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Again on the al-Haramain Stuff

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The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.

No.

As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

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The Statute of Limitations on Bush’s March 11, 2004 Illegal Wiretapping Expires Today

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Five years ago today, Andy Card and Alberto Gonzales rushed to John Ashcroft’s ICU room to try to trick him into signing the re-authorization for George Bush’s illegal wiretap program over Jim Comey’s objections. Jim Comey arrived at the hospital in time to prevent Card and Gonzales from succeeding.

Five years ago tomorrow, George Bush re-authorized his illegal wiretap program with only the signature of Alberto Gonzales–then White House Counsel–to give it legal sanction.

Five years ago today and tomorrow, attorney Wendell Belew spoke to al-Haramain Director Soliman al-Buthi by telephone. Belew has reason to believe–and once had clear evidence that may have proved–those calls were wiretapped under Bush’s illegal wiretap program.

As bmaz explained last year, in March 2004, FISA had a standard 5-year statute of limitation.

The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test.

That means that the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.

Now, as it happens, a District Court Judge may have or may be about to judge whether or not that wiretapping was illegal. I’m referring, of course, to the al-Haramain suit currently before Vaughn Walker. The last known development in that suit came eleven days ago, when the 9th Circuit ruled that Walker should review the wiretap log to determine whether it shows that al-Haramain is an aggrieved party (meaning they were wiretapped illegally), and when the Obama Administration corrected "inaccurate" information on the wiretap program probably submitted three years ago. Since then, nothing has appeared in the docket for the case.

The absence of any activity in the docket could mean one of two things. Read more →

Not Seeing Storm Troopers, Not Scratching My Head

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David Kravets suggests that everyone talking about the Cheneyesque brief DOJ submitted in the al-Haramain suit last Friday has been scratching their heads.

Legal scholars, the blogopshere and the twitterati have been scratching their heads for a week following the Obama administration’s assertion that it might "withdraw" (.pdf) classified documents at the center of a closely watched spy case.

Some are wondering whether the feds will use storm-trooper-like tactics to remove the data from the case. 

Just for the record, I am not scratching my head. Nor am I, for that matter, seeing storm troopers.

As a reminder (I’ve already laid this out here for the head scratchers), here is what happened.

  1. The Ninth Circuit refused the Administration appeal of Judge Walker’s ruling that he should review the wiretap log to see if it shows al-Haramain has standing (meaning that Bush broke the law). This set up the next step, which is that Walker would review the document, which is where we’re at now.
  2. Faced with the prospect of a judge looking at the representations the Bush Administration made about the program three years ago, DOJ first said, "please don’t disclose anything without checking with us first." (Okay, admittedly they said this using Cheneyesque language.)
  3. Then, they confessed that Bush had lied submitted inaccurate information  and presumably (in the form of four declarations, three of them from the people who first described this program to the Court) corrected that inaccuracy.

Now, keep a  few things in mind. First, with the declarations submitted on Friday, there is presumably a somewhat detailed and maybe even accurate description of the warrantless wiretap program (as well as a description of how Bush lied submitted inaccurate information) in the hands of Judge Walker.

Second, DOJ has claimed (though not proven the case) that al-Haramain has ties to terrorist organizations. I don’t know whether this is true or not, whether they believe this or not, or whether this is just residual fear-mongering left over from the Bush Administration, but for the sake of argument, let’s pretend that at least some of the people involved believe that al-Haramain has ties to al Qaeda.

DOJ is now faced with the prospect that because someone fucked up by handing al-Haramain something they didn’t mean it to have, they are about to enter into legal proceedings that might result in al-Haramain’s lawyers, almost alone of anyone in the US, seeing the details of the warrentless wiretap program. Read more →

The Secret State Continues to Crumble

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In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

Correcting the Confused al-Haramain Reporting

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I’ve gotten so many links to really confused reporting on what happened in the al-Haramain case on Friday (see here, here, and here, for starters), that I’m going to take the trouble of trying to correct it.

