Some Clues to What “Inaccurate” Information Bush Provided in al-Haramain

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As I reported earlier, Obama’s DOJ just confessed that the information Judge Vaughn Walker has received in the al-Haramain suit was "inaccurate."

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.

This post will make some wildarsed guesses about what "inaccurate" information DOJ provided to Vaughn Walker. As I explain below, I think the new declarations admit to new aspects of the warrantless wiretap program in general (most likely the way the government used datamining to select surveillance targets) and/or they admit that warrantless wiretapping was used to get warrants otherwise presented as legal.

How al-Haramain Got Declared a Terrorist Organization

Before I explain why I believe that to be the case (and it is speculation, mind you), let me go back and explain two chronologies: how al-Haramain got designated a terrorist organization, and where the evolving description of the warrantless wiretapping program used in this suit came from.

The Office of Foreign Asset Control declaration included in this brief and this related al-Haramain complaint describes a little bit about how al-Haramain was declared a terrorist organization. (OFAC is the entity that manages financial sanctions, including freezing the assets of terrorist groups. It is a named defendant on this suit.)

On February 18, 2004, citing an evidentiary brief included in the declaration (but never shown to al-Haramain), OFAC preliminarily froze al-Haramain’s assets. That same day, federal agents searched al-Haramain’s Oregon office.

From March through September, an Oregon law firm representing al-Haramain worked with OFAC to respond to the initial freezing of assets. OFAC provided these attorneys with unclassified materials purporting to explain the designation on April 23, 2004, July 23, 2004 and August 20, 2004. The two main pieces of evidence–culled from news articles and internet commentary often not even directly relating to the Oregon al-Haramin–pertained to allegedly inflammatory language included in Korans distributed by al-Haramain and charitable donations al-Haramain had made to Chechnya.

In addition to the unclassified information turned over, OFAC referenced–but never turned over–"classified documents that are not authorized for public disclosure."

The surveillance log at issue in this case was included (accidentally, the government says) in the batch of information handed over on August 20, 2004. Read more →

The al-Haramain Stall Timeline

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With the news that Bush’s DOJ submitted "inaccurate" information to Judge Vaughn Walker, I wanted to look at the recent timeline on the al-Haramain suit to identify the ways Bush and Obama/Dead-Enders postponed alerting Walker to this fact up until the moment it became clear he would get to review the wiretap log from al-Haramain. I’m guessing Obama discovered at least several weeks ago (February 11?) that the information provided to Walker was "inaccurate" and much of the actions since have been an attempt to avoid having to admit to Walker that he had received "inaccurate" information. (Though Bush no doubt knew this fact–and was trying to hide it–much longer.)

January 5, 2009: Walker announces he’ll review the wiretap log to see if al-Haramain was wiretapped illegally. He sets the following deadlines:

  • January 19 (14 days): "defendants shall arrange for the court security officer/security specialist assigned to this case in the Litigation Security Section of the United States Department of Justice to make the Sealed Document available for the court’s in camera review. If the Sealed Document has been included in any previous classified filing in this matter, defendants shall so indicate in a letter to the court."
  • February 13: Clearance for al-Haramain’s lawyers.
  • February 19 (45 days):"Defendants shall review the Sealed Document and their classified submissions to date in this litigation and determine whether the Sealed Document and/or any of defendants’ classified submissions may be declassified, take all necessary steps to declassify those that they have determined may be declassified and, no later than forty-five (45) days from the date of this order, serve and file a report of the outcome of that review."

January 9, 2009: al-Haramain’s attorney, Jon Eisenberg emails DOJ’s lead attorney, Anthony Coppolino, to confer on joint statement on how to proceed with case.

January 12, 2009:  Coppolino asks Eisenberg for a proposal.

January 13, 2009: Eisenberg emails Coppolino a plan.

January 15, 2009: Coppolino emails he hopes to respond the following day, first raises possibility of separate statements. 

January 16, 2009, 8:21 PM: Bush appeals Walker’s January 5 order.

January 17, 2009: Eisenberg leaves email and voicemail about appeal. 

January 19, 2009, 10:56 PM: DOJ files for a stay. 

In separate filing, Bush DOJ tells Walker he already has the Sealed Document.

The Sealed Document at issue in this case has been lodged previously in this action with the appropriate court security officers.

January 20, 2009: Obama inaugurated President.

February 2, 2009: Eric Holder confirmed as Attorney General; as of this moment, he had not been read into the illegal wiretap program.

February 11, 2009: DOJ argues its case for a stay, and requests an interim stay before al-Haramain’s lawyers get their clearance and the government submits its classification review.

The Government also requests that at least an interim stay be entered by February 13, 2009—the date after which further proceedings may commence under the January 5 Order.

Read more →

Did Bush Lie to Vaughn Walker?

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Yesterday, after the 9th Circuit refused the Obama/Dead-Ender appeal in al-Haramain case, the Obama Administration filed two documents to try to minimize the damage of Judge Walker’s presumably imminent review of whether or not George Bush broke the law when it wire-tapped al-Haramain’s lawyers. I discussed this filing, which warned Walker that they intend to fight his efforts to make information available so al-Haramain’s lawyers can litigate the suit, here. 

