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With Kagan On SCOTUS, We Are Still Down A Justice

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Letter to Earl Blumenauer Re: Indemnification Agreements

Dear Congressman Blumenauer:

I must say, I was both surprised and heartened to see you intrepidly and doggedly pursuing the existence and nature of indemnification agreements from the United States government insulating and immunizing private companies such as Halliburton/KBR from damage liability they would otherwise accrue for heinous, illegal and/or unconscionable acts committed in their participation in national security and the war on terror. Excellent work sir!

However, now that you are up to speed on the insidious use and abuse of such provisions, maybe you would like to continue your fine work – and give honor to your oath of office to defend the Constitution – and ask the same questions, and demand answers thereto, regarding indemnification agreements given to telcos by the Bush Administration in conjunction with the telcos’ participation in the illegal and unconstitutional warrantless wiretapping program instituted by the Bush/Cheney Administration. And we know the program was illegal and unconstitutional because a United States Federal Judge directly and specifically declared it to be just that.

So, what you need to know is that the same type of craven indemnification agreements you have pluckily exposed for Halliburton/KBR were almost certainly given to the telcos participating in the President’s Wiretapping Program, and you owe it to your constituents and the citizens of this country to look into it and get answers just as you have done here.

Now I know this may be a lot to grasp and there is much for you to learn in order to successfully pursue this matter, but by great and fortuitous luck, I have already laid out everything you will need to get going. In fact, I did it nearly three years ago, and here is a taste:

For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call “protectun Amarikuh”.

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, “We believe… that we have all the legal authority we need”. This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

But, alas, Congress, which you were a member of, went along like a bunch of blind lemmings with the Bush/Cheney Administration’s demand for immunity for telcos that, along with the dishonest assertion of state secrets, has completely eviscerated citizens’ ability to know and understand what illegal and unconstitutional actions the US government is taking in their name, not to mention ability to seek proper redress for the crimes and acts.

So, now that you are all hardwired in on indemnification abuse, and on a roll of success, how about you go ahead and pursue this part of it? Come on Earl, it is your duty after all. Thank you in advance for your attention and cooperation in resolving this important matter.

Sincerely,

bmaz

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

The Flaming Hypocrisy Of US Terrorist Designation

[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Government Remains Belligerent in al-Haramain; Will Fight On

Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Holder’s Catch-22 on the al-Haramain Ruling

Michael Isikoff reports that–as I suspected–DOJ would very much like to accept the Vaughn Walker ruling and be done with George Bush’s illegal wiretap program. But the Department of Justice led by a guy who got paid a lot of money to help Chiquita’s rich white Republican executives avoid criminal liability for their support of a terrorist organization is worried about the significance of paying a civil penalty to al-Haramain, which the government still considers a terrorist organization.

Of all the tricky decisions Attorney General Eric Holder is facing right now, here’s one that has lawyers at the Justice Department really scratching their heads. All things being equal, they would love nothing more than to let stand a federal judge’s recent decision that President Bush’s warrantless wiretapping program was illegal, thereby avoiding further legal skirmishes over one of the Bush administration’s most divisive legacies. But unless they appeal last month’s landmark decision by U.S. Judge Vaughan Walker, the U.S. government may be forced to pay damages into the bank account of one of the plaintiffs in the case: an Islamic charity that has been formally declared a Global Terrorist Organization.

Can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing “material support” to terrorists?

[snip]

… even a symbolic payment to a defunct organization’s frozen bank account could be problematic, potentially undermining a linchpin of the U.S. government’s anti-terrorist efforts.

I think Isikoff misses one important wrinkle to this dilemma, though.

As al-Haramain has made clear from the beginning, what got the organization put on the terrorist list in the first place was probably a conversation in which one of its lawyers mentioned Osama bin Laden’s brother-in-law. It’s likely, in other words, that al-Haramain Oregon is only on the terrorist list because of a conversation that was illegally wiretapped.

Here’s how Vaughn Walker synthesized the argument in his ruling from last January.

On February 19, 2004, the Treasury Department issued a press release announcing that OFAC had blocked Al-Haramain Oregon’s assets pending an investigation of possible crimes relating to currency reporting and tax laws; the document contained no mention of purported links between plaintiff Al-Haramain Oregon and Osama bin-Laden. ¶¶ 30-31.

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. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.) ¶¶ 34-35.

In the telephone conversations between Belew and al- Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit. Id.

In a letter to Al-Haramain Oregon’s lawyer Lynne Bernabei dated April 23, 2004, OFAC Director Newcomb stated that OFAC was considering designating Al-Haramain Oregon as a Specially Designated Global Terrorist (SDGT) organization based on unclassified information “and on classified documents that are not authorized for public disclosure.” ¶ 36. In a follow-up letter to Bernabei dated July 23, 2004, Newcomb reiterated that OFAC was considering “classified information not being provided to you” in determining whether to designate Al-Haramain Oregon as an SDGT organization. ¶ 37. On September 9, 2004, OFAC declared plaintiff Al-Haramain Oregon to be an SDGT organization. ¶ 38.

