Vaughn Walker Will Review the al-Haramain Document

/in /by

Threat Level is reporting that Judge Walker–who is overseeing several of the FISA suits against the telecoms and the government–will review the log of warrantless wiretapping of lawyers representing the Muslim charity al-Haramain to determine whether or not the lawyers were spied on illegally.

U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation’s spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful.

[snip]

Walker’s decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."

This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.

  1. bmaz says:

    That sound you hear is the soiling of undergarments in Bushland.

    On Monday, Walker ruled: “To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA.”

    Yeah, it is going to show that. I won’t guarantee that; but I will come damn close to guaranteeing it.

  3. FormerFed says:

    Marcy, I read this as very good news because as you say “at least it is judicial review”. I know there are some bummer judges in the system, but I still feel judges as a body are the last and best protectors of our rights.

    Do you think the lawyers found “independent evidence” or did Judge Walker change his mind or did something else play in his decision?

    • emptywheel says:

      The case is in the opinion.

      They basically show:

      1) When they were originally investigated, they weren’t designated the super-secret terrorist group.
      2) Then they were provisionally designed one based on finance info.
      3) Then, after a period when the lawyers were talking about ties to OBL, they were designate super secret terrorists group.
      4) They were definitely wiretapped (not sure if they prove that the warrant wasn’t shown in discovery).

      In other words, they show that the govt had to have used those lawyer client conversations to designate their clients as a super secret terrorist group.

      • FormerFed says:

        Thanks a bunch – sounds like some good lawyering going on.

        And damned fine research and analysis on your part – as always.

  4. emptywheel says:

    Here’s a bit of the opinion of which I’m particularly fond:

    Plaintiffs articulate their proposed standard, in summary, as follows: “plaintiffs’ burden of proving their ‘aggrieved person’ status is to produce unclassified prima facie evidence, direct and/or circumstantial, sufficient to raise a reasonable inference on a preponderance of the evidence that they were subjected to electronic surveillance.” Doc #472/46 at 19.

    Defendants attack plaintiffs’ proposed prima facie case approach by suggesting, as to plaintiffs’ motion, that “no court has ever used Section 1806(f) in this manner” and that it would “open a floodgate of litigation whereby anyone who believes he can ‘infer’ from ‘circumstantial evidence’ that he was subject to electronic surveillance could compel a response by the Attorney General under Section 1806(f) and seek discovery of the matter through ex parte, in camera proceedings.” Doc # 499/51 at 12-13. These points are without merit.

  5. emptywheel says:

    bmaz

    I’m curious. The prima facie standard they’re using, based on the 9th standard–is that much more lenient than other circuits? In other words, is BushCo getting screwed (finally) for consolidating all these cases in the 9th?

    • bmaz says:

      Dunno what other Circuits’ standards are; but I have said all along, and it takes no genius to say this, that the 9th is the last place they want this stuff. Kind of shocking that that is where it landed for consolidation. cocky bastards likely thought they had everything waxed to where even the 9th couldn’t hose them. They have never been smart so much as just a bunch of bullies.

  6. emptywheel says:

    Here’s another bit I’m fond of:

    Tellingly, defendants in their reply brief consistently refer to their motion as a “summary judgment motion” and argue that plaintiffs cannot sustain their burden on “summary judgment” based on the allegations of the FAC. Defendants are getting ahead of themselves.

  7. emptywheel says:

    And here’s one more reason they’re trying to postpone the approval of Holder. They’re still trying to take the jurisdiction for how this document gets reviewed out of Article III and put it in Article II. This is what the govt claimed about how to decide how to review the doc.

    The discretion to invoke Section 1806(f) belongs to the Attorney General, and under the present circumstances —— where there has been no final determination that those procedures apply in this case to overcome the Government’s successful assertion of privilege and where serious harm to national security is at stake —— the Attorney General has not done so.

    Walker’s response is basically to say, “Um, I ripped that argument to shreds last July.”

  8. emptywheel says:

    Boo.Yah.

    Defendants simply continue to insist that § 1806(f) discovery may not be used to litigate the issue of standing; rather, they argue, plaintiffs have failed to establish their “Article III standing” and their case must now be dismissed. But defendants’ contention that plaintiffs must prove more than they have in order to avail themselves of section 1806(f) conflicts with the express primary purpose of in camera review under § 1806(f): “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.”

    Shorter Vaughn: You dumbshits are ignoring the very language of FISA.

