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Beautiful Equality Comes To Marriages In America

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Screen Shot 2015-06-26 at 8.10.49 AMLove will find a way, and it finally has. There are many, many friends I am thinking of right now, and they all know exactly who they are. Congratulations, and it was far too long coming. Here is the opinion.

EQUALITY

There is so much to say, that it is hard to know what to actually say. There are many quotes like this one, but it is indicative of the decision:

“laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

What I don’t find in the majority decision, as wonderful as it is, is discussion of heightened scrutiny, strict scrutiny, or other clear cut, across the board protection for the status of sexual identity. And that is disappointing. Also why I cried bit when SCOTUS, two years ago to this very day, callously refused to take the incredibly wonderful tee shot that Vaughn Walker gave them in the Proposition 8 case previously.

I guess the handwriting was on the wall when even the old liberal lion Steve Reinhardt, a man I have met, and a judge I truly love and revere, pulled up short and did not have the balls to take the root concept of sexual identity “equality” where it naturally flowed when he had the pen in his wise hand. But he didn’t then, and his old friend Tony Kennedy has not today.

So, while there is so much to cheer right this moment, we, and this country, are still far from where we need to be with regard to inclusion of all our citizens in the concept of equality. It is more than black and white, it is straight, gay and trans too. We are all on this patch of earth together, and we all are equal, and that needs to be admitted legally by the highest court in the land and understood by all the people it serves.

So, there are still miles to be traveled. Let the four, count them four, spittle laced, bigoted, backwards, and disgusting dissents in the Obergefell decision speak for themselves. Honestly, they make me want to puke. For all that were celebrating the enlightened liberal thought of Chief Justice John G. Roberts yesterday, today is a rough reminder of who and what he really is. And you really have to read Scalia and Alito to understand the fucked up pathology of the dissenters. Wow.

The Last Time NSA Submitted Secret Authorities, It Was Actively Hiding Illegal Wiretapping

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Via Mike Masnick, I see that in addition to submitting a new state secrets declaration and a filing claiming EFF’s clients in Jewel v. NSA don’t have standing, the government also submitted a secret supplemental brief on its statement of authorities, which EFF has challenged.

The secret supplemental brief is interesting given the government’s outrageous state secrets claim in the lawsuit against United Against a Nuclear Iran, in which it refuses to explain why it must protect the intelligence sources and methods of an allegedly independent NGO. It seems the government’s state secrets claims are getting even more outrageous than they already were.

That’s particularly interesting given what appears to be the outlines of a claim that if the court recognizes Jewel’s standing, then all hell will break loose.

Due to the failings of Plaintiffs’ evidence described above, the Court need not consider the impact of the state secrets privilege on the standing issue. However, if the Court were to find Plaintiffs’ declarations admissible and sufficiently probative of Plaintiffs’ standing to raise a genuine issue meriting further inquiry (which it should not), adjudication f the standing issue could not proceed without risking exceptionally grave damage to national security (a threshold issue on which the Court requested briefing). That is so because operational details of Upstream collection that are subject to the DNI’s assertion of the state secrets privilege in this case are necessary to address Plaintiffs’ theory of standing. The Government presented this evidence to the Court in the DNI’s and NSA’s classified declarations of December 20, 2013, and supplements it with the Classified Declaration of Miriam P., NSA, submitted in camera, ex parte, herewith. Disclosure of this evidence would risk informing our Nation’s adversaries of the operational details of the NSA’s Upstream collection, including the identities of electronic-communications-service providers assisting with Upstream collection.

Behind these claims of grave harm are the reality that if US persons started to get standing under the dragnet, then under John Bates’ rules (in which illegal wiretapping is only illegal if the government knows US persons are targeted), the entire program would become illegal. So I suspect the government is ultimately arguing that Jewel can’t have standing because it would make the entire program illegal (which is sort of the point!).

But the biggest reason I’m intrigued by the government’s sneaky filing is because of what happened the last time it submitted such a sneaky filing.

I laid out in this post how a state secrets filing submitted in EFF’s related Shubert lawsuit by Keith Alexander on October 30, 2009 demonstrably lied. Go back and read it–it’s a good one. A lot of what I show involves Alexander downplaying the extent of the phone dragnet problems.

But we now know more about how much more Alexander was downplaying in that declaration.