In a press release issued on September 9, 2004, the Treasury Department stated that the investigation of Al-Haramain Oregon showed “direct links between the US branch [of Al-Haramain] and Usama bin Laden”; this was the first public claim of purported links between Al-Haramain Oregon and Osama bin-Laden. ¶¶ 39-40.

That is, al-Haramain has always suggested that the only evidence that got al-Haramain named a terrorist organization in the first place (and, if I’m not mistaken, distinguished al-Haramin Oregon from al-Haramain Saudi Arabia, which was never designated a terrorist organization) was a series of conversations in which people with ties to Osama bin Laden were mentioned. And those conversations are precisely the conversations that, if this decision were accepted, would be declared illegal.

Of course, al-Haramain should have had an opportunity to challenge whether mentioning Osama bin Laden’s brother-in-law and two clerics is enough to get you declared a terrorist organization. But to allow them to do that, DOJ would first have to admit that’s what they’ve based the claim on in the first place. And that would involve turning over interrogation materials that Walker is about to declare illegal. (And, incidentally, it would reveal one of the things the Bush and Obama Administrations wanted to hide behind their State Secrets invocations in the first place, whether or not the government was listening in on those conversations.)

Perhaps the easiest answer to this “dilemma” would be to take al-Haramain Oregon (which, after all, is defunct) off the terrorist list, and give the organization the measly $200,000 the government would owe it with this ruling. But they can’t do that, because it would be an admission of how dicey their claims were in the first place.

In short, like many of the cases against the detainees at Gitmo, the case against al-Haramain is based on illegal evidence that potentially isn’t strong enough to hold up in court in any case. And as with the detainees, deciding the terrorist designation was wrong would involve admitting that the evidence was illegal and/or weak in the first place.

It’s not just that DOJ would have to pay a defunct organization still designated as a terrorist organization. It would have to pay an organization that is only designated as a terrorist organization because it was illegally wiretapped and therefore couldn’t fight the charges against it.

That’s a nifty little dilemma Bush’s illegal counter-terrorism programs have left DOJ with, huh?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Government Continues to Avoid Court Rulings on Domestic Surveillance

Three significant pieces of news, taken together, show that the Courts continue to chip away at Bush-and-now-Obama’s domestic surveillance programs.

FISA Court Encourages Government to Stop Collecting Some Metadata

First, and potentially most importantly, the FISA Court, after learning more about what the collection of telecom metadata entailed, raised some concerns with the government, leading them to voluntarily stop collecting it.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently “got a little bit more of an understanding” about the NSA’s collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court’s concern.

[snip]

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Curiously, Adam Schiff is quoted in the story specifically addressing VOIP.

Al-Haramain Agrees to Vaughn Walker’s Judgment

Next, on Friday, al-Haramain responded to Vaughn Walker’s tidy judgment on FISA–which I have argued was crafted to be rather tempting to the government–by basically accepting his judgment and backing off any further constitutional claims associated with the suit. In their proposed judgment, al-Haramain basically:

  • Asks for the $61,200 in damages defined by the statute ($20,400 for each of three plaintiffs, which comes from $100/day for each day of violation)
  • Asks for $550,800 total in punitive damages ($183,600 for each of three plaintiffs)
  • Asks for legal fees (bmaz estimates these might run to around $3,375,000)
  • Dismisses all other constitutional claims and claims against Robert Mueller as an individual
  • Requests a declaration that “the defendants’ warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA”
  • Requests an order that the government purge all information illegally collected (except that which would be exculpatory)

In short, al-Haramain is basically saying, “gosh what a nifty solution you’ve crafted, Judge Walker. Let’s see what Eric Holder thinks of it.”

Now, the government might have some complaint about the particular description of its illegal wiretapping. And I’m betting they’re going to have operational troubles with purging the illegally collected information, particularly if it means purging a lot of poisoned fruit along with it. But I still do think the government will try to find a way to accept Walker’s nifty solution.

Government Backs Down in Request to Access Stored Emails without Warrant

Finally, in another case in Denver, the government backed down a request that Yahoo turn over the stored emails of one of its customers without a warrant. Yahoo, EFF, and a bunch of other privacy advocates had made a stink, and rather than face an adverse judgment, the government backed down.

In the face of stiff resistance from Yahoo! and a coalition of privacy groups, Internet companies and industry coalitions led by EFF, the U.S. government today backed down from its request that a federal magistrate judge in Denver compel Yahoo! to turn over the contents of a Yahoo! email user’s email account without the government first obtaining a search warrant based on probable cause.

