I watch Keith Olbermann, and his Countdown show on MSNBC, pretty much daily, but I have been critical of him in the past, most notably in his unflinching willingness to blindly support Barack Obama’s adoption of Bush/Cheney policies on civil liberties/surveillance and torture/detention. A prime example of this was my response to Olbermann and John Dean when they conjured up a ridiculous explanation to cover for Obama’s about face on FISA retroactive immunity last summer prior to the election. In The Obama & Olbermann Master Plan For Criminal FISA Prosecutions, I said:

Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

Well that was then, this is now. That was the right thing to say then, but now it is time to give Keith Olbermann some very deserved credit. The last two nights, Countdown has dedicated substantial time to the depressing and maddening adoption by the Obama Administration of the tricks and artifices of the Bush/Cheney regime. For a review of Keith’s work in this regard Monday night with guest Jonathan Turley, see Glenn Greenwald at Salon who, in writing this, I have discovered had the same urge to give credit where due that I feel here.

Tonight, Keith had on Kevin Bankston of the EFF, who has been on the front line of the consolidated suits pending in front of Judge Vaughn Walker from the outset, and is lead on the new hot button case of Jewel v. NSA described here by Marcy. As the EFF press release states about Jewel:

The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ’s radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama’s own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn’t change we can believe in. This is change for the worse.

No kidding. Please take a look at the video above of Olbermann with Bankston.

These are tough things to say about President Obama and his nascent administration and Keith Olbermann is to be commended for understanding the necessity for saying them. My hat is off for him doing so; please keep it up. In that regard, and as we wait for Judge Vaughn Walker’s critical decision in al-Haramain, let’s give some support to the effort. Donate to EFF or Accountability Now. Call, fax and email you congresspeople. Tell friends and family. Make a racket. The Constitution is worth it.

Yes, I know, I’ve been so preoccupied trying to save my state from JP Morgan Chase that I have not yet commented on the Obama Administration’s latest Cheneyesque invocation of state secrets, in the EFF/Jewel case. Of course, that means some smart lawyers have already beat up the filing on legal grounds. So I thought I’d focus my attention on tactical issues.

Three Interlocking Cases

Before I do that though, let’s review what this suit is and what else is going on. As Glenn pointed out, EFF filed this suit after Jello Jay Rockefeller, the patron saint of the awful FISA Amendment Act last year (and a big Obama backer), claimed during deliberations on that bill that,

…lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

Now, I don’t believe for a millisecond that Jello Jay actually intended for lawsuits to go forward–he was, instead, trying to dismiss opposition to immunity–but nevertheless, the legislative record on FISA now reflects that the bill’s sponsor thinks citizens should be able to sue those who illegally wiretapped.

Meanwhile, of course, there are two decisions still pending (as far as we know) before the judge in this case, Vaughn Walker. The first is the al-Haramain suit, in which the 9th Circuit already decided the warrantless wiretap program was a properly invoked state secret, but in which al-Haramain’s suit will probably go forward because Walker ruled the charity had proved it was an aggrieved party without the materials over which Bush invoked state secrets. Now (again, as far as we know), Walker is looking at the wiretap log and the other classified briefs submitted in the case, and deciding whether al-Haramain has standing (and therefore, whether the Bush Administration violated FISA). If and when Walker rules that the Bush Administration did violate FISA, there will be a giant fight over whether he, or the Administration, gets to decide which documents in that case will be made public and/or available to al-Haramain’s lawyers. (Contrary to almost all the reporting in the case, Walker has not yet decided whether or not he would require the government to hand over the wiretap logs and other briefs decribing the warrantless wiretap program.)

Finally, there’s the second pending decision–the EFF challenge to the immunity provision in FAA. Walker has suggested that he thinks Congress may not have provided specific enough instructions for the AG on how to certify which telecom should receive immunity. Thus, the legislative record from the FAA fight–the same legislative record in which Jello Jay said Americans should be able to sue their government for illegally wiretapping–has already been and will continue to be one of the central issues in the immunity challenge.

To sum up, Walker is deciding these four interlocking issues about the warrantless wiretapping cases all at the same time:

• Whether the Bush Administration violated FISA when wiretapping al-Haramain (and by association, with the wiretap program in general)
• Whether he can or should make materials submitted in the al-Haramain case public or available to al-Haramain’s lawyers so that case can move forward 
• Whether the same Congress that said "lawsuits against the government can go forward" provided specific enough instructions ot to the Attorney General to support immunity for telecoms
• Whether, in spite of what Jello Jay said, the Administration is still somehow immune from suit for illegally wiretapping

It’s this context, I believe, that explains why Obama Administration lawyers wrote what the lawyers all agree was one crappy-ass brief.

