BREAKING: The 9th Circuit Says State Secrets Can’t Halt al-Haramain Suit

In an unexpected move, the 9th Circuit has rejected the Obama/Dead-Ender attempt to stay the al-Haramain suit against Bush for illegally wiretapping it.

The order is short and sweet:

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

I presume the Obama/Dead-Enders may try to appeal this. But in the interim period, Judge Walker can review the wiretap log and see if–as expected–it proves that the Bush Administration illegally wiretapped al-Haramain’s lawyers. 

Update: here’s the brief from al-Haramain.

Obama’s Two “Ifs” on FISA: Heads I Win, Tails You Lose

Briefs on FISA are coming out in Northern California so fast and furious it’s hard to keep them straight. Just as a reminder there are two main cases:

  • al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
  • Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds

The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama’s interpretation of "if."

Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if’s" (and one "shall") appearing in FISA-related law.

"If" the Attorney General Wants the President to Avoid Penalty for Illegal Wiretapping

Here’s the language Judge Walker just reviewed in FISA 1806(f) in the al-Haramain case:

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. [my emphasis]

The government (under both Bush and Obama) has argued that the "shall" in 1806(f)–requiring the District Court Judge to review in camera and ex parte the materials relating to the surveillance to see if was legal–only kicks in after the "if" tied to the Attorney General in it. That is, the District Court Judge only reviews the underlying materials if the Attorney General files an affidavit saying that an adversary hearing would harm national security.

Judge Walker thinks that’s bullshit. Read more

A Whole Heap of Bad Faith in al-Haramain

The Obama Administration has filed its latest brief in the al-Haramain case. In its effort to shield the Bush Administration from liability for their crimes, it engages in a whole host of bad faith so as to prevent Judge Walker from actually making a determination that the al-Haramain lawyers were illegally spied on.

 As a reminder, Judge Walker’s January 5 order did three things. First, it answered the question the Appeals Court had remanded the case back to Walker to answer: does FISA, which imposes criminal penalties for illegal wiretapping, pre-empt state secrets claims? Walker answered that question in the affirmative: he reasoned that, if Congress passed a law imposing penalties on the executive for breaking the law, the executive couldn’t very well restrict access to the evidence that provides proof that the executive broke the law. Congress wouldn’t have provided for penalties if it didn’t intend for it to be possible to litigate those penalties.

Next, Walker said he would review the wiretap log that proves the government spied on al-Haramain illegally to see whether it proves the government spied on al-Haramain illegally. Very important: he said he would conduct this review in secret!!

Finally, Walker laid the groundwork for talking about how the case would proceed going forward, if, on review of the document proving the government spied on the al-Haramain lawyers illegally, he determined that the government spied on the al-Haramain lawyers illegally (frankly, I think this was a mistake on Walker’s part, but nevermind). Here’s the most important passage in which he does this:

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed —— that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to classified materials, only by placing and maintaining some or all of its future orders in this case under seal may the court avoid indirectly disclosing some aspect of the Sealed Document’s contents. Unless counsel for plaintiffs are granted access to the court’s rulings and, possibly, to at least some of defendants’ classified filings, however, the entire remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs of due process to an extent inconsistent with Congress’s purpose in enacting FISA’s sections 1806(f) and 1810. Read more

Developing Arguments about Classified Information in the al-Haramain Litigation

There have been a number of moves in the al-Haramain suit, some of which I’ll review in more detail when I get back to work in earnest in Monday. But for now, there are three details I wanted to point out that reflect changing ground with regards to classification in the suit, just as the government files an appeal.

The Dead-Enders Admit Walker Didn’t Order Them to Declassify the Wiretap Log

The first comes in this government request for more time to respond to Judge Walker’s order, filed on Friday. In it, the dead-enders reverse a claim they made in January. Yesterday, they said,

In its Order of January 5, 2009, the Court directed the Government Defendants to “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.”

They specifically say that the review includes the stuff at issue in this suit–primarily the wiretap log that shows that al-Haramain was wiretapped illegally.

The Government can report today, as we indicated in a filing made on February 11, 2009, that we expect the relevant information at issue in the privilege assertion to remain classified.

Funny. These same dead-enders claimed, on January 22, that Walker had ordered them to get security clearances for al-Haramain’s lawyers so they could have access to the wiretap log, suggesting Walker had already ordered that access.

Second, the Court has held that due process requires that, for plaintiffs’ counsel to litigate the case, they must obtain security clearances for access to certain classified information, including the heretofore Sealed Document, court orders and possibly the Government’s classified filings in this case. Both holdings raise serious questions of law and would subject the Government to irreparable harm. [my emphasis]

The January 22 claim was a total misrepresentation of Judge Walker’s order, so I’m not surprised that the dead-enders are now asserting that they have simply been ordered to do a review–and (with their assertion that the log remains classified) that they retain ability to determine whether the document is classified or not. But the dead-enders have backed off one of their more egregious claims.

Read more

Obama Again Supports Bush’s Bogus Stance on al-Haramain, But Partly Punts on State Secrets

This time in the al-Haramain case.

