Archive for category: emptywheel

As I pointed out in this post, the Senate Intelligence Committee used a remarkable argument to justify giving the telecoms immunity in their FISA bill. Basically, it argued the telecoms could neither prove or disprove whether they were entitled to immunity according to existing statutes, because the mean old Bush Administration had invoked State Secrets. And therefore, the invocation of State Secrets put them in an unfair position as they tried to defend themselves against lawsuits.

To the extent that any existing immunity provisions are applicable,however, providers have not been able to benefit from the provisions inthe civil cases that are currently pending. Because the Government hasclaimed the state secrets privilege over the question of whether anyparticular provider furnished assistance to the Government, anelectronic communication service provider who cooperated with theGovernment pursuant to a valid court order or certification cannotprove it is entitled to immunity under section 2511(2)(a)(ii) withoutdisclosing the information deemed privileged by the Executive branch.

[snip]

Providers who did not assist the Government are similarly unable toextract themselves from ongoing litigation, because the assertion ofthe state secrets privilege makes it impossible for them to demonstratetheir lack of involvement.

So the logic, in general, is that it is unfair for a defendant in a civil suit to be prevented from defending itself because the government has invoked State Secrets and thereby prevented the defendant from introducing the evidence that would prove its innocence or its immunity.

Of course, the Senate Intelligence Committee is only making that argument in the context of its desire to convince telecoms to cooperate with the government, regardless of the laws that are supposed to guide that cooperation. I’d bet you that, if a defendant were unable to defend itself from lawsuits because the government invoked State Secrets, and if that defendant had not cooperated with the government in illegal wiretapping, no one would bat an eye at the injustice.

Well, we’re going to get to see just that in the civil suit against Joseph Nacchio and other former Qwest officials. Because there, the government is invoking State Secrets in a case against individuals who refused to cooperate because–at least Nacchio claims–they believed cooperation would have been against the law.

I think it’s great that Rachel Paulose has resigned (h/t JF)

Rachel Paulose, the embattled U.S. attorney for Minnesota, will beleaving the post to take a position at the Justice Department inWashington, according to a Bush administration official and acongressional aide.

According to a news release sent by thedepartment of justice, Paulose has accepted a position as Counselor tothe Assistant Attorney General for Legal Policy at the Department ofJustice in Washington, D.C. Ms. Paulose will resign from her currentposition and assume her new role effective in early January 2008.

But why in god’s name are we keeping her on the taxpayer’s dime?

I can only imagine that her claims that she’s being targeted because she’s a Federalist Society member would make her hard for someone to fire…

The McCarthyite hysteria that permits the anonymous smearing of anypublic servant who is now, or ever may have been, a member of theFederalist Society; a person of faith; and/or a conservative(especially a young, conservative woman of color) is truly a disserviceto our country.

…particularly someone who had to be vetted by the Federalist Society to get his job. But c’mon folks!

As you’ve no doubt heard, yesterday Pat Leahy pulled some superb parliamentary maneuvers to ensure that the SJC version of the FISA amendment came out of committee without immunity for telecoms. He basically just severed the part which permits the wiretapping from the part that gives immunity. Voila!

Unfortunately, it still seems likely that Harry Reid will let the SSCI bill–the one we don’t like–come to the floor of the Senate. Pat Leahy pulled some nice maneuvers, but Reid has a few more aces in his hand. And in any case, it may be utterly moot.

When Arlen "Scottish Haggis" Specter has discussed his "compromise" on immunity in the FISA amendment, he has said he thought the cases in CA would be thrown out on State Secrets grounds anyway; his compromise (in true haggis fashion) is really designed to save the telecoms money while they’re waiting for the courts to throw out the cases.

Turns out they might not have to wait that long–and immunity may be moot anyway. That’s because the 9th Circuit, in a unanimous decision, threw most of the most Kafkaesque illegal wiretap case out.

A federal appeals court dealt a near-fatal blow Friday to an Islamiccharity’s lawsuit alleging federal investigators illegally wiretappedit, saying a key piece of evidence the charity planned to use is aprotected state secret.

A top secret call log that the Treasury Department accidentallyturned over to the now-defunct U.S. arm of the Al-Haramain IslamicFoundation’s lawyers can’t be used as evidence, the 9th U.S. CircuitCourt of Appeals ruled.

[snip]

The charity’s lawyers voluntarily turned over the document to FBIagents after it was given to them. A lower court ruled that the lawyerscouldn’t use the actual document to support their lawsuit but could usetheir memories of its contents to go forward.

[snip]

"Such an approach countenances a back door around the privilege andwould eviscerate the state secret itself," Judge M. Margaret McKeownwrote for the unanimous three-judge panel.

So basically, these guys have proof they were spied on, they’ve seen it, but the government is requiring that they legally wash their minds of any memory of that proof, so as to preserve State Secrets.

The Appeals Court decision on the Hepting case is pending–it relies on some other kinds of evidence–but it’s a really amazing concept, this State Secret thing. The government, of its own accord, gave out the secret. But it expects individuals to be bound by it. Further, it expects defendants to forgo attorney-client privilege, apparently, because there’s going to be no way of proving the government deliberately violated privilege.

Swell.

Time to think of some novel ways to force the government to stop spying illegally. And it’s probably time to write some restrictions on spying on attorney-client privilege, too. Because the available options don’t appear like they’re going to work.

It seems the only thing Republicans do more consistently than troll for extra-marital sex in public places is delete their emails. Via CREW, ABC News is reporting that Congressman Feeney is spending a chunk of money in an attempt–apparently–to reconstruct some lost emails.

Since April, Rep. Tom Feeney, R-Fla., has paid over $90,000 to aWashington, D.C. office of FTI Consulting, through his re-electioncampaign and a separate legal defense fund he began in June, according to financial filings and a news account.

The payments were for helping Feeney "voluntarily cooperate" withfederal prosecutors, according to Pepper Pennington, the congressman’sspokeswoman.

Among its specialties, FTI provides "electronic evidence consultingfocused on time-sensitive situations," "computer forensic services" and"e-mail reconstruction," according to the firm’s Web site.

The Department of Justice has reportedly sought e-mails from Feeneyregarding interactions between the lawmaker’s office and Abramoff, thedisgraced former Republican superlobbyist who was arrested in 2004 andhas been cooperating with government investigators.

Now, granted, I’m extrapolating from the news that Feeney is spending $90,000 to a firm that reconstructs emails to the assumption that the emails in question disappeared. But if I’m right, it puts Feeney in the company of Bush and Cheney and Rove and Matt Blunt–all of them suspected of doing some not quite Read more →