banc opinion by Fisher. The bottom line is, there is no path to a favorable merits opinion.

That said, why would the ACLU file the petition for certiorari? My guess is it is to keep the issue alive in the public conscience and to see if they can at least make some progress legally. While a 4-4 Supreme split would indeed leave the 9th en banc opinion intact, it would absolutely be a very strong message to the Executive Branch that there are real questions with the way they are using state secrets, and it would be a clear signal the issue would be quite ripe for another case to challenge. And the Obama Administration seems intent on asserting state secrets at every opportunity, so another case will come along.

Not to mention that the justices, especially Kennedy, are undoubtedly aware of the actions of the Brits, not only in their courts, but also in direct government compensation of Binyam Mohamed and another plaintiff for the very same conduct complained of in this case. It is impossible to deny what occurred now, only possible to cravenly hide from it; of course that is the option the Obama/Holder DOJ will pick every time. That, coupled with the contentious and very unusual close 6-5 nature of the 9th Circuit split just may give some credence to the instant ACLU effort in the Supreme Court.

There is one other concern that may be in play here. Generally a party has to exhaust every possible remedy and level of access in a nation’s court system before petitioning international tribunals for redress. The ACLU did exactly that in their Khaled El-Masri case, petitioning the Inter-American Commission on Human Rights (IACHR). So, I would hazard a guess insuring that all avenues are so exhausted in Mohamed/Jeppesen for this purpose as well.

It is a long war when it comes to protecting civil liberties and constitutional due process; clearly the ACLU is playing for the long run. Good for them.

Durham Torture Tape Case Dies, US Duplicity in Geneva & The Press Snoozes

From the best available information as to the original destruction date of the infamous “Torture Tapes” having been on November 8, 2005, the statute of limitations for charging any general crime by employees and/or agents of the US Government for said destruction will expire at midnight Monday November 8, 2010 as the general statute of limitation is five years. By operation of law, the statute would have run yesterday were it not a Sunday. So, by the time you are reading this, it is over. Absent something extraordinary, and I mean really extraordinary, a criminal statute of limitation is effectively a bar to subject matter jurisdiction and that is that. Ding dong, the John Durham torture tape investigation is thus dead.

Last week, I wrote a letter to the DOJ and saw to it that it was delivered to the main contacts, Dean Boyd and Tracy Schmaler, as well as John Durham’s office. None of them responded. Finally, late Monday afternoon I called Durham’s office, and they acknowledged having received the letter. Although extremely cordial, there was simply no meaningful information or discussion to be had on the subject. “We have no comment” was about the size of it. I asked about the remote possibility of the existence of a sealed indictment; there was “no comment” on that either, and there is absolutely no reason in the world to think anything exists in this regard.

Oh, there was one thing; when I asked why there had been no formal response to my letter, I was told perhaps it was a “little edgy”. Apparently actually phrasing an inquiry with legal specificity and facts makes it too “edgy” for the United States Department Of Justice. Who knew? Ironically, at the same time this discussion was transpiring today, the very same Obama DOJ was in US Federal Court, in front of Judge John Bates of the DC District, arguing for their unfettered right to extrajudicially execute an American citizen, and do so in secret without explanation. But my letter asking about the dying Durham investigation was edgy. The DOJ’s priorities, morals and duties seem to be a bit off kilter when it comes to their assignment of the term “edgy”.

Apparently TPM got the same brick wall. The open and shut criminal case against Jose Rodriquez is gone. The clear potential for cases against the four Bush/Cheney White House attorneys involved in the torture tapes destruction, as well as the two CIA junior attorneys, gone. Same for any case against Porter Goss. Gone, and the DOJ has no explanation and nothing to say. At this point, the excuse for not commenting is not that there is an ongoing investigation into destruction of tapes, the criminal subject matter of that investigation is gone, outside of the statute of limitations.

But the irony of the DOJ’s position on the Durham investigation does not end with a misplaced sense of what is “edgy”, an even rarer instance of irony played out last Friday in Geneva with the US presentation at the UN Universal Periodic Review. On Friday, November 5th, the US defense to its human rights and torture record was given by Harold Koh, the chief Legal Advisor to the State Department. What did Koh rely on as evidence of US accountability for its now proven torture regime? Why the DOJ John Durham Investigation of course. From AFP:

“I think that the Obama administration defines waterboarding as torture as a matter of law under the convention against torture and as part of our legal obligation… it’s not a policy choice,” Koh told journalists after being asked about the report.

Asked whether the United States was still considering investigation or federal prosecution of those who might have ordered such a practice in the past, Koh said the matter was being examined by Special Prosecutor John Durham in Connecticut.