As I show in this working thread, it is virtually certain that on September 30, 2009, Reggie Walton signed this order, effectively shutting down the Internet dragnet (I’m just now noticing that ODNI did not — as it has with the other FISC dragnet orders — release a copy with the timestamp that goes on all of these orders, which means we can’t determine what time of the day this was signed). Some time in the weeks before October 30, DOJ had submitted this notice, admitting that NSA had been violating the limits on “metadata” collection from the very start, effectively meaning it had been collecting content in the US for 5 years.

Precisely the kind of illegal dragnet Virginia Shubert was suing the government to prevent.

Mind you, there are hints of NSA’s Internet dragnet violations in Alexander’s declaration. In ¶59, Alexander says of the dragnet, “The FISC Telephone Business Records Order was most recently reauthorized on September 3, 2009, with authority continuing until October 30, 2009” (Walton signed the October 30, 2009 phone dragnet order around 2:30 ET, which would be 11:30 in NDCA where this declaration was filed). In ¶58, he says, “The FISC Pen Register Order was most recently reauthorized on [redacted], 2009, and requires continued assistance by the providers through [redacted] 2009” (this is a longer redaction than October 30 would take up, so it may reflect the 5PM shutdown Walton had imposed). So it may be that one of the redacted passages in Alexander’s declaration admitted that FISC had ordered the Internet dragnet shut down.

In addition, footnote 24 is quite long (note it carries onto a second page); particularly given that the tense used to describe the dragnets in the referenced paragraph differ (the Internet dragnet is in the past tense, the phone dragnet is in the present tense), it is possible Alexander admitted to both the compliance violation and that NSA had “voluntarily” stopped querying the dragnet data.

Further, in his later discussions, he refers to this data as “non-content metadata” and “records about communication transactions,” which may reflect a tacit (or prior) acknowledgment that the NSA had been collecting more than what, to the telecoms who were providing it, was legally metadata, or, if you will, was in fact “content as metadata.”

To the extent that the plaintiffs “dragnet” allegations also implicate other NSA activities, such as the bulk collection of non-content communications meta data or the collection of communications records, see, e.g., Amended Compl ¶58, addressing their assertions would require disclosure of NSA sources and methods that would cause exceptionally grave harm to national security.

[snip]

Accordingly, adjudication of plaintiffs’ allegations concerning the collection of non-content meta data and records about communication transactions would risk or require disclosure of critical NSA sources and methods for [redacted] contacts of terrorist communications as well as the existence of current NSA activities under FISC Orders. Despite media speculation about those activities, official confirmation and disclosure of the NSA’s bulk collection and targeted analysis of telephony meta data would confirm to all of our foreign adversaries [redacted] the existence of these critical intelligence capabilities and thereby severely undermine NSA’s ability to gather information concerning terrorist connections and cause exceptionally grave harm to national security.

So it seems that Alexander provided some glimpse to Vaughn Walker of the troubles with the Internet dragnet program. So when after several long paragraphs describing the phone dragnet problems (making no mention even of the related Internet dragnet ones), Alexander promised to work with the FISC on the phone dragnet “and other compliance issues,” he likely invoked an earlier reference to the far more egregious Internet dragnet ones.

NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.

I find it tremendously telling how closely Alexander ties the violations themselves to the state secrets invocation.

The thing is, at this point in the litigation, the only honest thing to submit would have been a declaration stating, “Judge Walker? It turns out we’ve just alerted the FISC that we’ve been doing precisely what the plaintiffs in this case have accused of us — we’ve been doing it, in fact, for 5 years.” An honest declaration would have amounted to concession of the suit.

But it didn’t.

And that state secrets declaration, like the one the government submitted at the end of September, was accompanied by a secret statement of authorities, a document that (unless I’m mistaken) is among the very few that the government hasn’t released to EFF.

Which is why I find it so interesting that the government is now, specifically with reference to upstream collection, following the same approach.

Do these secret statements of authority basically say, “We admit it, judge, we’ve been violating the law in precisely the way the plaintiffs claim we have. But you have to bury that fact behind state secrets privilege, because our dragnets are more important than the Fourth Amendment”? Or do they claim they’re doing this illegal dragnettery under EO 12333 so the court can’t stop them?

If so, I can see why the government would want to keep them secret.

Update: I originally got the name of Shubert wrong. Virginia Shubert is the plaintiff.

The October 30, 2009 Statement of Authorities: The EFF Document Fight Could Get Very Interesting

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If the Chief FISC Judge accuses the government of material misrepresentations but no one but a dirty fucking hippie blogger reports it, did it happen?