The State Secrets Invocation

From the perspective of the Administration trying to juggle these four issues, I think the state secrets invocation is the least exciting of these issues. While the invocation of state secrets here is a fresh invocation, it still pertains to a program the 9th Circuit has already ruled on in al-Haramain. The government brief highlights this decision with cherry-picked quotations:

“[W]e acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena”).

[snip]

Moreover, the Ninth Circuit has made clear that the focal point of review is whether the Government has identified a reasonable danger to national security—not a court’s own assessment as to whether information is a secret or its disclosure would cause harm. See Al-Haramain, 507 F.3d at 1203 (“[J]udicial intuition . . . is no substitute for documented risks and threats posed by the potential disclosure of national security information.”) [ed: trust me–they’re warming up this quotation for their next fight in the al-Haramain case itself]

[snip]

The Ninth Circuit has recognized that “a bright line does not always separate the subject matter of the lawsuit from the information necessary to establish a prima facie case,” and that “in some cases there may be no dividing line.”

[snip]

Al-Haramain itself was such a case. The Ninth Circuit held that the “very subject matter of the case” was not a state secret based on several public disclosures by the Government as to the existence of the Terrorist Surveillance Program. See 507 F.3d at 1197-1200. But the court nonetheless held that the case would have to be dismissed on the ground that the state secrets privilege precluded plaintiffs from establishing their standing (unless the FISA preempted that privilege). In Al-Haramain, the Ninth Circuit upheld the Government’s assertion of the state secrets privilege (unless otherwise preempted by FISA) and found that it foreclosed plaintiffs there from establishing their standing as a factual matter.

While the government’s cherry-picked quotations are not always on point, and in some places they have to hedge carefully on al-Haramain and other cases that have come before Walker, the invocation of state secrets is to a significant degree an attempt to set Walker, in his current mood, against the Walker (and 9th Circuit), that was much more sympathetic to the government’s claims earlier in these cases.

But there’s a huge problem–two of them, actually–with trying to get rid of this suit solely by invoking state secrets. 

First, the government didn’t appeal Walker’s ruling made in July 2008 that FISA trumped state secrets if al-Haramain showed aggrieved status without the wiretap log. That’s what they tried to appeal in January, when the Appeals Court said it had no jurisdiction. So they’re left repeatedly stating that they don’t buy Walker’s ruling that FISA trumps state secrets.

Defendants recognizes that the Court found an “[i]mplicit” waiver of sovereign immunity under 50 U.S.C. § 1810 in Al-Haramain Islamic Foundation, Inc. v. Bush, 564 F. Supp. 2d 1109, 1124-25 (N.D. Cal. 2008). But the Government respectfully disagrees with the Court’s conclusion and, for the record of this case, expressly reserve its position that Section 1810 contains no waiver of sovereign immunity to bring a damages claim against the United States.

[snip]

The Government recognizes that the Ninth Circuit in Al-Haramain remanded for consideration of whether the state secrets privilege is preempted by the Foreign Intelligence Surveillance Act, see Al-Haramain, 507 F.3d at 1205-06, and that this Court has ruled that the privilege is preempted by the FISA, see Al-Haramain, 564 F. Supp. 2d at 1115-125. As set forth below, the Government expressly preserves its position that the FISA does not preempt the state secrets privilege or other statutory privileges.

[snip]

Again, the Government preserves its position that FISA Section 1806(f) does not preempt the state secrets privilege or authorize a court to invoke its procedures in order to adjudicate whether or not a party has in fact been subject to surveillance and has standing.

[plus one much longer reservation starting on page 24]

They’re reserving the right to appeal this ruling, from the al-Haramain case, in this suit. But in this suit, at least, they’re swimming upstream, having screwed up last summer. 

Now, as Mary has explained, in the al-Haramain case too they can circle back around to this issue. But at that point, it may well be too late, if not for al-Haramain, then for the other suits.