“Those investigations are ongoing. So the question is not whether they would consider it, they’re going on right now,” he explained.

Yep, the DOJ’s John Durham investigation. The very same intrepid arm of justice and accountability that couldn’t bring itself to indict up the Jose Rodriquez ham sandwich served up to them on a silver platter on January 2, 2008, nearly three years ago. The same DOJ/John Durham investigation so derelict in duty that it just let the statute of limitations on his original special prosecutor jurisdiction, the criminal destruction of the torture tapes, bleed out on the table in front of him. That certainly ought to be reassuring for the UN UPR, the UN Special Rapporteur, and the other world defenders of human rights.

So, just how inattentive and asleep at the wheel does the government think the American media and citizenry are, to brazenly engage in the simultaneous duplicity of relying on the Durham investigation in Geneva for the UN UPR On Human Rights at the same moment it was using the Durham investigation to bleed out the statute of limitation on the primary jurisdiction of the investigation at home? Well, they think the media and people are completely asleep and, sadly, they are quite correct.

Look at how the New York Times covered the initiation and early stages of the DOJ John Durham criminal investigation into the destruction of the torture tapes. Here is CBS News, the Wall Street Journal, the Washington Post, Jonathan Turley, the list is endless. At several times since the initiation of the Durham torture tape investigation, there has been wide and excited coverage of leaks that Durham was “wrapping up” or on other aspects leaking out; here is the New York Times, Washington Post, more New York Times, Politico; again, the list is potentially endless. the torture tape investigation of the DOJ and John Durham has had constant coverage by any number of endless media sources until it came time for the expiration of the statute of limitations that effectively terminates the entire original jurisdiction of John Durham. Somehow, the end of the road merited no coverage whatsoever by the ever present American media. None. Nada. Zip.

So, where did the American media that has been covering the John Durham torture tape destruction investigation since its inception suddenly go; what hole did they crawl into when the actual statute of limitation, on the base acts for the whole investigation, was expiring? That is a question worth hearing an answer to. It is not that they didn’t know, because you can bet they saw the letter last week. Why would the media stand by as the government whistles past the graveyard point of the primary jurisdiction of the John Durham Special Prosecutor jurisdiction?

(Graphic by the one and only Darkblack)

Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.



If there is any worthwhile or meaningful response, I will advise.

Obama DOJ Moves 9th Circuit To Stay DADT Ban

Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than simply that. The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

And in the meantime, Obama should help the effort along, and set a positive example, by issuing an executive order under his crystal clear stop loss authority pursuant to 10 USC 12305 stopping all discharges from the United States Military under the pernicious DADT policy. The President has that power and should have the courage to use it.

Obama is doing none of the above and, instead, is paying cheap political lip service only by hiding and trying to frame everything in terms of Congressional repeal. When asked about the court rulings by Phillips in the LCR DADT case, by Tauro in the DOMA case, or by Walker in Perry, the response is always in terms of legislation repealing things in place. legislation affirmatively protecting something in the future, studies to see what is appropriate or some other mealy mouthed baloney.

On the other hand, not a lick of the above described baloney matters if the discrimination at issue is flat out unconstitutional. If it is unconstitutional, and DADT absolutely is, then studies are irrelevant. What generals and servicemembers wives think and respond to in answers to ginned up surveys is irrelevant. Legislation by Congress is irrelevant. Public opinion, for that matter, is irrelevant. None of that matters because it is a fundamental right for such citizens to be treated equally under the United States Constitution and not be discriminated against. End of story. Seriously, it either is or it is not.

However, the filing by the Obama DOJ speaks for itself as to where we stand today. (And here is a just posted article by Gerstein on the stay attempt in the 9th). As an attorney, I am inclined to agree with their position that the injunctive order by Judge Phillips is of questionable validity in its extension worldwide against the US military. As the government’s brief argues, the standing granted in the Log Cabin Republican case was limited and restricted; it is hard to see how it serves as a proper foundation for the extraordinarily broad injunction she issued.

That said, Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct and, as cited above, there is nothing to stop the government from voluntarily complying with the spirit of that finding or, indeed, President Obama from mandating evisceration of DADT pursuant to his stop loss authority under 10 USC 12305. What is needed is a profile in courage instead of another example of rank political triangulation.

Judge Phillips’ DADT Order Is Not The Victory Being Claimed

As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was (they probably regret that now I suppose).

