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Obama DOJ Continues To FlimFlam Judge Lamberth On State Secrets

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The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out Read more →

Dennis Blair’s Not Going to Touch Bush’s “Inaccuracies”

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Fresh off his fishing vacation break from retirement, MadDog found this declaration that Dennis Blair submitted in the al-Haramain case affirming that the documents correcting Bush’s inaccuracy are, themselves, classified.

There’s a really fascinating paragraph in that document:

I have reviewed the public and In Camera, Ex Parte Declarations of then-DNI Negroponte lodged in June 2006; the public and In Camera, Ex Parte Declarations of Lieutenant General Keith B. Alexander, Director of the National Security Agency, also lodged in June 2006; the public Declaration of John F. Hackett of the Office of Director of National Intelligence submitted in May 2006; and a copy of the classified "Sealed Document" that I understand was inadvertently disclosed to the plaintiffs and then lodged with the Court at the outset of this case. I have also reviewed the public and classified declarations submitted in February 2009 in connection with the declassification review ordered by the Court. This includes the public and classified declarations or John F. Hackett of the Office of Director of National Intelligence submitted on February 27, 2009; the public and classified declarations of Joseph J. Brand of the National Security Agency submitted on February 27, 2009; the classified Declaration of Anthony J. Coppolino, Department of Justice, Civil Division; and the classified Declaration of Andrea M. Gacki, Department of the Treasury, Office of Foreign Assets Control. [my emphasis]

To summarize, here’s what Blair said he had reviewed:

  • Public and classified Negroponte declarations, June 2006
  • Public and classified Alexander declaration, June 2006
  • Public Hackett declaration, May 2006
  • Sealed Document (the wiretap log)
  • Public and classified Hackett declarations, February 2009
  • Public and classified Brand declarations, February 2009
  • Classified Coppolino declaration, February 2009
  • Classified Gacki declaration, February 2009

See what’s missing?

Blair reviewed Hackett’s public declaration from May 12, 2006–but not his classified one. Nor did he review Coppolino’s or Gacki’s classified declarations from the same date. [Correction: I was working from memory–only Hackett submitted a declaration in May 2006. Update: I’m reviewing the language about this declaration from 2006, and they don’t say Hackett authored it (lots of the use of passive throughout), though it appears to come from ODNI, so Hackett.]

Back in March, I suggested that this classified declaration was the source of the "inaccuracy" that needed to be corrected before Judge Walker reviewed the record.

On May 12, 2006, in response to the judge’s skepticism that the document and a subsequent government filing needed to be handled ex parte, DOJ submitted superseding ex parte in camera material, and filed a motion opposing efforts to unseal these documents. 

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The Royce Lamberth-Vaughn Walker Golf Match

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Call me crazy. But reading yesterday’s Royce Lamberth opinion on the Richard Horn case (see bmaz’ post for background) makes me think that Lamberth–Chief Judge for the DC District–and Vaughn Walker–Chief Judge for the 9th District–have been playing golf together recently at some Chief Judges August retreat or something. Because Lamberth’s opinion could have been written by Walker in the al-Haramain case, except of course the underlying facts–but not the Obama Administration’s legal stance–are totally different.

Here are the similarities:

Appeals Court Ruling in Favor of State Secrets Set Aside

In both cases, the Appeals Court in question at least partly ruled in favor of the government’s State Secrets invocation only to have something set that aside. In the Horn case, it was the discovery that the CIA had been lying its ass off in its declarations for years. In the al-Haramain case, it was Walker’s ruling that FISA trumped State Secrets.

This is of course the biggest difference between the underlying facts: the Appeals Court has already substantially rejected the State Secrets invocation in this particular case, whereas in al-Haramain, a statute has (at least for now) been ruled to set aside the State Secrets invocation. But the practical result is the same: the government is still, functionally, insisting on treating the litigation as if State Secrets still held and with that stance, basically arguing that executive authority over classification and secrecy trumps separation of powers. 

Government Refusal to Acknowledge a Court Ruling

In order to proceed as if the State Secrets claim still held in each case, the government is simply proceeding as if the Court judgments have no authority. In al-Haramain, the government repeatedly refused to acknowledge Walker’s decision that FISA did trump State Secrets, continuing on as if it still could protect all the information in the suit. In so doing, it was basically trying to negate the very idea that FISA restricted executive branch actions.

In Horn, the government is trying to claim privilege to prevent the plaintiff from making even a circumstantial case that the government illegally wiretapped him.

Notably, the government’s protective order, supposedly based on the assertions of privilege by Director Panetta, would not even allow the plaintiff to build a circumstantial case that U.S. Government eavesdropping equipment was used to eavesdrop on him, because the protective order would prohibit the plaintiff even from making this argument.