But before I do that, to those perpetuating these confused reports, let me say this:

You guys have all totally missed the plot!!

You have gotten completely distracted by utterly predictable squabbling about how this will move forward.

You have missed the fact that DOJ just admitted that Bush lied provided “inaccurate” information to the Courts, and that DOJ has just submitted new material that presumably corrects that lie “inaccurate” information.

Shew. Sorry about that.

Now the confusion in question stems from the way Judge Walker wrote his January 5 order, which basically said two things. It:

  1. Ruled that he–Judge Walker–would read the secret material in question and decide whether al-Haramain was an aggrieved party (and therefore whether Bush broke the law).
  2. Ruled that the government should take the first steps (doing a classification review and getting al-Haramain’s lawyers a security clearance) of addressing how to move forward with this case given the classified nature of the information involved.

I wish Walker hadn’t written his ruling like that, because it caused the opportunity for this confusion, but since I’m not a federal judge, I can’t do much about that.

But note: Walker did not rule that the government had to give al-Haramain any classified information.

Unfortunately, the two sides focused their briefing on the confusing, second, aspect of Walker’s ruling. Al-Haramain, for some very good tactical reasons, said,

Judge Walker can order you to give us this classified information.

Judge Walker can decide we have the “need to know” and as a result grant us security clearances.

And DOJ, for some very good tactical but ethically suspect reasons, then pretended that Judge Walker had said what, in fact, only al-Haramain had said.

Judge Walker did order us to give al-Haramain this classified information.

Judge Walker did order that he can decide that al-Haramain has the “need to know.”

Now, as it turns out, DOJ had a secret.

Back on (probably) May 12, 2006, when the government told Garr King (the judge who had this before Walker) what they had been doing with al-Haramain, they provided “inaccurate” information. I suspect they only told King about part of what they were doing to al-Haramain, probably leaving out details about data mining and earlier wiretapping and laundering poison fruit to get warrants. And during this whole back-and-forth in the last two months, DOJ knew that. Read more →

Retroactive Immunity for the Banksters, Too?

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On October 18, 2007, the Senate Intelligence Committee passed the first version of a bill that would grant corporations retroactive immunity for helping Bush spy on Americans.

The Senate intelligence committee yesterday produced a new bipartisan bill governing foreign intelligence surveillance conducted inside the United States, but objections by several Democratic lawmakers to some of its provisions raised questions about how quickly it might gain passage.

[snip]

It would further give some telecommunications companies immunity from about 40 pending lawsuits that charge them with violating Americans’ privacy and constitutional rights by aiding a Bush administration’s warrantless surveillance program instituted after September 2001. That provision is a key concession to the administration and companies, which lobbied heavily for the provision. 

On October 22, 2007, right in the middle of the larger debate about retroactive immunity, FBI Deputy Director John Pistole gave a pep talk at a money laundering conference, cheering the work bankers had done to help pursue terrorists. He described the pattern analysis FBI was doing on financial transactions.

We established a specialized section in our Counterterrorism Division called the Terrorism Financing Operations Section, or TFOS. 

The mission of our agents and analysts in TFOS is to trace transactions and track patterns.  This painstaking work helps us identify, disrupt, and prosecute terrorists, their associates, their leaders, and their assets. 

Read more →

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

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

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

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

How al-Haramain Got Declared a Terrorist Organization

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

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

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

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

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

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

The al-Haramain Stall Timeline

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

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

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

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

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

January 13, 2009: Eisenberg emails Coppolino a plan.

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

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

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

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

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

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

January 20, 2009: Obama inaugurated President.

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

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

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

Read more →

Did Bush Lie to Vaughn Walker?

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

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

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

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

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

But this is:

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

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

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

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

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

Obama’s FISA Headache

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

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

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

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

Al-Haramain’s Dates

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

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

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

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

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

Hahahahahahaha!!!

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11.

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

Read more →