But the complaint in this case was brought as to a group – LCR – that claimed locus in, and harm occurring within, the CACD. And, in fact, there was indeed much pretrial litigation of standing and scope and, before the case was allowed to proceed, the LCRs had to put up specific individuals claiming identifiable and quantifiable harm. Plaintiff LCRs eventually did that on the back of one originally identified and specified individual, to which a second specified and joined individual was later included for a grand total of two individuals the group “LCR” was allowed to proceed on as the nominal representative plaintiff.

There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.

Having every district court judge in the country with that kind of injunctive authority over military function is likely unacceptable to any administration, and will be for the Obama Administration. It has only grown to this absurd point through the fantastical overreaching of the LCRs and, now, Judge Phillips. They have gone a bridge too far.

And that is the problem here, by wildly overreaching, Judge Phillips has given the White House/Executive Branch legitimate and compelling grounds to appeal that are separate from the critical merits issue of the constitutionality and propriety of DADT, which is a discriminatory and loathsome policy and should be terminated immediately.

In this regard, a grave disservice has been done by Phillips to the cause of elimination of DADT. I think the DOJ has to appeal and seek stay, and will unfortunately do just that. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act, or not act, on the merits and expose themselves as either true to their word on elimination of DADT or craven impostors. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the duplicitous on DADT Obama White House something to hide behind when they deserve to be exposed.

Key Prosecution Witness Excluded Over Torture In New York Terror Trial

Last Friday, I reminded the clueless media, and thus mostly uninformed public, there was a critical terror trial going on right in their midst in New York City, and doing so quietly and competently as was claimed was impossible by howlers such as Liz and Dick Cheney, Guiliani, Lindsey Graham and the right wing noise machine. The case is US v. Ahmed Khalfan Ghailani, and as I explained, although jury selection was well under way, there was a brief delay imposed by the trial judge, SDNY Judge Lewis Kaplan, until today so he could contemplate a motion to exclude a critical prosecution witness argued by the defense on the grounds the putative testimony was the product of torture and coercion.

The decision by Judge Kaplan was just issued and, in somewhat of a shock, he has ordered the witness, Hussein Abebe, excluded. From Bloomberg News:

A judge barred the U.S. from calling as a witness a Tanzanian miner who admits supplying explosives to Ahmed Ghailani, an alleged al-Qaeda terrorist charged with the 1998 bombing of the U.S. embassies in Africa.

U.S. District Judge Lewis Kaplan, in New York, denied a request by federal prosecutors to allow Hussein Abebe to testify that he sold five crates of dynamite to Ghailani before the blast. Abebe, whom prosecutors called a “giant” witness in their case, would provide a first-hand account of Ghailani’s role in the attacks, the government said.

Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.

“The court has not reached this conclusion lightly,” Kaplan wrote. “It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.”

This is a critical ruling and, while it should not be this way, a refreshingly positive one for the health and sanctity of the Constitution and federal Article III courts. Hats off to Judge Kaplan, for while the legal basis seems quite clear on its face, the blowback pressure from the government and boogity boogity terrorism howlers described above (not to mention the Old Gluehorse McCain) will be intense. Here is the critical language from Kaplan’s order:

Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody. It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced.) In these circumstances, the Constitution does not permit Abebe to testify in this criminal trial unless the government has sustained its burden of proving that (l) the connection between Ghailani’s coerced statements and Abebe’s testimony is sufficiently remote or attenuated, or (2) there is another basis upon which that testimony properly may be received.

The Court has had the benefit of extensive evidentiary submissions, a three-day

hearing at which Abebe and representatives of the Federal Bureau of Investigation, the CIA, the Tanzanian National Police testified, legal briefs, and skilled argument. On the basis of that record – including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities – it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence. In a previous decision, it rejected the other bases advanced by the government for allowing Abebe to testify. United States v. Ghailani, _ F. Supp.2d _, 2010 WL 3430514 (S.D.N.Y. Aug. 17,2010). Accordingly, the motion to preclude Abebe’s testimony is granted.

The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

Three cheers for Judge Lewis Kaplan, who made the tough, but required, decision. You would expect that of any Federal judge but, alas, that is not always the case in a Federal judiciary increasingly controlled by right wing ideologues. There is one note of caution on the celebration, and that is the concluding language from Kaplan in his order:

Moreover, it is appropriate to emphasize that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner ofwar until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

This brief order will be supplemented by an opinion containing the Court’s findings of fact and conclusions of law. In view of the classified nature of much of the evidence and in accordance with the Classified Information Procedures Act, that opinion will be filed with the Court Security Officer. A redacted version will be filed publicly as soon as possible.