Sometime after the Obama Administration posted that filing yesterday, they posted this one, which mostly fulfills an order Judge Walker gave them on January 5 to determine whether any of the materials entered in the case thus far could be declassified.

The Government hereby reports, as set forth in the attached public declarations, that the classified information at issue in this case remains classified and is not subject to declassification under Executive Order (“E.O.”) 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by E. O. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).

Not to be picky, but they missed the 45-day deadline Walker gave them by 8 days.

That news from the filing–that they maintain this information is still classified–is not surprising.

But this is:

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.

Given that Obama has not yet submitted classified information in this case, this almost certainly means that the Bush Administration submitted "inaccurate" information in one of its past representations to Walker.

Or, to put it another way, now that Walker is going to look at the wiretap log from al-Haramain and assess whether or not the wiretapping was legal, the Obama Administration is changing the record in some meaningful way.

Obviously, we don’t get to know what Bush either lied or hid, but here are three possibilities:

  1. Bush withheld something (to use WO’s speculation, perhaps something like proof that they not only wiretapped al-Haramain’s lawyers’ conversations with al-Haramain, but that they also wiretapped the lawyers’ conversations with others?) and it is now being advanced as an "inaccuracy"
  2. Obama is introducing something new (perhaps some evidence that might go further to support an otherwise nonexistent probable cause determination) in an effort to limit the damage of the impending Walker review Read more →

Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning

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The Executive Branch’s Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney’s rancid flesh.

Courts Get to Determine Classified Information for Their Trials

First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors–as distinct from elites like Cheney–could determine what counted as classified information.

Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.

Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.

A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.

(Someone’s been reading their bmaz.)

Lawyers Get to See Classified Information Their Clients Need for Their Defense

Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that. 

So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.

Back to al-Haramain: Obama Argues against Article III Review

And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.

Read the whole thing. Read more →

Obama’s FISA Headache

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As I reported, the 9th Circuit has rejected the Obama/Dead-Ender appeal on the al-Haramain case. 

We’re not out of the woods yet (apparently Judge Walker is out of his office until Monday, and Obama and his DOJ presumably are not). But here’s some context on why the 9th Circuit’s rejection of Obama’s appeal is so significant.

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

But there are at least three other reasons why this is important.

Al-Haramain’s Dates

I pointed out in this post that al-Haramain has reason to believe (and remember–they’ve read the wiretap log) that they were wiretapped on, among other dates, March 11 and March 25.

I’m guessing, then, it is not a mistake that the lawyers are honing in on these dates. That is, I’m guessing that these specific conversations were among those described in the document that al-Haramain once had in hand. Which means that when Walker reviews the document, it’ll be affirmation of precisely the argument al-Haramain makes here.

It’s easier writing these things, I guess, when you’ve seen the answers to the test.

But that’s not the really delectable part of the description of these calls. Look at this sentence.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.[my emphasis]

Hahahahahahaha!!!

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.

This means that any review arising out of this proceeding will not just focus on the larger illegal wiretap program, but on Bush’s actions on March 11, 2004, to override the advice of DOJ and allow the program to go forward only with the approval of his then-White House counsel, Alberto Gonzales.

Read more →

BREAKING: The 9th Circuit Says State Secrets Can’t Halt al-Haramain Suit

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In an unexpected move, the 9th Circuit has rejected the Obama/Dead-Ender attempt to stay the al-Haramain suit against Bush for illegally wiretapping it.

The order is short and sweet:

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

I presume the Obama/Dead-Enders may try to appeal this. But in the interim period, Judge Walker can review the wiretap log and see if–as expected–it proves that the Bush Administration illegally wiretapped al-Haramain’s lawyers. 

Update: here’s the brief from al-Haramain.

Obama’s Two “Ifs” on FISA: Heads I Win, Tails You Lose

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Briefs on FISA are coming out in Northern California so fast and furious it’s hard to keep them straight. Just as a reminder there are two main cases:

  • al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
  • Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds

The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama’s interpretation of "if."

Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if’s" (and one "shall") appearing in FISA-related law.

"If" the Attorney General Wants the President to Avoid Penalty for Illegal Wiretapping

Here’s the language Judge Walker just reviewed in FISA 1806(f) in the al-Haramain case:

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. [my emphasis]

The government (under both Bush and Obama) has argued that the "shall" in 1806(f)–requiring the District Court Judge to review in camera and ex parte the materials relating to the surveillance to see if was legal–only kicks in after the "if" tied to the Attorney General in it. That is, the District Court Judge only reviews the underlying materials if the Attorney General files an affidavit saying that an adversary hearing would harm national security.

Judge Walker thinks that’s bullshit. Read more →

A Whole Heap of Bad Faith in al-Haramain

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The Obama Administration has filed its latest brief in the al-Haramain case. In its effort to shield the Bush Administration from liability for their crimes, it engages in a whole host of bad faith so as to prevent Judge Walker from actually making a determination that the al-Haramain lawyers were illegally spied on.

