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

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

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

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

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

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

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

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

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

Not Seeing Storm Troopers, Not Scratching My Head

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

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

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

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

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

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

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

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

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

The Secret State Continues to Crumble

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

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

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

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

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

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

Correcting the Confused al-Haramain Reporting

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

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

You guys have all totally missed the plot!!

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

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

Shew. Sorry about that.

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

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

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

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

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

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

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

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

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

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

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

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

Retroactive Immunity for the Banksters, Too?

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

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

[snip]

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

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

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

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

Read more

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

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

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

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

How al-Haramain Got Declared a Terrorist Organization

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

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

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

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

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

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

Did Bush Lie to Vaughn Walker?

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

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

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

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

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

But this is:

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

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

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

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

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

Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning

The Executive Branch’s Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney’s rancid flesh.

Courts Get to Determine Classified Information for Their Trials

First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors–as distinct from elites like Cheney–could determine what counted as classified information.

Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.

Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.

A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.

(Someone’s been reading their bmaz.)

Lawyers Get to See Classified Information Their Clients Need for Their Defense

Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that. 

So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.

Back to al-Haramain: Obama Argues against Article III Review

And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.

Read the whole thing. Read more

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]

Hahahahahahaha!!!

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

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

Read more

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

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

The order is short and sweet:

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

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

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