After all, while Walker may never be able to release descriptions of the program publicly in the al-Haramain suit (frankly, I think he won’t really try), he may well rule that the wiretapping was illegal. And that may well change the calculus of the other two suits–one that is assessing whether or not Congress was specific enough in its immunity amendments, and the other based on the premise that if the government broke the law, Jello Jay said, then people should be allowed to sue. If, in a set of cases consolidated under Walker, he rules that the wiretap program was illegal even when used against a suspected terrorist organization, then can he rule out suits for citizens about whom there was absolutely zero probable cause? (And note, by this time, Walker will already know what information was collected on average citizens.) In other words, if and when Walker finds the program illegal in one case–regardless of whether he can share those details with the plaintiffs–then it presents problems for the government with the other two suits presented together.

Absolute Immunity

Which is why, I think, the government has now pulled absolute immunity out of its arse. 

Here, Anonymous Liberal’s assessment of the Administration’s misrepresentation of the law is very helpful (you legal types can tell me whether you agree with his reading–I’m interested in his take from a tactical perspective).

As I understand it, the DOJ is arguing that sovereign immunity has not been waived with respect to claims (such as the ones at issue in Jewel) that do not involve allegations of improper government disclosure of information. 

[snip]

The other provision, section 2712, states:

Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.

Now according to the DOJ’s brief, section 2712 should be interpreted very narrowly as only waiving sovereign immunity with respect to instances in which the government improperly discloses someone’s personal information or records (which the plaintiffs in the EFF suit do not allege). But as you can see, there’s nothing at all in the statutory language that would limit the waiver in that way. Section 2712 authorizes anyone who is "aggrieved" by a violation of any of the various relevant statutes (including FISA) to bring a claim for money damages against the United States. Can’t someone be "aggrieved" by being illegally spied upon, even if the government never publicly releases the information it gathered? This argument just doesn’t make any sense to me.

At least as AL reads it, the government is erroneously claiming that Congress only waived sovereign immunity in FISA in cases in which the government improperly released information.  In al-Haramain, of course, the government improperly released information from the wiretapping (albeit to the targets of the wiretapping themselves and, at least according to the FBI, by mistake). But for all us average citizens whose telecom data has been sucked up in an office in San Francisco, the government has made no such release. So, it seems, the government is trying to invent a way to reclaim the power of state secrets even if Walker’s ruling–that FISA trumps state secrets–remains and if Walker rules the entire program to be illegal. 

Frankly, if the government hadn’t consolidated the wiretapping suits, they needn’t have bothered. Because, except for al-Haramain, no one else (except for maybe Lawrence Wright) would ever be able to get past the hurdle of proving aggrieved status with state secrets in place. But if a judge can review filings to determine aggrieved status, and this particular judge just happens to be reading–as we speak–a bunch of filings describing the program, and if said judge realizes that the wiretapping not just of al-Haramain, but the underlying claim to reasonable cause under the Fourth Amendment, is totally illegal, then what happens?

Standing and the "Dragnet" Surveillance

Which is why I find the way the government’s focus on the plaintiff’s "dragnet" claim to be so fascinating.

Recall that the al-Haramain suit focuses primarily on the allegation that the government–having collected signals in whatever manner and established reasonable cause in whatever manner–wiretapped a number of named individuals. That suit is about the end product of the warrantless wiretap program, in which the government, having identified targets through whatever means that fell short of FISA’s probable cause, then wiretapped those targets without approval from the FISC.

But Jewel focuses on the first part of the warrantless wiretap program, the large scale collection of telecom signals and the subsequent data-mining of those signals to identify potential targets for wiretapping.

And, as a reminder, I suspect that the "inaccurate information" that the Bush Administration may have submitted pertained to the data-mining aspect of this program. 

With that in mind, read this passage, written by lawyers who are trying to keep the dragnet off limits, writing to a judge who now probably has read a description of the dragnet and may already be contemplating whether the dragnet–in addition to the more particularized wiretapping of the al-Haramain lawyers–is legal. 

It bears emphasis that plaintiffs’ allegation of a “dragnet” of surveillance by the NSA—the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans, see, e.g. Compl. ¶ 7—does not establish their standing. Even if that allegation were sufficient to avoid dismissal on the pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege. Plaintiffs cannot establish the existence of an alleged content dragnet (previously denied by the Government, see Hepting, 439 F. Supp. 2d at 996), or its application to them personally without the disclosure of NSA intelligence sources and methods. Similarly, plaintiffs cannot establish standing based on allegations that records concerning their communications were collected as part of (or apart from) the alleged communications dragnet. As this Court noted in Hepting, “the government has neither confirmed nor denied whether it monitors communication records and has never publicly disclosed whether [such a program] actually exists,” see 493 F. Supp. 2d at 997, and the Court further recognized, in barring discovery on this claim in Hepting, that:

Revealing that a communication records program exists might encourage that terrorist to switch to less efficient but less detectable forms of communication. And revealing that such a program does not exist might encourage a terrorist to use AT&T services when he would have done so otherwise.

