Eric Holder’s Secrets

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

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

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

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

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

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

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

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

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

Obama and State Secrets

Last night, Obama suggested that his Administration may be in the process of softening their Cheneyesque stance on state secrets.

Q Thank you, Mr. President. During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Now, at one level, this is unsurprising. As I reported last week, Jerry Nadler reported that Eric Holder appeared to agree in principle with Nadler’s efforts to reform state secrets.

But the claim that, "we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up"? That I’ve got limited patience with. True, the Administration did have a bunch of state secrets cases come up right at the beginning of the term. True, many of those came up even before Eric Holder was confirmed.

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Jerrold Nadler: We Must Investigate Torture … and Fix State Secrets

nadler.thumbnail.jpgJane and I had a chat yesterday with Jerrold Nadler (D-NY), the Chair of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, to talk about his call for a special prosecutor to investigate the torture program. Chairman Nadler was clear:  "You don’t have much choice under the law–you have to investigate." The law requires, he explained, that such allegations be investigated. And if warranted, suspected crimes associated with torture must be prosecuted.

Nadler repeated, though, an important point. That the Justice Department, not the White House, must make these decisions. But, since the Department is implicated because of Bybee’s and Yoo’s role in the memos, we should have a Special Prosecutor to conduct the investigation.

As important as are Congressman Nadler’s calls for a special prosecutor, I was just as interested in his discusison about his efforts to introduce some checks on the use of state secrets to avoid prosecution. Nadler has introduced a bill that would introduce a process akin to the CIPA process (used during the Scooter Libby trial), where a judge would review evidence both to determine standing in a case, as well as determine whether substitutions for sensitive national security information could be used to litigate the case.

The bill, Nadler explained, is awaiting a committee hearing. But he is trying to get some support from DOJ for the bill before entering into hearings. Nadler recently met with Attorney General Eric Holder on this and a host of other issues (enemy combatant doctrine, the al-Marri case, warrantless wiretapping, the OPR investigation, as well as the torture memos). And, Nadler says, Holder seemed to agree to the principle, at least, of having some kind of CIPA-like process to state secrets.

Ultimately, Nadler contends (absolutely correctly, IMO), that the government should not be able to dismiss a suit by withholding evidence under state secrets. 

Between the Jeppesen Dataplan suit, the Binyam Mohammed suit, al-Haramain and all the rest of the warrantless wiretapping suits, preventing the government from demanding dismissal of a suit because of state secrets would go a long way to ensuring accountability when the government breaks the law. 

Did Holder Know About the “Significant Misconduct” When DOJ Claimed Sovereign Immunity?

On April 3, DOJ submitted a filing that argued that no citizen had the ability to sue if she had been wrongly wiretapped under Bush’s illegal wiretap program. The government, DOJ claimed, had sovereign immunity that protected it from such suits.

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States.

Today, just 11 days later, we learn that,

As part of [presumably Glenn Fine’s  Inspector General] investigation [into the warrantless wiretap program], a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

So when Eric Holder’s DOJ made expansive claims arguing that no one could sue federal employees for being wrongly wiretapped under Bush’s illegal program, did he know this revelation from Glenn Fine’s investigation into the wiretapping program? When DOJ claimed sovreign immunity, were they thinking not so much of the Jewel plaintiffs, whose claim was focused on the dragnet collection of US person data, but of the Americans targeted in what Glenn Fine’s office considers "significant misconduct"?

Because if Holder did know (and the timing suggests it is quite likely he did), it makes those cynical claims of sovereign immunity all the more disturbing.

Fine’s investigation will contribute to the larger FAA-mandated Inspector General’s for which there is a presumption of openness. In other words, even if this hadn’t been leaked now, in April, it is supposed to be published in unclassified form in July. Read more

Lichtblau and Risen Report Illegal Wiretapping of Americans … Again

It’s pretty pathetic that, three years after they first broke the story of the Bush’s illegal wiretap program, Eric Lichtblau and James Risen are still reporting on illegal warrantless wiretapping of Americans.

Their story has two main revelations. First, in preparation for Holder’s first semi-annual certification of the FISA program to the FISC, NSA realized it was not complying with the law.

In recent weeks, the eavesdropping agency notified members of the congressional intelligence committees that it has encountered operational and legal problems in complying with the new wiretapping law, according to congressional officials .