[snip]

The government’s interpretation of Panetta’s assertion of the privilege, if sustained, would eviscerate the Court of Appeals decision that the very subject matter of Horn’s action is not a state secret.

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Obama DOJ Asks Full Panel to Review Jeppesen

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When the al-Haramain hearing last week turned to questions of next steps, DOJ’s Anthony Coppolino played for time.

 THE COURT: All right. What I would suggest is a — and I’m going to ask the clerk to backstop me here. We have a special setting for hearing this motion — we  could hear it on the — How’s the 5th of August?

(Attorney Coppolino shaking his head.)

THE COURT: Mr. Coppolino says no.

MR. COPPOLINO: Well, really, the first two weeks of August are quite bad for me. I was going to suggest, perhaps, the first Thursday that I could do; it would be the 20th.

THE COURT: Doesn’t have to be on a Thursday unless we have to work around a trial.

MR. COPPOLINO: Okay. My preference would be the 28th or 21st. Looks like you are not available the following week, at least according to that calendar (pointing), at least.

THE CLERK: That’s correct.

MR. COPPOLINO: So I would ask the Court, if it’s possible, and depending on Mr. Eisenberg’s schedule, no sooner than, say, the 21st or then after Labor Day.

MR. EISENBERG: Your Honor, I’m going to be mired in work throughout July and August; it doesn’t matter to me what date you choose. It’s going to be a tough summer; I’m prepared to deal with that.

THE COURT: All right.

MR. COPPOLINO: Plus, you need to build in time for his reply because if he files on the 30th, I would need July because we have the Jewel hearing on the 15th. So I think I need at least the end of July — he gets to reply, if it’s his motion, so I think, unfortunately, if it’s okay, we are into September.

THE COURT: What does September 2 look like?

I suspect that when Coppolino pushed al-Haramain out into September, he knew this was coming (from an ACLU press release).

The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court’s full panel of judges to rehear that decision.

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The Government Dodges and Weaves on al-Haramain

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While I agree with bmaz that the government response in al-Haramain repeats a lot of tired arguments, I’m utterly fascinated by the dodging and weaving they do to try to persuade Vaughn Walker not to impose sanctions on them. I’m fairly sure that Anthony Coppolino (the government lawyer in this) ended up canceling his Memorial Day plans last weekend and has been working on this dance ever since.

Before I explain why, understand the challenge. Normally, when the government invokes state secrets, the evidence in question is just removed from the case, as if it didn’t exist. Walker has ruled that FISA trumps state secrets, and so he can review the evidence to see whether al-Haramain was illegally surveilled; he has also said that to proceed in the case, al-Haramain must have a means–via access to (at a minimum) Walker’s rulings and possibly also the wiretap log and the government’s declarations–to litigate the suit. But the government maintains the al-Haramain lawyers absolutely cannot see those documents. So Walker, last week, proposed just skipping the tedious litigation step, and just declaring that the government could not oppose al-Haramain’s claim it had been illegally wiretapped, and proceeding to the penalty phase (mind you, as bmaz has pointed out, that’d involve other discovery claims, but let’s put those aside for the moment). This filing is the government’s attempt to continue to claim state secrets, even in a crime that Congress has specifically prohibited.

The government starts by focusing attention exclusively on whether it should be sanctioned for refusing al-Haramain’s lawyers access to the documents in this case, and away from whether it should be sanctioned for illegally wiretapping al-Haramain. And it pretends that it has not ignored Walker’s order that they at least propose some way to litigate this.

The Government regrets that the Court has now suggested that actions it has taken in this litigation may warrant sanctions. We respectfully but firmly disagree. As set forth more fully below, the imposition of discovery sanctions would be unjustified because the Government has not violated any Court order or otherwise acted in a manner warranting sanctions. The Government has merely declined voluntarily to agree to a protective order that would, in the Government’s view, require disclosures that would irretrievably compromise important national security interests. That conduct cannot be a basis for sanctions.

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Breaking! Judge Walker Gets Ready to Penalize the Government in al-Haramain

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Judge Walker appears to have lost his patience with the government’s obstinance in al-Haramain.

He just gave the government one week to explain why he shouldn’t just rule in al-Haramain’s favor and impose penalties.

As the court understands the situation:

1. The United States has completed suitability determinations for two of plaintiffs’ attorneys and found them suitable for TS/SCI clearances, but government officials in one or more defendant agencies, including the NSA Director (Doc #626/89 at 16), are refusing to cooperate with the court’s orders because, they assert, plaintiffs’ attorneys do not “need to know” the information that the court has determined they do need to know.

2. Defendants have refused to agree to any terms of the protective order proposed by plaintiffs and have refused to propose one of their own. Doc #626/89 at 35.