Id.; accord, Terkel, 441 F. Supp. 2d at 917. The Government’s privilege assertion as to this allegation again demonstrates the exceptional harm to national security that would result from any further proceedings on this allegation. For this reason, plaintiffs cannot sustain their burden of showing that such a program exists, much less satisfy their burden of establishing standing by showing that their communication records were collected under such an alleged program.

The government quotes Walker himself, writing in a case in which plaintiffs had not yet proved they were an aggrieved party, in an attempt to argue that in this suit, too, plaintiffs would never be able to prove their standing, and therefore never be able to get to a point where a judge could review their status as an aggrieved party under FISA 

But all that pretends that they can time-transport back a few years, to a time when Walker hadn’t already reviewed details about this dragnet to assess its legality.

It’s like they’re saying, "even though we know and you know that there is a dragnet, the plaintiff’s assertion of such does not give them standing, so you can’t rule that they are included in a dragnet, even if you’ve already seen the proof that they are."

Now, frankly, I have no idea whether Walker can use his review of documents in the al-Haramain case to give the plaintiffs in Jewel standing. If his upcoming ruling said, "al-Haramain was illegally wiretapped, but in addition, the dragnet of innocent US person data is a gross violation of the Fourth Amedment," he might be able to, but if his ruling were limited to the March wiretaps of al-Haramain, it’d be a lot harder to do so.

But I suspect that the filings correcting the "inaccurate" information Bush submitted lay out this data-mining stuff in an attempt to prove reasonable suspicion with al-Haramain, which would then make the data-mining a central question of whether or not al-Haramain was legally wiretapped. To defend themselves in al-Haramain (and to stave off contempt charges), they may have been put in a position that made this suit a lot harder to defend.

In any case, though, this Obama DOJ appears to have thrown the desperate "absolute immunity" claim in here as a way to try to minimize the damage of all these factors collapsing in on themselves. That doesn’t mean it’ll work. Nor does it make it even remotely honorable.

By now, you’ve heard Sy Hersh’s explanation for why he hasn’t yet gotten the flood of revelations about the Bush Administration he had expected.

HERSH: I’ll make it worse. I think he’s put people left. He’s put people back. They call it a stay behind. It’s sort of an intelligence term of art. When you leave a country and, you know, you’ve driven out the, you know, you’ve lost the war. You leave people behind. It’s a stay behind that you can continue to contacts with, to do sabotage, whatever you want to do. Cheney’s left a stay behind. He’s got people in a lot of agencies that still tell him what’s going on. Particularly in defense, obviously. Also in the NSA, there’s still people that talk to him. He still knows what’s going on. Can he still control policy up to a point? Probably up to a point, a minor point. But he’s still there. He’s still a presence. [my emphasis]

This is not remotely surprising. We discussed the likelihood this was happening just days after Obama took over, as dead-enders tried to spike Obama’s promise to withdraw from Iraq. And there has been a ton of reporting on the burrowing of loyal appointees that Cheney accomplished before leaving.

But Hersh’s report that such stay behind includes NSA is of particular concern.

Not only does this raise concerns about the warrantless wiretap program and its use (particularly given reports that the NSA was segregating contacts with journalists, like Hersh, who has lots of contacts in the Middle East). But it raises concerns about whether or not Cheney sustains the practice–publicized during the John Bolton confirmation hearings–of getting the US person end of NSA intercepts (I have no idea whether Cheney would do this through dead-enders, whether he’s getting that much more directly, or whether he’s getting help from Israelis involved in our wiretap programs). A number of people suspected that Bolton had used NSA intercepts to undermine North Korean diplomacy (among other things). Such a practice obviously fits Cheney’s MO.

Yet more reason we need to reassess our use of electronic wiretapping  within the US.

Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. The ODNI IG will also examine the role of the National Counterterrorism Center (NCTC) in drafting and coordinating the threat assessments and legal certifications supporting periodic reauthorization of the Program; NCTC’s role in identifying targets and tasking Program collection; and NCTC’s use of the product to support counterterrorism analysis.