The argument in this new filing is substantially the same as they made in January, particularly in their misrepresentation of Judge Walker’s approach to classified information. Once again, they suggest Walker has ordered the wiretap log declassified (though they do so less dishonestly than they did in January), when in fact Walker has ordered the government consider what can be declassified.

The Court then held that it would review, initially ex parte, the Sealed Document that was the subject of the state secrets privilege assertion and will then issue an order regarding a factual question at issue in that privilege assertion— “whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA.” Id. at 23. The Order then adds that fully ex parte proceedings under Section 1806(f) “would deprive plaintiffs of due process to an extent inconsistent with Congress’ purpose in enacting FISA Sections 1806(f) and 1810.” Id. Accordingly, the Order “provides for members of plaintiffs’ litigation team to obtain the security clearances necessary to be able to litigate the case, including, but not limited to, reading and responding to the court’s future orders.” Id. The Court’s Order also “specifically rejected” the Government’s assertion that the Executive branch controls access to classified information, see id. at 21, and held that Section 1806(f) “leaves the court free to order discovery of the materials or other information sought by the ‘aggrieved person’ in whatever manner it deems consistent  with section 1806(f)’s text and purpose.”

That phrase, " initially ex parte," suggests that Walker would definitely review the document openly, when he said no such thing (and only required declassification of government briefs going forward). 

That said, there is a very significant difference. This filing defends the state secrets invocation of the past, arguing that the invocation of state secrets in this case has already been ruled to be proper.

The Court of Appeals has previously determined that plaintiffs’ case cannot proceed without critical information that the state secrets privilege was properly asserted to protect—including whether or not plaintiffs were subject to alleged surveillance and, in particular, the classified sealed document at issue in this case.

 And then it accuses Judge Walker of changing his stance regarding the use of the document.

The Court initially reviewed the allegations in the amended complaint to determine whether the case may proceed to Section 1806(f) proceedings. See Dkt. 57 at 2-8. The Court then considered and rejected the Government’s contention that the public evidence cited in the amended complaint was insufficient to establish plaintiffs’ standing to proceed under Section 1806(f) as “aggrieved persons” subject to the alleged surveillance. See id. at 9. In making this determination, the Court decided an issue held open in its July 2 decision: what the standard would be for determining whether the case could proceed under Section 1806(f), see id. at 10-12 (discussing standard applicable under 18 U.S.C. § 3504), and then decided for the first time that it was sufficient for plaintiffs merely to establish a prima facie case of alleged surveillance, see id. at 13.

The balance of the argument, then, focuses on whether Walker made the correct interpretation that 1806(f) trumped state secrets.

I will need to read closer, but I suspect the resolution of this will depend on how far state secrets extends. Does it prevent a judge from assessing evidence ex parte, which is all Walker has ordered (contrary to the misrepresentations of the government)?

Just as interesting, though, is the shift in this filing away from one of privilege, per se, and toward the legal issues themselves. Sure, Obama is supporting Bush’s crappy stance in al-Haramain. Read more

Some Obama Folks Miffed about al-Haramain

In an article about the anticipated headaches Eric Holder will have once he’s confirmed as Attorney General today, some anonymous Obama figures reveal their thoughts about the last minute al-Haramain filings by Bush dead-enders.

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program. [my emphasis]

None of that, of course, explains what Obama will do once Holder and the rest of his department gets in place. None of it explains why Obama didn’t take a stronger stand when the dead-enders were filing documents in his name. 

But at least some folks in the Obama Administration are watching the dead-enders closely.

al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

Read more

The "Obama" Support for Stay Pending Appeal in al-Haramain

A number of you have emailed to ask about this report–that Obama has supported Bush’s request for a stay pending appeal in the al-Haramain case.

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

Thursday’s filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration’s warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.

"The Government’s position remains that this case should be stayed," the Obama administration wrote (.pdf) in a filing that for the first time made clear the new president was on board with the Bush administration’s reasoning in this case.

On its face, this looks like really horrible news–a spineless attempt on Obama’s part to play along with Bush’s efforts to run out the clock on Bush’s alleged crimes in wiretapping al-Haramain and other Americans. And frankly, this should not be surprising news; Eric Holder said in his confirmation hearing that–unless he finds anything unexpected–he would continue the Bush Administration’s support for retroactive immunity, a case that is also before Judge Vaughn Walker. So it would be unsurprising that the Obama Administration would be cautious in this case as well.

That said, there is some confusion about the whole decision. Here’s the timeline:

January 16: Bush files appeal

January 19: Bush motions for stay pending appeal, informs Walker and al-Haramain of what it is doing

January 20: al Haramain responds, Obama becomes President

January 21: Specter places his one-week hold on Holder’s nomination

January 22:  The "Obama Administration" submits support of Bush motion 

January 23, 10:30 AM PST: Hearing scheduled

As al-Haramain complains in its response, the Bush Administration appears to have deliberately held their appeal until "64 minutes before midnight on the last day of the Bush presidency." Read more

Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.


Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. Read more

The al-Haramain Dates

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

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.)

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. Read more