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders:

(1) defendants should not be prohibited, under FRCP 37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

(2) the court should not deem liability under 50 USC § 1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

Defendants shall submit written response to this order no later than May 29, 2009.

All good questions, Judge Walker. 

I rather suspect the Administration would prefer just to pay damages than to go forward with this (particularly with Judge Walker in such a peeved mood). But if Walker rules in al-Haramain’s favor, what does that do for the retroactive immunity case?

The Data Mining Secrets and al-Haramain

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There’s a footnote in the latest al-Haramain filing that deserves further attention. It suggests the government continues to try to shield information on its larger wiretapping program by treating different aspects of it as separate programs entirely.

The Filing Refers to "TSP" Surveillance and Surveillance "Pursuant to Other Authorities"

Amidst the passage complaining (rightly, to a point) that al-Haramain’s proposed protection order would give it access to "all information" the government held on the charity, it footnotes a discussion of the submissions included as part of its state secrets assertion.

Similarly, paragraph 25 of plaintiffs’ proposed protective order, which addresses counsel’s “need to know” classified information, is also fundamentally flawed. This proposed provision states: “A plaintiff’s counsel is presumed to have a ‘need to know’ all the information in the government’s possession concerning the plaintiffs whom that counsel represents.” See Pls. Proposed Order ¶ 25. Not only is this among the central issues in dispute in this case, as noted above, but, under this provision, plaintiffs would be presumed to have a “need to know” any and all classified information “concerning” plaintiffs. This could include all information concerning the Al-Haramain Islamic Foundation of Oregon—a designated global terrorist organization—as well as the information at issue in the Government’s state secrets privilege assertion filed in this case, to the extent those submissions are deemed to “concern” the plaintiffs.6/ Plaintiffs would thus transform the inadvertent disclosure of a single document—which itself was subsequently excluded in this case by the Ninth Circuit—into a presumption entitling them to all information that may exist concerning them. Plaintiffs’ response below does not recede from this sweeping demand for access. [my emphasis]

The footnote reads,

6. The Government’s state secrets privilege assertion applies to a range of information beyond the sealed document, including whether or not the plaintiffs were subject to alleged surveillance not only on the Terrorist Surveillance Program challenged in this case, but pursuant to any other authority not at issue here, as well as information concerning the TSP, and the al Qaeda threat. See Public Declaration of John D. Negroponte. [my emphasis]

The Government Doesn’t Want to Hand Over the New Filings

These two passages suggest several things. First, from a very practical perspective, they show the government is panicking over having to release the classified submissions the government itself submitted in this case, much more than they’re panicking over having to (re)release the wiretap log that, after all, al-Haramain has already seen. I’ll remind you that these submissions are probably the same submissions that the Obama administration had to correct. Read more →

The Latest al-Haramain Filing

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First, let me say that the breathless reporting on the latest al-Haramain filing is totally overblown. As I said when Judge Walker ordered the al-Haramain and government  to attempt to come up with a protective order under which the case can proceed, it was always unlikely that they would be able to do so.

The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work.

Guess what? This latest is, as expected, a continuation of the same squabble that the parties have been engaged in since January 5. Yes, the government continues to insist Walker’s January 5 ruling–that FISA trumps state secrets–is wrong. But the al-Haramain lawyers are also pulling some fast ones with their submission. Which suggests that Walker is going to have to finally rule one way or another on what access al-Haramain should have, the government will try to appeal, and we’ll be waiting on the 9th Circuit again.

Walker’s Order and al-Haramain’s Response

Back on April 17, Judge Walker pointed to a protective order being used in the Gitmo habeas petition cases, suggesting that the parties here adopt a similar protective order. So al-Haramain, appearing to follow Walker’s order to a T, did just that, submitted a protective order based on the Gitmo one.

But, as the government fairly pointed out, al-Haramain made some key changes in the order. First, whereas the Gitmo order allowed the government to refuse to disclose information and, ultimately, to release a detainee rather than disclose that information, the al-Haramain proposed order gave the government no such way to refuse to disclose information.

Plaintiffs’ proposed order also deletes another sentence from paragraph 49(b) of the Guantanamo order which states that: “Nothing herein prohibits the government from submitting classified information to the Court in camera or ex parte in these proceedings or entitles petitioners or petitioners’ counsel access to such submissions or information.” See id. Elimination of this provision would further foreclose the Government’s authority to control the use and disclosure of classified information in this case.

(Al-Haramain, incidentally, simply replaces this passage with a phrase not limiting government "remedial action" if information does get leaked, which if they were willing to go to jail to liberate information on the warrantless wiretap program would pretty much expose the program in its entirety.) Read more →

The Latest State Secrets Claim

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

Three Interlocking Cases

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

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

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

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

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“Reasonable grounds to conclude”

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

Here they are:

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

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

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

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

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

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

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

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

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

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

And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." Read more →