The CIA IG will examine CIA’s participation in the program, including the Agency’s role in preparing the threat assessments and legal certifications supporting periodic reauthorization of the Program.

Three points about the general scope. First, it’s clear from this description that CIA had the least claimed involvement in the program of the five agencies. And CIA’s former IG, John Helgerson, has just resigned (more detail–thanks for the reminder, MD and bmaz). Yet CIA’s IG, John Helgerson, is managing the reporting for the report (if I’m not mistaken, Helgerson CIA’s IG is less independent, at least in theory, than the other IGs). So they may be shielding certain information by having the least knowledgable agency do this review. 

Also, note the absence of Treasury or Office of Foreign Asset Contol. From the al Haramain suit, we know that OFAC was involved–at least tangentially–in the program (and my have been involved in preparing threat assessments). But we get no word on Treasury’s involvement in the program, if any.

And finally, remember the rules about IG reports in general–that they can’t require cooperation from the White House–and this report specifically–that telecom involvement is off limits. So we’re not going to learn some of the most important bits about this program, by design. 

DOJ Scope

And here’s the (almost) line by line:

 The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months.

DOJ started this in March 2006, not long after the discovery of the program.  Remember, Bush tried to spike this investigation by refusing clearance for the investigators in OPR.

The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

Several points here. First, DOJ OIG is investigating whether any information from the program got dumped into FISA warrants later. I’m also curious about the "compliance with relevant authorities," because it suggests that even in an illegal program there may have been abuses (remember how many reports Glenn Fine has done about FBI’s abuse of National Security Letters–this is right up his alley).

The big one, of course, is this: "use of and control over Program information." At least last September, Fine was investigating (and had been for a long time) whether or not the information collected pursuant to counterterrorism was used as such. Lucky for us, Fine is the standout among Bush-era IGs.

And then the parallel to OPR’s investigation of the torture memos (and I believe this, too, is conducted in conjunction with OPR).

 The review also describes various legal assessments of the Program, legal and operational changes to the Program,

Fine is investigating the OLC memos and how they changed as Cheney’s dreams got wider and wider. 

NSA Scope

Like Fine, NSA’s IG (George Ellard) is investigating how the program evolved and how the authorization evolved. 

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program,

And it’ll tell us–or Congress, at least–the technical aspects of the program. 

The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders.

It strikes me that the NSA wants to tell Congress that it didn’t have access to John Yoo’s crappy memos authorizing this. And that it wants to talk about how it worked with FISC–perhaps to retain credibility lost because of this program.

And note that NSA, like DOJ, wants to talk about the transition period. There’s something that happened in that transition period (the first half of 2007, basically) that they want to tell us about.

Also like DOJ, NSA had started on this process before Congress ordered it to do a report.

To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

DOD Scope

DOD’s side of the investigation is rather limited. 

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

Though this may be interesting in any case for two reasons. First, because Rummy brought John Poindexter in to do Total Information Awareness under DARPA in the first place.  And because DOD was prohibited from using funds to do such data mining starting in 2003. But DOD’s IG department is not as honest as DOJ of CIA IG, so who knows what we’ll actually learn?

ODNI and CIA Scope

Now, the most curious aspect of the ODNI scope is that ODNI was only established by statute in December 2004–after some of the more troublesome known aspects of the warrantless wiretap program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program.

So what will we learn about communication with telecoms, when most of the really pressing communcications happened earlier, in 2001 and 2002, when establishing the program, and 2004, when the telecoms were asked to wiretap based on the say so of President Bush and Gonzales alone? Do we get to learn about those earlier communications? 

And then there’s this similar scope for both ODNI and CIA.

The ODNI IG will also examine the role of the National Counterterrorism Center (NCTC) in drafting and coordinating the threat assessments and legal certifications supporting periodic reauthorization of the Program; NCTC’s role in identifying targets and tasking Program collection; and NCTC’s use of the product to support counterterrorism analysis.

The CIA IG will examine CIA’s participation in the program, including the Agency’s role in preparing the threat assessments and legal certifications supporting periodic reauthorization of the Program.

Well, this is news. Apparently, the NCTC and CIA (but not the OFAC, if you believe this scope) prepared threat assessments and legal certifications supporting this program. It will be interesting to see how those reports were used. In his declarations in support of state secrets in the al Haramain case, then DNI John Negroponte talked a lot about hiding the true nature of al Qaeda for his rationale for state secrets. 