On Friday, I reported on Judge Reggie Walton’s cranky opinion asking for an explanation about why the government didn’t tell him EFF believed they had a protection order in cases relevant to the dragnets. And while it overstates the resounding silence to say that only your esteemed DFH host reported it — TechDirt had a good report — some of the other reporting on it thus far seems to have missed the whole material misrepresentation judgement in Walton’s order.

But I think it’s not yet clear — to anyone — how interesting this document fight could get.

Just as one example of why (I’ll develop some of the others over the next couple of days, I hope), consider the October 30, 2009 statement of authorities.

Earlier this month, I noted that EFF had submitted a list of filings that the government had not released in spite of what they believed to be Judge Jeffrey White’s order to declassify everything.

  • April 9, 2007 notices indicating FISC Judge rejected early bulk orders
  • October 25, 2007 government challenge to motion to protect evidence, with ex parte NSA official declaration submitted in Shubert
  • April 3, 2009 supplemental memorandum in Jewel
  • October 30, 2009 supplemental memorandum on points of authority in Shubert
  • November 2012

In last Wednesday’s hearing, the government claimed they didn’t have to release these because they engaged in a colloquy limiting White’s orders to the state secrets declarations. And for the moment, I’ll take that as accurate.

But since then, the government has released one of these — the October 25, 2007 challenge to the protection motion — as part of their filing on Monday fighting a protection order in EFF’s phone dragnet suit. And that document was pretty stunning. Not only did it show the government had redefined the Multidistrict Litigation suits so as to exclude any of the FISA-authorized metadata dragnets that EFF of course had no way of knowing about yet. But in the filing, the government revealed that because of this filing and in defiance of Vaughn Walker’s November 2007 protection order, it has been destroying the metadata dragnet data in the interim.

In other words, the government is withholding these filings because they’re fairly damning.

Which got me thinking about the timing and significance of the October 30, 2009 supplemental memorandum on points of authority supporting a motion to dismiss the Shubert suit based on sovereign immunity and state secrets.

At one level, the memorandum is not all that suspicious. As you can see above, the government filed what is presumably roughly the same filing at the analogous time in Jewel, just as it was making its state secrets bid.

But I find the timing of the October 30 filings in Shubert to be of particular interest. That’s because a 2011 NSA training program seems to indicate that the Internet dragnet shut down at almost precisely that time, as it indicates that Internet dragnet data collected prior to November 2009 requires some sort of special treatment.

In addition, in the source information at the end of the line, the SIGAD [redacted] BR data can be recognized by SIGADs beginning with [redacted] For PR/TT, data collected after October 2010 is found [redacted] For a comprehensive listing of all the BR and PR/TT SIGADs as well as information on PR/TT data collected prior to November of 2009, contact your organization’s management or subject matter expert.

Remember, Shubert was suing for illegal wiretapping. And while Judge John Bates did not fully assess what NSA was doing — which appears to be collecting data that counts as content in the guise of collecting metadata — until the following year (some time between July and October 2010), when he did so, he implied the government had to comply with the laws in which they were claiming, in 2009, they had sovereign immunity. And the government had to know by that point they had serious legal problems with the Internet dragnet.

Indeed, the government kept asking for extensions leading up to this filing — at the time they claimed it was because of DOJ’s whats-old-is-new state secrets policy. Altogether they got an extra 22 days to file this filing (which should have been substantially similar to the ones they filed in April). They were almost certainly having still-undisclosed problems with the phone dragnet (probably relating to dissemination of data), as the October 30, 2009 phone dragnet orders is one of the ones the government has withheld even though it is obviously responsive to ACLU and EFF’s FOIA. But the discussions on the Internet dragnet must have been even more contentious, given that the FISC (probably either Reggie Walton or John Bates) refused to reauthorize it. (Note, October 30, 2009 was a Friday, so if FISC formally didn’t approve the Internet dragnet in October 2009, it would have been that day).

And the thing is, from Keith Alexander’s state secrets declaration, submitted perhaps hours and almost certainly no more than a month before the Internet dragnet got shut down because it was illegally collecting metadata that was legally content, it’s not at all clear that the government fully disclosed details they knew about those legal problems with the dragnet. Look closely at ¶¶ 27 and 28, ¶¶48-56, ¶¶58-62 with footnotes.