As always, there may be no relief for those caught in the terrorism clutches of the United States government even when they are acquitted or ordered released. But, that is for another day, for today Judge Lewis Kaplan’s order should be cheered by those who believe the principles embodied in the Constitution – the rule of law – are more important than one man or one case, whether it involves terrorism or not. The trial is now on hold until at least Oct. 12 to give the government time to decide whether to appeal the exclusion ruling by Kaplan.

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

But back to Judge Keith’s case. After invoking a striking image, the “uninvited ear” Judge Keith goes on to side with Judge Ferguson and make his own indelible contribution.

In this turbulent time of unrest, it is often difficult for the established and contented members of our society to tolerate, much less try to understand, the contemporary challenges to our existing form of government. If democracy as we know it, and as our forefathers established it, is to stand, then “attempts of domestic organizations to attack and subvert the existing structure of the Government” (see affidavit of Attorney General), cannot be, in and of themselves, a crime.

The DOJ Files Against Judge Keith

Rather than complying with Judge Keith’s order, the DOJ insisted it was right and would not turn over the information. It was not at a juncture where it could appeal, so it filed a mandamus action against Judge Keith, asking superior courts to order that the Judge turn over the surveillance logs and not disclose them to the defendants. A mandamus action exists when an officer or lower court is refusing to do something where it has a clear duty. Here, DOJ was claiming that the clear duty was to return the logs to DOJ and not disclose them (we’ll come back to this – but this is the state’s secret aspect of the Keith case).

Now, the Executive branch had used its prosecutorial power to make Judge Keith a defendant and it looked to the Sixth Circuit to rein in the District Court Judge. The Sixth Circuit, however, sided with Judge Keith.  The scene was set for a truly remarkable case to be heard by the Supreme Court.

DOJ Searches for a Good Argument While the Supreme Court Takes the Case.

Now that the DOJ was going before the Supreme Court, it had several difficulties – one of the foremost being just what argument it really wanted to sell hardest to the Court. It wanted to argue that of course the President could do “anything” when national security was involved, but it didn’t really want to argue forthrightly that the President was exempt from law. Except, it was willing to make that argument if it had to – but it didn’t want to have to. All of which made for a curious dance leading up to the filings and oral argument in the case.

The Supreme Court had two new members when the case went up, Justices Rehnquist and Powell. Justice Rehnquist (who had been working on the surveillance case briefs from the DOJ’s Office of Legal Counsel) recused. Justice Powell, though, was largely seen as being a “win” for the Government’s case, having written aggressively in favor of the Executive’s power in national security settings. And since the lower courts and Justice Powell had both seemed favorably inclined to find that there was power to wiretap foreign powers, DOJ tried to pull in foreign power aspects to the case as well.

As reported in March 6, 1972 Time article titled, ” The Law: Turmoil on Taps

The tap was perfectly legal, [DOJ] said, even though it had been installed without a judicial warrant, because warrants are not necessary in cases involving a threat to “national security.” This is true not only for the traditional danger from a foreign power, the Justice Department maintains, but also for the security threat posed by the current radical protest movement.

In his argument to the Supreme Court last week, U.S. Solicitor General Erwin Griswold (sic) insisted that radical protests within the U.S. are “interrelated” with security threats from abroad. The Government was merely gathering intelligence to protect the nation, he said, not deliberately seeking evidence for criminal prosecutions. If each case had to be submitted to a judge to get a warrant, Griswold added, “the Government would have to disclose sensitive and highly secret information.” Judges, he said, are not as qualified as the Attorney General to make the “subtle inferences” involved. Even though the Attorney General might abuse his power, that “is not a valid basis for denying [him] the authority.” emph added

The Time’s article reference to Griswold, above, is incorrect. The Solicitor General , a former Harvard law dean (but otherwise unlike an Elena Kagan) actually refused to argue the case although his name was on the briefs. Not having a Paul Clement available, Robert C. Mardian was asssigned to handle the arguments. So, while no one knew it at the time, both the Attorney General (Mitchell) who authorized the illegal taps and the deputy Solicitor General, Mardian, who argued the case to the court, would later become indicted in matters relating to the Watergate wiretaping, a case made possibly only by the appointment of an actual, independent prosecutor (something the Bush and Obama DOJs have shunned).

The Supreme Court Rules.

After Mardian’s oral argument, the DOJ was less enthused with their prospects for success and they had a right to be. The Justices were beginning to align in two camps, but neither camp gave DOJ the win. At least one Justice was inclined towards a very limited decision, one that would focus on the Omnibus Act and merely find that the Reynold’s type affidavit (we’ll get to that later) offered by the DOJ and Mitchell was insufficent under the Omnibus Act’s requirements – in other words, that a “national security” argument from the government could be trumped by … bad drafting. That Justice, though, was Justice White (who ended up issuing a  separate concurrence on this theory), not Justice Powell.  In the other camp, to the surprise of many, was newly appointed Justice Powell.