Well, given that it took 6 months to get the scope of this report published, I’m not holding my breath for the report (due in July). But this gives you some idea of what we might learn, come July September December next March.

Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report.  We note that on January 15, 2009, Mr. Bradbury issued a “Memorandum for the Files” criticizing OLC opinions issued in 2001-2003.  He wrote that the January 15^th memorandum and a previous memorandum were not “intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility.”  If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC’s behalf in the January 15^th memorandum, particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities.

As well as a bunch of questions about whether allowing the subjects of an investigation normally get to comment on the outcome of it. 

1. Was Steven Bradbury involved in reviewing and commenting on the draft OPR report?   
2. Is there any precedent for allowing the subject of an OPR investigation to review and provide comments on a draft report on OPR’s findings and conclusions?
3. Have the former Justice Department attorneys who are the subjects of the investigation been given a deadline for responding?
4. Will OPR provide Attorney General Holder and Deputy Attorney General Ogden with the draft report that it provided to Attorney General Mukasey so that Attorney General Holder and Deputy Attorney General Ogden will know what revisions have been made to the report?

Somehow, I get the feeling Mukasey tried to stall this out for several months. 

Of course, Durbin and Whitehouse don’t ask the natural follow-up–will Holder let them continue to stall this out?

In honor of what appears to be warrantless wiretap day here at emptywheel, I’ve got myself lost in some hopeless weeds. Among other things, I decided to compare the unclassified declarations DNI and NSA submitted in the ACLU case on May 27, 2006 (I’m not positive, but I think they submitted identical declarations in the other pending warrantless wiretap cases) with those submitted in the al-Haramain case on June 21, 2006. (Note, in both cases, classified filings were submitted at the same time, but we don’t get to see those.)

Here they are:

ACLU: DNI John Negroponte declaration, Major General Richard Quirk (NSA) declaration

al-Haramain: DNI John Negroponte declaration, Lieutenant General Keith Alexander (NSA) declaration

As you’ll see, these declarations are almost the same in many respects, though subtly different particularly in how they discuss the warrantless wiretap program and whether or not they can disclose that someone has been wiretapped.

For the moment, I’m most interested in how they describe the warrantless wiretap program.

In the ACLU case (and the CCR case), the government claimed,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization …

In the al-Haramain case a month later, the government said,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain international communications originating or terminating in the United States where there was reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. 

In a case where no one had proof they’d been tapped, NSA and DNI claimed that they were only using the program where "one party is associated with" al Qaeda. But in a case where the plaintiff knew they had been tapped, the government weakened their claim to "reasonable grounds to conclude … one party is a member or agent of al Qaeda or an affiliated terrorist organization."

How much, in the month longer it took them to invoke state secrets in al-Haramain, do you think they pondered the possibility that a judge would demand proof that al-Haramain "is associated with" al Qaeda?

And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." My guess is that they knew they had tapped US persons overseas talking to al-Haramain.

graphic by politicalbase

On March 10, 2009 Emptywheel noted that the five year statute of limitation on the initial criminal wiretapping acts by the Bush/Cheney Administration were expiring.

…the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.

This is because the one period of time that it is crystal clear that the Bush/Cheney surveillance program was operating without legal sanction was subsequent to the hospital incident:

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11.

Thus, even if the rest of the program were somehow deemed legal (which it wouldn’t be, because it violated FISA, which is the question at hand), it would be not be deemed legal on March 11, 2004, because the program didn’t have sanction from the Attorney General.

There are, or were at least, three critical dates on which the lawyers for the al-Haramain organization knew themselves to be wiretapped that occurred during the period in which criminality would undoubtedly attach, March 10, 11 and 25 of 2004. It is believed that the program was reinstated under formal footing (as opposed to being run on Alberto Gonzales’ worthless signature as was the case in the days after the hospital incident) in early April, 2004. So, while Emptywheel gave the obituary on the expiration of the first two dates of known criminal culpability, I am here to give the post mortem on the last. It died at 12 pm Eastern time last night.

Now the one entity that has, and has had all along, the proof of the Bush/Cheney criminality in its hot little hands is the United States Department of Justice. You would think that the national press would be swimming with articles about the DOJ declining to pursue Executive Branch crimes in the biggest conspiracy against American citizens in the history of the country. But nary a peep. The only sound was a regurgitating by the Washington Post of information we already knew and that perpetrates a misconception about the state of the al-Haramain case as it exists In Judge Walker’s court.