The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!’s opposition to the government’s motion, agreeing with Yahoo! that the government’s warrantless seizure of an email account would violate both federal privacy law and the Fourth Amendment to the Constitution. In response, the Government today filed a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government’s motion.

As EFF points out, the government has repeatedly backed down when challenged on this type of collection and related collection.

This is not the first time the government has evaded court rulings in this area. Most notably, although many federal magistrate judges and district courts have ruled that the government may not conduct real-time cellphone tracking without a warrant, the government has never appealed any of those decisions to a Circuit Court of Appeals, thereby preventing the appeals courts from ruling on the issue. Similarly, a federal magistrate judge in New York, Magistrate Judge Michael H. Dolinger, has twice invited EFF to brief the court on applications by the government to obtain private electronic communications without a warrant, and in each case, the government withdrew its application rather than risk a ruling against it (in one case the government went so far as to file a brief anticipating EFF’s opposition before finally dropping the case).

Which I think illustrates the common theme here. While we don’t yet know what the Obama Administration will do in the case of al-Haramain, in the two other cases, they have backed off of surveillance activities to avoid any adverse ruling from Courts. That’s partly a testament to their discomfort with their own legal position with regards to these activities. But it’s also an indication that they’d rather continue their programs in some lesser form than risk having a Court declare the whole program unconstitutional.

If I’m right about all this, it means the government is balancing facing an Appeals Court on FISA and State Secrets, versus paying less then $4 million to close the chapter on Bush’s most egregious form of domestic surveillance while still protecting executive programs that engage in similar collection.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Why DOJ Is Likely to Accept Vaughn Walker’s Ruling

As I posted earlier, Judge Vaughn Walker ruled against the government in the al-Haramain case today. Basically, Walker ruled that al-Haramain had been illegally wiretapped and the case should move to settlement judgment (corrected per some lawyer).

But there’s more to it. I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won’t get–unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets–is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

There is little risk that other people will sue on the same terms al-Haramain did, because few, if any, other people are going to be able to make the specific prima facie case that they were wiretapped that al-Haramain did. Few people are going to be able to point to public FBI statements and court documents to prove their case, as al-Haramain was able to. And anyone who does sue will end up before Walker, who has dismissed all other suits precisely because they lacked the specific proof that they were wiretapped that al-Haramain had. Plus, with the extent to which Congress has already gutted FISA, there’s little risk someone could sue going forward.

Since Walker dismissed the suit against Mueller, the government doesn’t have any individuals on the hook still for this illegal activity.

And, finally, by accepting this ruling–which argues that only if Congress has provided very specific guidance about court review, will a law automatically trump State Secrets–the government preserves the status quo on State Secrets largely intact (unless and until the full 9th Circuit panel upholds the Jeppesen decision, but I have increasing doubts they will).

So you decide. If you’re President Obama and Attorney General Holder, both of whom have already said that the illegal wiretap program was illegal, which are you going to choose? Accepting a ruling that says it was illegal, in exchange for keeping the details of that illegality secret? Or the invitation to take your chances with an appeal?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Breaking: Judge Walker Grants Summary Judgment Finding Gov’t Liable Under FISA

Short version: al-Haramain wins!

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.

In FISA proceedings, 50 USC § 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.

Walker goes onto explain that, particularly given the government’s refusal to use the means by which Congress dictated that such review should be done, the government has a burden to prove it had a warrant to wiretap al-Haramain–a burden it has not met.

Plaintiffs have made out a prima facie case and defendants have foregone multiple opportunities to show that a warrant existed, including specifically rejecting the method created by Congress for this very purpose. Defendants’ possession of the exclusive knowledge whether or not a FISA warrant was obtained, moreover, creates such grave equitable concerns that defendants must be deemed estopped from arguing that a warrant might have existed or, conversely, must be deemed to have admitted that no warrant existed. The court now determines, in light of all the aforementioned points and the procedural history of this case, that there is no genuine issue of material fact whether a warrant was obtained for the electronic surveillance of plaintiffs. For purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs.

Now, the government did present three reasons why it should not have to present evidence to defend itself. But much of that argument amounts to stating “we disagree with Judge Walker’s decision that FISA trumps State Secrets.” Not surprisingly, then, Walker gets a little snippy when explaining why the government’s arguments about why they shouldn’t have to prove they didn’t wiretap al-Haramain illegally fail.

Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.

[snip]

In an impressive display of argumentative acrobatics, defendants contend, in essence, that the court’s orders of June 3 and June 5, 2009 setting the rules for these cross-motions make FISA inapplicable and that “the Ninth Circuit’s rulings on the privilege assertion therefore control the summary judgment motions now before the Court.” Doc #672/105 at 6. In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin.