The same Powell who had argued for government powers of surveillance before coming to the court (and is thought of as the father of the think tank approach to corporate activism to shape legislation) was now being given the assignment of writing the opinion for the majority of the court, a court that agreed 8-0 that the DOJ could not order the District Court Judge to return evidence in the case, with only a split on how narrowly they would issue their opinion. The Powell opinion took Madrian’s argument that the Attorney General (much less night supervisors on an NSA shift) was better qualifed than the courts to determine if and when the Fourth Amendment should apply and stood it on its uninvited ear.

With respect to the Omnibus Act argument, Powell wrote:

At most, this is an implicit recognition that the President does have certain powers in the specified areas.

…Rather than stating that warrantless presidential uses of electronic surveillance “shall not be unlawful” and thus employing the standard language of exception, subsection (3) merely disclaims any intention to “limit the constitutional power of the President.”

…In view of these … carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act.

Now on to the DOJ’s Mitchell Doctrine argument. Powell restricts the decision to not include a case where there had been authorized surveillance leaving open, in part, what might be required to be turned over if the surveillance had been legal (ed. although cases such as Jencks and Brady presumably would still have application in such a case, especially since Jencks, too, involved DOJ arguments of “national security”) and also leaving open the issue of whether surveillance involving a foreign power  for foreign intelligence would have been legal. With those caveats, he went on to deal with the Mitchell Doctrine for surveillance of US “dissidents.”

History abundantly documents the tendency of Government – however benevolent and benign its motives – to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect “domestic security.” Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. … The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

Pointing out that the warrant clause of the Fourth Amendment is not “dead language” Powell dismisses the argument that the Executive branch is only required to be subjectively “reasonable” and recites a long history of cases finding that the Fourth Amendment is not intended to be entrusted to an Executive’s secret and subjective decision of reasonableness. Despite the pragmatic force lent to the government’s arguments by bombed out buildings and civil unrest, Powell found that the President’s role with respect to domestic security has to be exercised within the bounds of the Fourth Amendment.

Thus, we conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government’s domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.

As the surveillance of Plamondon’s conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, “the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.”

So now we have some of the picture that was partly completed with the Keith case. Uncertainty as to what is intended on the domestic v. foreign intelligence front, uncertainty as to delegation powers of the President, some certainty as to domestic groups or persons and even “intelligence” surveillance of such groups. There is a rule for full (not limited by relevancy) revelation of illegally obtained information to a criminally accused. How does that apply to a capriciously, or even “reasonably” detained person who has not had pre- or post- detention due process or to a militarily detained person “on a battlefield” that is argued to include the United States, even though courts are open and operating here?  How does it apply to innocent Americans who were granted civil enforcement rights under FISA and yet were routinely subjected to warrantless, non-particularized, surveillance and storage of their personal information?

Many of the unanswered questions are, after all, questions the Supreme Court would just as soon not have to answer, if for no reason other than the one pointed out by Judge Ferguson – that no matter what egregious government behavior the court is faced with, the courts have little power to remedy that situation. I would argue, though, that there is more power than Judge Ferguson had available to him. After the Church commission findings that many peaceful Americans and journalists and even politicians were wiretapped, the Foreign Intelligence Surveillance Act was passed. FISA put limits on the government’s ability to claim that it had legally engaged in foreign surveillance, requires oversight by a court – even if it is a secret court, and recognized the problems with relying on the same prosecutors who were violating the law to prosecute themselves or their superiors by creating a direct action by citizens against the illegal and uninvited ears.

To date, no court has allowed any American citizen to avail themselves of the FISA civil penalties in connection with the massive warrantless government programs, despite the fact that those penalties written specifically to address the problem Judge Ferguson pointed out and to allow for a remedy when the Executive runs amok. One reason they have not done so is that they have consistently agreed that petitioner in a case under FISA could not have access to the very information that the Keith case required to be made available to defendants in the criminal cases there. And they have denied such access based on the same kind of Reynolds affidavit that even Justice White found insufficient in a case, such as the Keith case, where there was a statutory scheme that made non-compliant government action criminal .

These aspects of the Keith case (or at least my take on these being aspects) – the Reynolds affidavit, Justice White’s concurrence in the Keith case, duties of the Federal intelligence Surveillance Court under Alderman, and the FISA civil penalties overlay – those may have to wait for a part III. ;)

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Originally Posted @ https://www.emptywheel.net/department-of-justice/page/19/