So, the day after the DOJ has let the five year statute for the known underlying criminal acts expire without any action, all the while fighting like rabid dogs to conceal the criminality, the Washington Post and the rest of the media are as silent as a vacuum about the government shirking its duty to the Constitution and citizenry.

Lovely. The national media is asleep at its insipid wheel and there is effectively no Justice Department, only the department of just us.

The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.

No.

As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Not only did Obama’s DOJ not appeal the 9th Circuit decision, but they provided additional information for Walker to review when he determines whether or not al-Haramain has standing!! If there were an "escalation" about any decision that had already been made, then why would Obama’s DOJ be making sure Walker got everything he needed to do his review?

Now, Obama’s DOJ has, undoubtedly, adopted Cheneyesque reasoning on the matter that is–or will shortly be–before the case: how to litigate a case that involves information covered by state secrets (the 9th Circuit has already decided this information qualifies). As a reminder, in addition to ruling that FISA trumps state secrets back in January, Walker also started the process of determining how much information the al-Haramain lawyers needed and could be given to litigate this case. The government did the background check to give the al-Haramain lawyers access to classified information, but it determined that they did not have a "need to know" and so could not be cleared for the details of the program. Walker responded by asking both sides to brief whether he–the judge–gets to determine whether the lawyers have a need to know, or whether the executive branch gets to.

But Walker hasn’t ruled on that issue yet!

So when the WaPo says,

In the al-Haramain case, Obama has not only maintained the Bush administration approach, but the dispute has intensified, with the Justice Department warning that if the judge does not change his mind, authorities could spirit away the top-secret documents. 

It’s nonsensical. The judge has not made up his mind yet, not about whether to show al-Haramain’s lawyers the documents pertaining to the program or not (he has said only they would need access to his own rulings, though he has suggested the would likely need much more), so why would he have to change it?!?!?! Indeed, the filing in question talks prospectively–suggesting procedures they’d like Walker to follow once he makes up his mind.

Accordingly, the Government respectfully proposes that the Court utilize the following procedures. First, if the Court proceeds on an ex parte, in camera basis to review the Sealed Document in order to address the issue of standing, then regardless of how the Court would then intend to rule, the Government requests that the Court provide notice to the Government of any order it would place on the public record, so that the Government may conduct a classification review and determine whether to appeal before any information over which the Government claims privilege is disclosed to the public.3 Second, if the Court directs the Government to determine that plaintiffs’ counsel have a need to know classified information, or overturns the Government’s rejection of counsel’s need to know, or in any way directs the Government to grant counsel access to such information, the Government requests that proceedings be stayed before any disclosure of classified information pursuant to such an order, so that the Government may consider whether to appeal. If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order. [my emphasis]

See that bolded bit? That’s proof that Obama knows well that Walker hasn’t decided yet. It’s proof that the issue under consideration now is no longer state secrets, directly, and instead whether the Courts or the executive branch decide which information can be revealed in litigation.

What Obama’s DOJ has asked for, basically, is that Walker not hand over the documents in this case without giving the Obama Administration an opportunity to appeal that decision.

Now, frankly, I’m all in favor of Walker’s ruling being submitted publicly in the docket. It’s time we get to learn whether Bush’s warrantless wiretapping program was legal or not. 

But effectively, what is going on now is what the legislation on state secrets proposes: that a judge first determines whether a plaintiff has standing, and then determines how to move forward with a suit involving such classified information. There are almost certainly going to be fights going forward about these classification issues. But that hasn’t happened yet. Obama has threatened to escalate these issues regarding classification. But he hasn’t done so yet.

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September 25, 2001 Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches authored by John Yoo. Tucked in that memo on page 10, innocuously stuck in the middle of all the Yoo goo, is this paragraph:

In order to police the line between legitimate foreign intelligence searches and law enforcement, most courts have adopted the test that the "primary purpose" of a FISA search is to gather foreign intelligence. See id.; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all courts, however, have felt compelled to adopt the primary purpose test. The Ninth Circuit has explicitly reserved the question whether the ”primary purpose" is too strict and the appropriate test is simply whether there was a legitimate foreign intelligence purpose. United States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit has explicitly held that such a formulation would be unconstitutional.

So it is quite possible that the reason the government today finds itself twisting in the 9th is because, at the start, they stupidly forum shopped looking for a tiny bit of extra advantage on the merits, when their whole defense rested not on the merits at all, but on states secrets, classification privilege and other obstruction. It sure isn’t the play I would have made were I in their shoes, but it is the best explanation to date for the insanity of the government not having fought tooth and nail to stay the heck out of the wooly 9th.

