al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

images5thumbnail1.thumbnail.jpegIn 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.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

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

Extension And Delay In al-Haramain

As covered here and here, a Motion For Summary Judgment is pending in al-Haramain v. Obama, set in front of Judge Vaughn Walker in NDCA. Just to keep you apprised of the status, there has been a stipulation and order entered to extend certain time limits previously set in the matter.

Counsel for the Government Defendants has conferred with counsel for plaintiffs and sought agreement on a short two-week extension of the briefing schedule and a modification of the hearing date due to the press of business and other scheduling conflicts arising after the plaintiffs filed their motion. To facilitate this agreement, counsel for Government Defendants advised plaintiffs’ counsel that the Government does not presently anticipate submitting classified information in support of the Government’s position in response to plaintiffs’ motion or with any cross motion.

The one useful tidbit here is the government’s avowal that they do not intend to submit or rely on any classified information in their pleading. Certainly not shocking, in fact it is predictable. It is however important because neither we nor the plaintiffs want to delay things even further. There is no reason to give the government another month of delay on top of the delay that would be caused by classified filings, which would of course require proceedings to arrange for plaintiffs to review them under secure conditions per Judge Walker’s previous putative protective order.

One further reason why Coppolino likely isn’t going to do any further classified filing is because Judge Walker has indicated that if the plaintiffs review anything classified, they will probably get to review everything classified, both past and present. That would be crucial because it would mean the plaintiffs get to see the February 2009 filings correcting the so-called "inaccuracy," which you can be sure the government does not want them to see. Obama, Holder and Coppolino will probably do just about anything to avoid plaintiffs seeing those "corrections".

Assuming the government, through lead attorney Tony Coppolino, actually keeps his word and relies on information solely within the public domain, however, it increases the likelihood they will merely restate the same tired old defense that they are entitled to dismissal on state secrets grounds. Yes, I know, how shocking they could once again spew the same old junk. They cannot, however, materially contest the facts proffered by the plaintiff in the motion for summary judgment, because under the rules governing handling and disposition of such motions, specifically Rule Read more

Good Question. What DID Happen to that Promised State Secrets Policy?

As I mentioned above, I’ve been prepping for a panel on Saturday on torture. And so I’ve been reviewing all the things DOJ promised us in mid June or early July that they still haven’t delivered on: The OPR Report, the torture investigation, and–as Daphne Eviatar points out–the new State Secrets policy.

As I reported almost two months ago, Holder told the Senate Judiciary Committee on June 17 that he would issue a new policy on when the government will invoke the state secrets privilege to conceal evidence from the public — and even from federal court judges — “in a matter of days.”

Well, it’s August, and still nothing. After Ed asked me the question, I followed up with Dean Boyd, spokesman for the Justice Department’s national security division, asking him if that policy had ever been issued. After all, maybe we’d just missed it.

Boyd’s response:  “Not yet; still in the works.”

Presumably, DOJ is trying its luck with some of the State Secrets claims outstanding, such as the Jeppesen claim that the 9th will almost certainly sustain (meaning State Secrets can only be applied to evidence and not information generally). 

And presumably DOJ figures that, with SJC occupied until recently with the Sotomayor confirmation, no one would notice.

In case anyone is wondering, Daphne and I have both officially noticed.

CIA Fraud In State Secrets Assertions

There is a new case causing a stir on the state secrets front today. The case is Horn v. Huddle et. al, is filed in the DC District, and has been quietly going on behind the scenes since 1994. From Del Wilber at the Washington Post:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Judge Royce C. Lamberth wrote that he was also considering sanctions against five current and former agency lawyers and officials, including former director George Tenet, for withholding key information about the operative’s covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history."

Here is the ruling issued by Judge Royce Lamberth today that set off the firestorm.

There is a lot of great background on the case, and events behind it, in an old post from Bill Conroy at Narco News in 2004:

Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.

After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.

After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year [2004] after crucial evidence in the case was suppressed on national security grounds.

What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.

Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.

“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and Read more

Stunning al-Haramain Filing Shames Obama; Shows Duplicity Of Officials

In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney Read more

Ending the Gang of Eight

This is welcome news:

In a move that could spark another fight with the GOP over CIA intelligence and secrecy, House Dems are quietly preparing to make major changes to the ways the CIA briefs Congress on covert actions, by broadening the pool of members of Congress who will have access to such private briefings, a source familiar with deliberations says.

Dems on the House Intelligence Committee have drafted a new bill that would strip the President of his authority to limit such briefings to the so-called “Gang of Eight” — the leaders of the House and Senate from both parties, and the leaders of the Congressional Intelligence committees — and allow a larger group of members of Congress to attend.

The move, which is being championed internally by House Intel chair Silvestre Reyes, would also compel the CIA to keep a far more detailed record of these briefings, though these details still need to be worked out.

Greg predicts a partisan fight over this. But I’m actually more interested in how the Obama Administration will respond. After all, it has repeatedly defended the Bush Administration’s interpretation that the Executive has fairly unlimited power to decide how to treat classified information and seems to be stonewalling any new legislation limiting state secrets. Eliminating the stupid Gang of Eight rule would be a significant check on the President’s power to limit both the policy and political discussions on its secret programs. It would not surprise me all that much if the Administration opposed this bill–and with Greg’s predicted opposition from Republicans, it would make it hard to override a veto.

Nevertheless, this measure–had it been in place before the Bush Administration–might have limited some of the illegal measures Obama claims to oppose: the Iraq War, warrantless wiretapping, and torture. Eliminating the Gang of Eight brings a very manageable transparency to Executive Branch decisions–the kind of transparency that would do some real good.

So while I look forward to a bunch of hypocritical whining from Republicans about this, I’m much more interested in what response it elicits from the Obama Administration.

Eric Holder’s Secrets

I wanted to call your attention to one passage of the petition for an en banc hearing of the Jeppesen case (that is, a request that the 9th Circuit revisit its decision that state secrets only applies to evidence, and not information).

These conclusions by Director Hayden and the district court have been reinforced by an additional review – following the panel decision in this case – at the highest levels of the Department of Justice. Based on that review, it is the Government’s position that permitting this suit to proceed would pose an unacceptable risk to national security, and that the reasoning employed by the panel would dramatically restructure government operations by permitting any district judge to override the Executive Branch’s judgments in this highly sensitive realm.

I pointed out a very similar passage in the latest government filing in al-Haramain.

Furthermore, even after the Ninth Circuit issued its decision, an additional review was conducted at the highest levels of the Department of Justice to determine whether continued invocation of the privilege was warranted in response to the plaintiffs’ claims under FISA.

What these "highest levels of the Department of Justice" reviews are, apparently, are the fruits of Eric Holder’s promise to review the state secrets invocations of the Bush Administration to see whether they are "legally appropriate."

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

I guess this is how we’re going to find out the results of his review, case filing by case filing?

Mind you, the results–that the Obama DOJ continues to support Bush’s sweeping invocations of state secrets to hide Bush-era crimes–are no surprise. We’ve been getting evidence of that in piecemeal fashion since Holder was confirmed in February. 

I just think maybe Holder could do us the favor of releasing the results of his review, under his own name rather than the imperious "highest levels of the Department of Justice." Holder’s DOJ (and President Obama) is about to make this a separation of power issue–but they’re doing so in ways that minimize the political pressure to break with Bush’s practices. This Holder review is being waved around like some gold standard in court filings, but hidden from Read more

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