The phone dragnet description hides the problems with ongoing dissemination problems (which the Administration hid from Congress, as well). It also makes no mention that the phone dragnet had US persons on an alert list without reviewing those selectors for First Amendment review, something that should be central to the suits against NSA (see in particular ¶60). And while there are redacted sentences and footnotes — 13 and 24 — which could include notice that the government was (and had been, since the inception of the FISC-authorized Internet dragnet) collecting metadata that counted as content, those are all very brief descriptions. Moreover, the unredacted descriptions clearly claim that the Internet dragnet program collects no content, which legally it almost certainly did. Moreover, note that the references to the Internet dragnet speak of it in the present tense: “Pursuant to the FISA Pen Register, …. NSA is authorized to collect in bulk.”But there doesn’t seem to be the parallel structure in ¶28 where you’d expect the government to confess that the program was imminently shutting down because it was illegally collecting Internet content.

Note, too, how the declaration refers to the reauthorizations. ¶59 describes the phone dragnet authority “continuing until October 30, 2009” and ¶58 describes the Internet dragnet “requires continued assistance by the providers through [redacted] 2009. They appear not to have known for sure whether the programs would be reauthorized that night! But they appear not to have explained why not.

Perhaps the most pregnant paragraph is ¶62, which in context appears to relate only to the phone dragnet, though I suspect the government would point to to claim their description of violations was not comprehensive:

NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.

By any measure, Alexander’s declaration falls short of what the government already knew at that time, demonstrably so in the case of the phone dragnet. He hid details — significantly, the watchlist of Americans that violated statute, and almost certainly that the NSA was collecting content in the name of metadata — that were material to the suits at hand.

Which brings me to the memo on authorities. Even as the government was hiding material violations of the statutes they were disclosing to Judge Walker, was it also making expansive Executive Authority claims it couldn’t (and still can’t) share with plaintiffs? Did the government, for example, make an Executive Authority claim that we have every reason to believe John Bates (especially) and Reggie Walton would rebut if they knew about it?

In any case, in addition to the watchlist data from those 3,000 US persons (which would have aged off last month otherwise), the last of the illegal Internet content-as-metadata data might be aged off as soon as April absent these stays.That data might well provide plaintiffs proof they were illegally wiretapped (note, the Internet dragnet was limited to certain switches, but Jewel was built around the Folsom Street switch which was almost certainly included in that). And that the government provided highly misleading descriptions to Vaughn Walker when bidding for a state secrets exemption.

And add in one more legal fight here: as I noted, DOJ is withholding the October 30, 2009 (as well as one later one from 2009) from both the ACLU and EFF (the EFF suit is before a different San Francisco judge). In addition, DOJ is refusing all push for expedited processing on FOIAs for the Internet dragnet filings.

Seeing how clearly manipulative their data release in these lawsuits is, it seems safe to suggest the government is also making FOIA decisions to prevent plaintiffs from obtaining information to really contest these suits. That shouldn’t surprise anyone. But I would hope it would piss off the judges.

The Clear Precedent for Carrie Cordero’s “Uncharted Territory” of Destruction of Evidence

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Shane Harris has a report on the government’s odd behavior in regards to preserving the phone dragnet data in light of the suits challenging its legality.

It’s surprising on three counts. First, because he claims the legal back and forth has not previously been reported.

Now, that database will include phone records that are older than five years — not exactly the outcome that critics of the NSA program were hoping for. A dramatic series of legal maneuvers, which have not been previously reported, led the outcome.

It’s surprising not just because the “legal maneuvers” have in fact been reported before (though not the detail that James Cole got involved, though it’s not yet clear how his involvement affected the actual legal maneuvers rather than the internal DOJ communication issues). But also because Harris neglects to mention key details of those legal maneuvers — notably that EFF reminded DOJ, starting on February 26, that it had preservation orders that should affect the dragnet data, reminders which DOJ stalled and then ignored.

Harris’ piece is also surprising because of the implicit suggestion that NSA hasn’t been aging off data regularly, as it is supposed to be.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no “deadline” here — aside from the daily “deadline” that should automatically age off the five year old data. Now, the WSJ had previously reported that that’s not actually how age-off works.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

But even assuming NSA only ages off data twice a year (in which case they should stop claiming they only “keep” data for 5 years because they already keep some of it for 5 1/2 years), most of these suits are well older than 6 months old, predating what might have been an August age-off, which means unless NSA already deviated from its normal pattern, it deleted data relevant to the suits.

By far the most surprising detail in Harris’ story, however, is this response from former DOJ National Security Division Counsel Carrie Cordero to the news that Deputy Attorney General James Cole has gotten involved. This is, Cordero claims, “uncharted territory.”

“This is all uncharted territory,” said Carrie Cordero, a former senior Justice Department official who recently served as the counsel to the head of the National Security Division. “Given the complexity and the novelty of this chain of events, it’s a good thing that the deputy attorney general is personally engaged, and it demonstrates the significant attention that they’re giving to it.”