If that is indeed the reason, or even part of the reason, the cases were consolidated in the 9th, it was a fools errand. The 9th may have left the issue unresolved in Sarkissian, but it by no means left any indication that it would be open to a trumped up illegal skim like was being run by the "Bush Program". If the government thought they were going to build a life raft out of this thin reed, in the 9th Circuit of all places, they were stark raving mad.

Five years ago today, Andy Card and Alberto Gonzales rushed to John Ashcroft’s ICU room to try to trick him into signing the re-authorization for George Bush’s illegal wiretap program over Jim Comey’s objections. Jim Comey arrived at the hospital in time to prevent Card and Gonzales from succeeding.

Five years ago tomorrow, George Bush re-authorized his illegal wiretap program with only the signature of Alberto Gonzales–then White House Counsel–to give it legal sanction.

Five years ago today and tomorrow, attorney Wendell Belew spoke to al-Haramain Director Soliman al-Buthi by telephone. Belew has reason to believe–and once had clear evidence that may have proved–those calls were wiretapped under Bush’s illegal wiretap program.

As bmaz explained last year, in March 2004, FISA had a standard 5-year statute of limitation.

The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test.

That means that the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.

Now, as it happens, a District Court Judge may have or may be about to judge whether or not that wiretapping was illegal. I’m referring, of course, to the al-Haramain suit currently before Vaughn Walker. The last known development in that suit came eleven days ago, when the 9th Circuit ruled that Walker should review the wiretap log to determine whether it shows that al-Haramain is an aggrieved party (meaning they were wiretapped illegally), and when the Obama Administration corrected "inaccurate" information on the wiretap program probably submitted three years ago. Since then, nothing has appeared in the docket for the case.

The absence of any activity in the docket could mean one of two things. First, Vaughn Walker may still be reviewing all the new information he received on February 27–the four new declarations about the program–as well as the rather astonishing OLC opinions revealed last Monday. In other words, by flooding Walker with new information, the Obama Administration may have prevented Walker from ruling quickly on whether the al-Haramain wiretapping was legal until after the statute of limitations expire. He may still be wading through new legal issues that go beyond those raised by the wiretap log itself.

Or, it’s possible that Vaughn Walker has already ruled. As I pointed out over the weekend, the Obama Administration requested that Judge Walker show them in his order before he publishes it to the docket so they can conduct a classification review and decide whether to appeal his decision.

Accordingly, the Government respectfully proposes that the Court utilize the following procedures. First, if the Court proceeds on an ex parte, in camera basis to review the Sealed Document in order to address the issue of standing, then regardless of how the Court would then intend to rule, the Government requests that the Court provide notice to the Government of any order it would place on the public record, so that the Government may conduct a classification review and determine whether to appeal before any information over which the Government claims privilege is disclosed to the public. 

Frankly, if Walker said anything more than, "this suit may proceed" in his order, I would imagine he would respect DOJ’s request. So it’s possible he has ruled and DOJ has received his order.

If the latter scenario is the case, it would mean Eric Holder’s DOJ would have received a judge’s ruling that the wiretapping done five years ago was illegal. That is, DOJ may be sitting on a judge’s order finding Bush’s actions five years ago to be illegal under FISA.

Really depressing thought, isn’t it, to think that DOJ may be sitting there gaping at not just the evidence that shows Bush broke the law, but even a judge’s ruling that it did, even as the statute of limitations expires? Tick tock, tick tock, tick tock. Ding!!!!

Now, smart lawyers tell me there is still a way to hold Bush accountable for his actions five years ago–to charge the conspiracy to cover-up the criminal wrong-doing. I’ll let bmaz challenge that stance in the comments–but suffice it to say that, since DOJ has known about these activities all along, it’s going to be a hard case to make.

And, of course, there are later incidences of wiretapping (Belew also named a March 25 call, for example, as one he believed had been wiretapped) that probably fall in the period when the program operated with no sanction from DOJ. But even that would be all-but-impossible to indict between now and March 24.

Congratulations George Bush, Dick Cheney, David Addington, and Alberto Gonzales! With your stonewalling and delay, you appear to have avoided legal consequences for this particular crime committed while in office. You have deliberately violated a law designed to check presidential abuse of power, and Mukasey and Congress and Obama have let you get away with it.