More NDCA Goodness: Judge Walker Denies Prop 8 Proponents’ Motion

As most of you know, Proposition 8 in California is the anti gay marriage provision. Supporters of the basic right to gay marriage sued the State of California after passage of Proposition 8 as a ballot initiative in last falls elections. Today were oral arguments on a motion for summary judgment filed by a group of intervenors against gay marriage and supporting the validity of the law. The case is set in front of the one and only Chief Judge Vaughn Walker of NDCA.

Here is the report from the San Jose Mercury News:

A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California’s voter-approved ban on gay marriage must be resolved in a full-blown trial.

After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.

One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.

“Procreation doesn’t require marriage,” Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.

A representative from Law Dork was on hand and related this analysis:

Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.

Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson. The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). The Plaintiffs were represented today in court by Ted Olson.

The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion. This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.

This is an extremely notable ruling as Judge Walker appears to have made it from the bench at the conclusion of oral argument; he did not even bother to take it under advisement and save it for his written opinion. That is a judge totally convinced of the decision.

This is a very good, if not great, ruling and sets the stage for trial on the matter, which is already set for January of next year. Civil libertarians have to take their victories where they find them. This is another striking one coming out of the hallowed ground of the Northern District of California. My hat is off, there is something special going on up there.

Judge White Thumps The DOJ On EFF FOIA Case

Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more

State Secrets: Holder’s Game

I’m still working on understanding this, but here’s what I think the Obama Administration was trying to achieve with its "new" policy on state secrets the other day.

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.

Add in Jeppesen (Binyam Mohamed’s extraordinary rendition suit against a Boeing subsidiary), in which the 9th Circuit has already ruled that state secrets must be tied to evidence and not information, and it appears clear that the Courts might roll back state secrets as currently treated. 

And, at the same time, Jerrold Nadler and Pat Leahy have been negotiating new State Secrets legislation with the Administration. Nadler and Leahy, too, have been advocating a similar kind of CIPA-like process.

What the "new" state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the "new" policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s "new" policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

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

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

There’s a really fascinating paragraph in that document:

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

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

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

See what’s missing?

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

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

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

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The Royce Lamberth-Vaughn Walker Golf Match

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

Here are the similarities:

Appeals Court Ruling in Favor of State Secrets Set Aside

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

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

Government Refusal to Acknowledge a Court Ruling

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

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

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


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

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Holder Refuses to Stand By Statements Saying Violating FISA Breaks the Law

By far the most disturbing part of the Senate Judiciary Committee oversight hearing today came when Russ Feingold asked Eric Holder whether he stands by a statement he made before the American Constitution Society last year.

In the midst of a speech that repeated "rule of law" like a Greek Chorus, after introducing this passage from his speech by saying certain steps taken by the Bush Administration "were unlawful," Holder said, "I never thought a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

When Feingold asked Holder whether he stands by that statement, Holder ignored the early part of his speech where he described all of Bush’s abuses to be "unlawful," and instead tried to claim he was narrowly saying that Bush simply "contravened" FISA.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

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Russ Feingold Throws Vaughn Walker a Softball

With this letter:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President (“NSA Legal Authorities White Paper”), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid. 

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides. 

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the “White Paper” and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication. 

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Obama DOJ Asks Full Panel to Review Jeppesen

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

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

(Attorney Coppolino shaking his head.)

THE COURT: Mr. Coppolino says no.

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

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

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

THE CLERK: That’s correct.

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

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

THE COURT: All right.

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

THE COURT: What does September 2 look like?

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

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

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Vaughn Walker’s Chess Game: Sue the Telecoms Part One

In two earlier posts I laid out where Vaughn Walker seems to be going with the warrantless wiretapping cases. In this post, I’m going to consider his suggestion–made in his ruling rejecting a challenge to retroactive immunity–that the plaintiffs could sue the telecoms for activities after January 17, 2007 (note, Walker said January 7, but it’s almost certain he meant January 17).

Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of
plaintiffs’ opposition to motion of the United States” to dismiss. Doc #627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA warrantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’” Doc #627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master
consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-morestringent pleading standards applicable in federal courts (see, e g, Ashcroft v Iqbal, ___ US ___, 129 S Ct 1937 (2009)), to allege causes of action not affected by the Attorney General’s successful invocation of section 802’s immunity.

EFF had submitted the recent Lichtblau and Risen article in support of their argument that they could sue for past abuses, and in response, Walker said, "Well, why don’t you sue for more recent abuses?" 

Is Walker serious? Does he really think there is means to do that?

The Recent History of the Wiretap Program and the Immunities

Let’s start by looking at the recent history of the mass wiretap program along with the immunities offered by Congress in 2007 and 2008.

January 10, 2007: FISA Court issues first order covering the program

January 17, 2007: Alberto Gonzales informs Congress FISA Court will now approve wiretap program

May 2007: FISA Court judge rejects Administration’s order for a basket warrant

May 15, 2007, 10 AM: Jim Comey testifies before Senate Judiciary Committee, describes Hospital confrontation

May 15, 2007, 10 AM: US Intelligence meets to discuss collecting more intelligence in case of kidnapped soldiers in Iraq

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Vaughn Walker’s Chess Game: The New Rules

The other day, I did a post that summarized where we are on the interlocking warrantless wiretap claims. I summarized the state of affairs as follows:

  • Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
  • The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
  • The hearing in Jewel scheduled for July 15
  • The state cases dismissed pretty definitively
  • The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewell
  • Any discovery action in the Seda case
  • The legally required IG report on warrantless wiretapping due (ha!) next month

Since the beginning of the year, Walker has been proceeding very deliberately (read, slowly) with the cases under his control (indeed, the September 1 hearing date for al-Haramain may suggest he continues to do so), during which time a number of issues in these cases have solidified. In some cases, this holds true just for his courtroom; in others, it holds true at the 9th Circuit. Most haven’t been tested in SCOTUS yet. This deliberation sucks, insofar as the criminal statute of limitations on the primary illegal wiretapping that occurred in March 2004 has expired. But I think Walker allowed everything to mature such that–on Thursday–he felt he could move three of them forward at once. In this post, I’ll explain what I think has matured in these cases, and look at how it affects the Jewel suit against the government. In a follow-up post I’m going to look at what it might mean for post-January 7, 2007 surveillance.

Here’s my NAL understanding of what has matured in that time (as always, feel free to kick my ass on my misunderstanding of the law or any other aspect of this).

  • The Court of Appeals made it clear that the government must assert state secrets with respect to individual pieces of evidence, not information. This means the government cannot–as it has tried to–just declare the entire question of whether US person data was vacuumed up a state secret.
  • The Court of Appeals refused the government’s interlocutory appeal of Walker’s ruling that al-Haramain had sufficiently proved it had aggrieved status such that he could review the evidence to see if the charity had been wiretapped (this was also an unsuccessful attempt to appeal his ruling that FISA trumped state secrets that they had flubbed the previous summer). This means the 9th is probably going to give Walker leeway to rule on other aggrieved party statuses, if he does so.
  • Vaughn Walker got four new declarations presumably correcting an "inaccuracy" in how Bush’s DOJ had described the surveillance done on al-Haramain and probably giving him a much better idea how the surveillance worked.
  • Vaughn Walker just affirmed the government’s insistence that the legislative record holds significant sway in these proceedings, but also that under Navy v. Egan Congress can legislate restrictions on the handling of classified information. This carves out a space where a judge can assess liability for illegal surveillance, even in the face of the government’s attempt to claim this is all secret (though Walker’s affirmation of this argument hasn’t been tested yet). 
  • The Supreme Court ruled in Iqbal that a plaintiff must submit specific facts for a claim to overcome qualified immunity of a government employee in his official duties.

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