To be more specific about Cordero’s work history, from 2007 to 2011, she was deeply involved in FISA-related issues, first at ODNI and then at DOJ’s NSD.

In 2009, I served as Counsel to the Assistant Attorney General for National Security at the Unit ed States Department of Justice, where I co – chaired an interagency group created by the Director of National Intelligence (DNI) to improve FISA processes. From 2007 – 2009, I served in a joint duty capacity as a Senior Associate General Counsel at the Office of the Director of National Intelligence, where I worked behind the scenes on matters relating to the legislative efforts that resulted in the FISA Amendments Act of 2008.

Given her position in the thick of FISA-related issues, one would think she was at least aware of the protection order Vaughn Walker issued on November 6, 2007 ordering the preservation of evidence, up to and including “tangible things,” in the multidistrict litigation issues pertaining to the dragnet.

[T]he court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action,

And Cordero presumably should be aware that Walker renewed the same order on November 13, 2009, extending it to cover the Jewel suit, which had an ongoing focus.

Cordero is presumably aware of two other details. First, there should be absolutely no dispute that the phone dragnet was covered by these suits. That’s because at least as early as May 25, 2007 (and again in a declaration submitted October 2009), Keith Alexander included the phone dragnet among the things he considered related to the EFF and other suits over which he claimed state secrets.

In particular, disclosure of the NSA’s ability to utilize the TSP (or, therefore, the current FISA Court-authorized content collection) in conjunction with contact chaining [redacted–probably relating to data mining] would severely undermine efforts to detect terrorist activities.

[snip]

To the extent that the NSA’s bulk collection and targeted analysis of communication meta data may be at issue in this case, those activities–as described in paragraphs 27 and 28 above–must also be protected from disclosure.

In paragraphs 27 and 28 and the following paragraphs, Alexander named the FISC Pen Register and Telephone Records Orders by name.

Thus, as far back as 2007, the NSA acknowledged that it used its content collection in conjunction with its metadata dragnets, including data obtained pursuant to the FISA dragnet orders.

Read more →

Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

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Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions. We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

In Jewel Decision, Article III Uses Article I to Rebut Article II

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The 9th Circuit just released its decisions in two warrantless wiretap suits: Jewel, which claimed that the dragnet collection of communications from the Folsom Street AT&T facility violated FISA, Electronic Communication Privacy Act, and the Stored Communications Act; and Hepting, which argued that the FISA Amendments Act–which grated the telecoms retroactive immunity for their illegal wiretapping–was unconstitutional. Both opinions were authored by Margaret McKeown.

The Hepting decision is a slam dunk win for the telecoms. While there are some interesting–and perhaps dubious moves–in the decision, the Circuit completely upheld Vaughn Walker’s District Court ruling that the retroactive immunity granted to the telecoms was constitutional.

But that huge win for the telecoms relies on the Circuit’s observation that Congress has the authority to pass laws regarding surveillance. And that’s what gets the government in trouble in Jewel. The Circuit based its decision that Carolyn Jewel had standing to sue the government for collecting her communications on that same principle–that Congress could and had passed laws that regulate surveillance–including the private right of action for claims of illegal surveillance.

Both the ECPA and the FISA prohibit electronic interception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explicitly creates a private right of action for claims of illegal surveillance.

McKeown’s opinion then uses the authority of Congress to dismiss the notion that this question–whether the Executive could be punished for its illegal surveillance of Jewel–should be thrown back in Congress’ lap. Congress has already weighed in on the issue, McKeown points out, both in the underlying statutes (providing for a judicial avenue of relief), and in the FAA (granting immunity to the telecoms but not the government).

After labeling Jewel’s claim as an effort “to redress alleged malfeasance by the executive branch,” the district court stated that “the political process, rather than the judicial process,” may be the appropriate avenue. There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said, although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. Read more →

California Supreme Court Rules There Is Standing For Prop 8 Intervenors

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Liberty & Justice by Mirko Ilic

When the Ninth Circuit initially referred the issue of standing for the Defendant-Intervenors in the Perry v. Schwarzenegger/Brown back at the start of the year, I wrote this:

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

The California Supreme Court just issued its opinion and I have been affirmed! In short, the highest California appellate court has certified to the 9th Circuit that, as a matter of state law, the DI’s have legitimate standing to represent their side of the matter in Federal appellate courts.

The key finding is:

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir. No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so”.
….
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

Here is the full decision.