And that’s without even looking at Bush’s claim that Congress can’t tell the President he can’t wiretap Americans.

As I said: the government refused to engage on the merits, al-Haramain made a sufficient prima facie case, so the government has basically conceded the case.

[Note, this post has been updated several times.]

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Sotomayor Refuses to Give Government Privilege for Me But Not for Thee

Justice Sonia Sotomayor’s first opinion, released yesterday, is interesting for several reasons. Clarence Thomas was a predictable asshole to her about her opinion. (h/t fatster) It was the first time anyone has used the phrase “undocumented immigrant” in a SCOTUS opinion.

But I’m interested in the Obama Administration’s unsuccessful attempt to get the Court to bail them out of troubles they’re having on national security cases like al-Haramain and Jeppesen.

The case, Mohawk v. Carpenter, concerned whether a District Court’s order allowing discovery that threatened the attorney-client privilege merited an immediate appeal. The Government submitted an amicus brief in the case, basically arguing that it did not. But at the same time, the Government tried to write an exception for itself, arguing that attorney-client privilege should not get to bypass the normal appeals process, but state secrets and presidential communications privileges should.

As noted above (pp. 11-12, supra), the collateral order doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake. This Court has recognized that important governmental interests, principally of constitutional and statutory significance, justify immediate appealability under the collateral order doctrine. See, e.g., Osborn, supra (Westfall Act certification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Helstoski, supra (Speech or Debate Clause immunity). Although the attorney-client privilege does not meet that high bar, privileges such as those protecting Presidential communications and state secrets qualify for such treatment in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.

The Presidential communications privilege, which draws its authority from the constitutional role of the Executive and “can be viewed as a modern derivative of sovereign immunity,” is well established. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (citing Raoul Berger & Abe Krash, Government Immunity from Discovery, 59 Yale L.J. 1451, 1459 n.46 (1950)). “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution,” and it derives largely from the “necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.” United States v. Nixon, 418 U.S. 683, 708 (1974). Unlike the attorney-client privilege (see pp. 15-17, supra), the Presidential communications privilege is invoked relatively rarely and only after authorization of senior Executive Branch officials.

[snip]

In addition to the Presidential communications privilege, this Court has long recognized a state-secrets privilege. That privilege may be invoked to avoid “a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953). The state-secrets privilege, whose origins extend to early Anglo-American law, “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and for eign-affairs responsibilities.” El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007) (emphasis added); cf. Totten v. United States, 92 U.S. 105, 107 (1876) (noting that in comparison to cases involving common-law privileges—including the attorney-client privilege—“[m]uch greater reason exists for the application of the principle [against maintenance of a suit resulting in disclosure of confidential matters] to cases of contract for secret services with the
government”). As a matter of practice, the privilege is invoked by a formal request “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” underscoring its unique significance to the functions of the Executive Branch and the restraints on its invocation. Reynolds, 345 U.S. at 7-8 (footnote omitted). In addition to their paramount “public importance” and “the need for their prompt resolution,” Nixon, 418 U.S. at 687, orders denying the applicability of the Presidential
communications and state-secrets privileges also satisfy the other traditional elements of the Cohen inquiry. First, an order requiring the disclosure of information over the government’s assertion of those privileges would conclusively resolve the issue. The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon. Id. at 692.

Second, neither the Presidential communications privilege nor state-secrets privilege turns on the merits of the action in which they arise, but rather on the nature of the constitutional prerogatives of the Executive Branch. Accordingly, when compared to the attorney client privilege (see pp. 17-21 supra), the governmental privileges are more readily severable from the merits of the underlying case. For example, the question whether disclosure of a state secret would endanger national security or diplomatic efforts is independent of the merits of the underlying action that seeks the disclosure. If information is properly deemed a state secret, then any assessment of the potential merits of the action or the disclosure’s impact on the merits is beside the point—the state secret cannot be divulged regardless. See Reynolds, 345 U.S. at 11 (state-secrets privilege cannot be overcome by “even the most compelling necessity”). The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a “generalized interest in confidentiality,” engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6 [my emphasis]

Now, it’s crystal clear what the Government was trying to do with the state secrets stuff. They were trying to dig themselves out of several holes in the 9th Circuit, by pushing the Court to back their argument that they can appeal an order to disclose evidence anytime a question of state secrets is involved. In particular, if I understand correctly (and please correct me if I’m wrong), this is what the Government tried to do in al-Haramain–appeal Judge Walker’s ruling that al-Haramain’s lawyers could have access to materials on their wiretapping so as to litigate the case.

Note, too, their claim that the Government would never refuse to turn over information after a Judge had ordered them to. Except that was precisely what they seemed to be preparing to do in al-Haramain, not just refusing to turn over information, but to take information already lodged with the Court Security Officer, along with filings that are the property of the Court, away from the Court.

Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.