Officials would not discuss details of the over-collection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s inability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mails.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority.

Sort of funny how this illegal collection wasn’t discovered six months ago, while Bush was still in charge, huh?

From the sounds of things, though, this was not just a technical violation–it flouted the few protections included in the FISA Amendment Act for civil liberties (which almost certainly means minimization, because there aren’t many other civil liberties protections in FAA). 

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the N.S.A. had ignored civil liberties safeguards built into last year’s wiretapping law.

In addition to these ongoing violations of Americans’ privacy, the ongoing Inspector General investigation has discovered more troubling incidents when the warrantless wiretapping program was deliberately used under Bush to target–among other people–a Congressman traveling overseas.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, according to a U.S. intelligence official with direct knowledge of the matter.

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Holder Wants to Stop Playing Mukasey’s Whack-a-Mole with Financial Fraud

Last June, at a time when it was clear the shitpile was a big fraud but before the perpetrators had destroyed the evidence, Michael Mukasey decided he’d rather play whack-a-mole with financial crime than pursuing it at a national level.

For some reason, Michael Mukasey doesn’t want to investigate and prosecute mortgage fraud using a comprehensive, centralized approach.

Attorney General Michael B. Mukasey rejected on Thursday the idea of creating a national task force to combat the country’s mortgage fraud crisis, calling the problem a localized one akin to “white-collar street crimes.”

Mr. Mukasey made clear that he saw the mortgage fraud problem at the root of the nation’s housing crisis as a serious one. But he said he was confident that the Justice Department’s current approach — using local prosecutors’ offices around the country to oversee separate F.B.I. investigations — was adequate.

Eric Holder doesn’t think that was such a good idea (via TPMM). 

Mr. Holder said the Justice Department is planning a new initiative to bring together federal and state prosecutors in combating financial fraud and white-collar crime.

"We will be working with them to come up with a way to deal with these fraud problems and white-collar problems. The federal government can’t do this alone," Mr. Holder said.


One change is likely to involve a task force on financial crime, akin to one that was organized during the Bush administration following the collapse of Enron Corp.

Mr. Holder’s predecessor in the Bush administration, Michael Mukasey, was disinclined generally to set up task forces because he thought they could be inefficient. He studied the idea of a national task force to focus on fraud and the mortgage crisis but decided against it because he said the crisis differed in various parts of the country.

Mr. Holder disagreed on the effectiveness of a national strategy and said an official announcement would be coming soon. "Based on my experience, I know that task forces work," he said, adding that state prosecutors have expertise on financial fraud that could benefit the federal government.

Gosh. What a novel idea. Investigating the "too big to fail" criminals at a level that’s almost as big as the crime.

And perhaps someday we’ll learn why Mukasey was so disinclined to focus federal attention on the shitpile just as it was about to collapse.

The al-Haramain Stall Timeline

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.

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Obama’s FISA Headache

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]


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.

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Scott Shane’s Love Affair for Dick Cheney and Kit Bond

The NYT’s Scott Shane presents what pretends to be a comprehensive review of the options for some kind of investigation into Bush era crimes. He reviews four options–a criminal investigation akin to Lawrence Walsh’s Iran-Contra investigation, a congressional investigation akin to the Church Committee, a bipartisan investigation akin to the 9/11 Commission, and nothing aside from currently investigations like the OPR review of Yoo’s and Bradbury’s advocacy on torture.

But there are two very disturbing aspects to his story. 

First, in a review of options for holding what we all know to be Dick Cheney responsible for shredding the Constitution, why would you present such a selective picture of Dick’s own history with efforts to hold Presidents responsible for violating the law?

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.


But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

Shane’s claims about Cheney’s views are odd. He bases his characterization on no quote from Cheney, though many are readily available. And his first description–the claim that Cheney’s "precise view" of the Church Committee was that it was really about an "unseemly and dangerous drive to pillory the [Nixon?] administration and hamstring the intelligence agencies"–seems to contradict his later more accurate claim that Cheney believed the Church committee improperly constrained Presidential powers. Which is it? A personalized attack against one administration and the targeting of intelligence professionals or an attack on Presidential power? Or is Shane suggesting that Cheney’s view of any investigation now would be an attempt to pillory the Bush/Cheney Administration, which is a different stance than his prior position regarding investigations of Presidents?

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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