 As a reminder, Judge Walker’s January 5 order did three things. First, it answered the question the Appeals Court had remanded the case back to Walker to answer: does FISA, which imposes criminal penalties for illegal wiretapping, pre-empt state secrets claims? Walker answered that question in the affirmative: he reasoned that, if Congress passed a law imposing penalties on the executive for breaking the law, the executive couldn’t very well restrict access to the evidence that provides proof that the executive broke the law. Congress wouldn’t have provided for penalties if it didn’t intend for it to be possible to litigate those penalties.

Next, Walker said he would review the wiretap log that proves the government spied on al-Haramain illegally to see whether it proves the government spied on al-Haramain illegally. Very important: he said he would conduct this review in secret!!

Finally, Walker laid the groundwork for talking about how the case would proceed going forward, if, on review of the document proving the government spied on the al-Haramain lawyers illegally, he determined that the government spied on the al-Haramain lawyers illegally (frankly, I think this was a mistake on Walker’s part, but nevermind). Here’s the most important passage in which he does this:

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed —— that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to classified materials, only by placing and maintaining some or all of its future orders in this case under seal may the court avoid indirectly disclosing some aspect of the Sealed Document’s contents. Unless counsel for plaintiffs are granted access to the court’s rulings and, possibly, to at least some of defendants’ classified filings, however, the entire remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs of due process to an extent inconsistent with Congress’s purpose in enacting FISA’s sections 1806(f) and 1810. Read more →

That’s Why They Call It “Domestic” Surveillance

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One of my favorite parts in the EFF brief arguing that the retroactive immunity passed by Congress last year is unconstitutional is their response to the telecom brief’s claim that the President has inherent authority over foreign affairs, and so doesn’t need specific details regarding which telecoms should get immunity for having broken the law on President Bush’s orders.

EFF points out that, if this were just about foreign affairs, we wouldn’t be here.

Nor can the standardless delegation of section 802 be justified, as the carriers suggest (Carriers’ Br. at 3-6), by reference to cases involving the President’s exercise of inherent constitutional power over foreign relations with other nations or his inherent power to regulate and control the military forces. First, despite the efforts of the government and the carriers to blur the difference, the President’s inherent powers over foreign relations and the military do not extend to the warrantless dragnet electronic surveillance and interception within the United States of the domestic communications of millions of American citizens who have no connection to any foreign power. The President has no inherent constitutional authority to conduct such activities, as this Court has held, Hepting v. AT&T Corp., 439 F. Supp.2d 974, 1006 (N.D. Cal. 2006); see also In re Nat’l Security Agency Telecom. Records Litig., 564 F. Supp.2d 1109, 1121 (N.D. Cal. 2008), nor to order the courts to terminate litigation challenging such activities.

This is about domestic surveillance, not foreign intelligence, dummies.

Now, we know that the Bush Administration did, at one point, claim its inherent authority tied to foreign affairs extends right into the apartment buildings of average Americans.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Read more →

Funny Telecom Games on Retroactive Immunity

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There are two funny things in the telecom brief in response to Judge Walker’s questions about the retroactive immunity statute. (Here is EFF’s brief and Eric Holder’s.)

Don’t Cite the Statute

First, in spite of the fact that Walker asked the parties to address a specific question about a specific clause of the FISA Amendment Act, the telecom lawyers don’t get around to actually discussing the language of that clause until page 15 of a 17 page brief. There’s a reason for that. Once they do discuss the clause in question, they’re faced with precisely the problem that Walker (and bmaz and Mary) have identified: the language doesn’t tell the Attorney General whether he has to give the telecoms immunity, or simply can give immunity, at his whim.

Here, § 802(a) does not expressly state whether certification is mandatory or discretionary. It provides merely that a “civil action . . . shall be promptly dismissed, if the Attorney General certifies to the district court” that at least one of the five criteria in § 802(a) has been met (emphasis added). The Attorney General cannot submit a certification unless the standards of § 802(a) have been satis-fied, and the word “if” simply reflects that these standards will not be met in every case. But noth-ing in the statute specifies whether the Attorney General may decline to certify after determining that a case is eligible for certification. The statute does not state, for instance, that the decision whether to certify is committed to the “discretion” of the Attorney General. Nor does the statute use permissive language, such as the word “may.”

While Section 802 also does not specify that certification is mandatory, what is critical for purposes of constitutional avoidance is that it fairly admits of that construction. Section 802(e) re-fers to the “authority and duties of the Attorney General” (emphasis added). The use of the word “duties” indicates that § 802 imposes some mandatory obligation on the Attorney General, but the statute does not expressly identify which of the tasks it describes are mandatory. This ambiguity could be resolved by reading § 802 as imposing on the Attorney General a “dut[y]” to certify if he finds the predicate facts, if it were necessary to construe the statute in this way in order to save its constitutionality. Read more →

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