In a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.
Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.
At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.
On whether the government’s surveillance program was lawful:
Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more