  9. emptywheel says:

    Aw, now Vaughn is just ripping it up.

    In reply, plaintiffs call attention to the circular nature of the government’s position on their motion:

    Do defendants mean to assert their theory of unfettered presidential power over matters of national security —— the very theory plaintiffs seek to challenge in this case —— as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

    So it seems to the court also.

    I gotta say, this bodes very badly for the govt, given that Vaughn Walker is also pondering whether or not he buys Mukasey’s arguments about his certification that the program is legal in regards to the immunity provision passed last year. Walker is pissed as shit at this stuff.

  10. emptywheel says:

    Walker is NOT FUCKING AROUND.

    You see, he’s demanding the document within two weeks.

    I checked my calendar. That puts the document in his hand on or before January 19. That is, just before Obama takes office. And well before–given the attempts to obstruct Holder’s nomination–Obama has an AG.

  11. bmaz says:

    I am halfway surprised he gave them that long. I think they will stall by trying to file an interlocutory appeal. And they will wait until about the 12th day to lodge it; maybe 13th. They are fuckers, and if I were them, that is what i would do to put a stick in the mud.

    • LabDancer says:

      I’m thinking it’ll be more like:

      [a] application to Judge Walker to re-hear submissions;
      [b] application to Judge Walker to re-consider decision;
      [c] application to Judge Walker to stay effect of decision pending appeal;
      [d] application to Judge Walker to extend time for production;
      [e] application to appeal court to direct Judge Walker to [a];
      [f] application to appeal court to direct Judge Walker to [b];
      [g] application to appeal court to direct Judge Walker to [c]’
      [h] application to appeal court to direct Judge Walker to [d]’
      [i] emergency application to SCOTUS judge for full court hearing –

      as to which one? Doesn’t matter; they’ll never get to [i].

      On a MacBlago thread here earlier today, I raised how even the convicted still suffer from denial and invoke delay. Given the distance between the Water Boy and iron bars here, I expect it will be a lot more difficult to get the Water Boy’s to focus on the urgency of this situation than either Rezko or Ata.

      I would very much like to suggest it’s most likely that the ever efficacious Addington is directing the draftsmanship of the relevant pardon documents, but given that recent one with the rubber band attached, I’m not convinced it’s possible to predict that this bunch is capable of demonstrating more cravenness than incompetence.

  12. LabDancer says:

    Ms E Wheel – What? Are you channeling your kindred spirit at Indiana-Bloomington already? Keep this up and you’ll have the unwashed thinking there’s no magic in getting a law degree.

    [Though I think even you have to admit you’ve had SOME help from the Bush administration’s hiring standards.]

  13. rwcole says:

    maybe there will actually be a judgement on this behavior- now that Bush won’t be around to block it.

    Come on Obama- give us a justice department worthy of the name—try the bastards.

    I’d like to see the govt. prosecute.

  14. perris says:

    This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.

    I must say I am excited

  15. NorskeFlamethrower says:

    1,879 DAYZ AND THE KILLIN’ GOEZ ON AND ON AND…

    Citizen emptywheel and the Firepup Freedom Fighters:

    “It’s a far cry yet from putting Bush in the pokey for his illegal acts.”

    Indeed, but it is a beginning of a light of accountability to shine on the last 8+ years of lawlessness and corruption…I am not at all certain that anyone will see the inside of a courtroom let alone a jail cell for ANY of the criminal acts from the theft of the entire public treasury to the killing of hundreds of thousands in an illegal war but what we are about to see is jest how far the rot in our federal court system and system of justice extends. We are beginning to see jest how far the corruption extends in the leadership of the Democratic Party in the Senate and before the fight over Penetta to the CIA concludes we will have a great look at jest how far the corrution extends in our security and secret police structure.

    I have long argued that we have never had a “rule of law” in our country but instead we have had a 200 year struggle to acheive that end…and until the entire legal justification for corporate power is rewritten we will never make progress toward a true “rule of law” society.

    Thanx for the post, keep up the great work and…

    KEEP THE FAITH AND PASS THE AMMUNITION THE WAR IS NOW IN OUR LIVINGROOMS!!

  16. billybugs says:

    These Bushco villains will never see the inside of a jail cell
    They most likely will never even see the inside of a courtroom(criminal court)
    These mega-rich pricks will just buy their way out of this ,Bush has never been held accountable for his fuck-ups family always bails him out.
    Don’t hold your breath waiting for prosecution it gonna happen!!!