The opinion was written by newly seated Chief Judge Tani Cantil-Sakauye, who was literally sworn in the day before the 9th Circuit dumped this question in the laps of the California Supremes. It appears quite well sculpted and the full court signed on to her opinion; however, Judge Kennard issued a specially concurring opinion to “highlight the historical and legal events that have led to today’s decision and to explain why I concur in that decision”. As I said back in January, this was not really all that novel of an issue in California jurisprudence, and so the court has noted and, now, established with certainty.

Time for Steve Reinhardt and his merry band of 9th Circuit pranksters to fire up the cert alert in the stodgy halls of SCOTUS! And I think that will be happening sooner rather than later as the 9th has already received full briefing and oral argument on the merits. I would even go so far as to say there are draft opinions already written and ready to be tweaked and supplemented with today’s California Supreme Court ruling. So expect a ruling from the 9th fairly quickly.

I will be adding in some more analysis after a thorough reading of the full opinion.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

With David Kris Gone, DOJ Tries to Vacate Vaughn Walker’s FISA Opinion

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There’s an interesting tidbit in the government’s mediation questionnaire in anticipation of their appeal of Vaughn Walker’s decision that al-Haramain had been illegally wiretapped and was entitled to damages.

The government is willing to negotiate.

In response to the direction, “Provide any other information that might affect the suitability of this case for mediation,” the government wrote:

This matter touches upon fundamental legal issues that may be difficult if not impossible to compromise. It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings. The government is unwilling to state, however, that it would refuse to participate in mediation.

Granted, they didn’t say, “Let’s make a deal.” But compared to the imperious language the government has been using throughout this case (directed not just at the al-Haramain team, but even at Judge Walker himself), the statement that “the government is unwilling to state … that it would refuse to participate in mediation,” is like a romantic love letter. (Compare it, too, to what Imperial County said regarding mediation of Judge Walker’s equally momentous ruling in the Prop 8 case: “Due to the nature and complexity of this case, mediation will not be beneficial;” the Prop 8 defendant-intervenor team itself didn’t even answer the question!)

So on what terms is the government willing to negotiate?

It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings.

They’re suggesting they might just maybe be willing to maybe get into bed with al-Haramain if they’d be willing to vacate Judge Walker’s rulings.

What’s so horrible in Walker’s rulings that the government might entertain “letting the terrorists win” in exchange for vacating the rulings? It seems there are three possible parts of Walker’s July 2008 ruling the government might want vacated. (And remember, this is all premised on my supposition that the government’s coy openness to mediation suggests they are focused on vacating Walker’s ruling, which is really just a WAG.)

FISA trumps State Secrets; Congress can limit Article II secrecy

First, Walker ruled that FISA trumps state secrets.

Plaintiffs argue that the in camera procedure described in FISA’s section 1806(f) applies to preempt the protocol described in Reynolds in this case. Doc # 435/20 at 11-14. The court agrees.

[snip]

Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Walker relied on the legislative history and another case in which congressional action pre-empted common law, Milwaukee v. Illinois, to side with al-Haramain. More interesting, perhaps, is the way Walker addressed the government’s claim that USA v. Nixon and Navy v. Egan held that Article II gave the President unlimited authority over classified information. I’m particularly interested in Walker’s comments on Navy v. Egan (because both the Bush and Obama Administrations routinely rely on Navy v. Egan to claim unlimited control over classification, and it’s one part of his ruling they repeatedly ignored) are Walker’s comments on that case.

Egan recognized the president’s constitutional power to “control access to information bearing on national security,” stating that this power “falls on the President as head of the Executive Branch and as Commander in Chief” and “exists quite apart from any explicit congressional grant.” Id at 527. But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required.

Note, Walker also includes several references endorsing Congress’ claim that the government can’t withhold information about illegal intelligence activities, which probably gives the Administration gas all by itself.

In other words, one aspect of Walker’s ruling the government might want to see vacated is the ways in which he shows Congress has the authority to enact laws to limit the President’s unlimited control over secrecy.

FISA is the exclusive means to conduct electronic surveillance

This is a big one, as readily apparent from the verbal gymnastics the government engaged in during the FISA Amendments Act debate. Repeatedly, they tried to avoid letting DiFi introduce language to the effect of, “no, we meant it the first time, exclusive means means exclusive means.”

In his July 2008 ruling, Walker said,

Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

To understand why the government might want this vacated, you have to go no further than the government’s stall tactics with regards to the White Paper that purportedly made the warrantless wiretap program retroactively legal in 2006. Read more →

9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]