Commenting without reading the opinions – a bad thing I’m going to do. Also commenting when I haven’t really followed these cases that tightly – another bad thing. But here I go anyway.

Going back to my pet theory on the ties of the FISCt Chief Judge’s meltdown that reportedly coincided in time with the sudden religious enlightenment at DOJ (facing hell makes it easier to choose heaven) – back on a much earlier thread on al-haramain case proceedings (for the charity, not this related matter filed by the lawyers) I wondered if this case might not have been a precipitator for the whole thing. Very likely it wasn’t, but here’s what I would spec about.

There were investigations of charities going on where I have to think that the AG/DAG (until Thompson chickened out of signing off on applications that he knew were likely to be in violation of FISCt firewall orders) were signing off on, for applications for normal, statutory intelligence surveillance warrants. But where illegal, unconstitutional suveillance was also taking place pursuant to “teh program” all those applications were supposed to be directed to the Chief Judge and handled with knowledge of the illegal surveillance program taint of the whole judicial and justice institutions.

And early in 2004, something triggered a specific reaction by the Ct, based on info that Baker gave them, possibly about a specific case, like this one, where statutory surveillance applications were being made and proceeding with no one following the firewall order. Keep in mind that the court had taken on Fran Townsend and FBI agents earlier relating to pretty widespread, fibbified FISA applications and now the Chief Judge was ready to start holding TOP DOJ officials, like Mueller and Ashcroft, directly responsible for misrepresentations to the court and violations of court orders. This had been coming down the pike so clearly that Thompson had stopped signing applications before he left office.

And voila – the heroes at DOJ got religion on the program. But not so much religion that Judge Diggs-Taylor didn’t find that the direct surveillance portions of “teh program” were not still completely unconstitutional. And notice how all the recent leaks (and the illwind or whatever it was code name) deal with the data mining, not the direct surveillance, in a pretty obvious effort to talk up the most defensible program (hey, it was just datamining emails) as a bait and switch from discussions about the part of the program that was ruled unconstitutional and is apparently partially revealed by the al-Haramin doc – direct surveillance of domestic lawyers’ conversations without warrant.

So I still think the only “religion” that DOJ got was enough religion to put enough controls on “teh program” that they could keep a better track on all the illegally surveilled persons and make sure that they better complied with the firewall orders.

Now jumping gears entirely, I have to wonder just how far Walker is going to go on all this, bc there is a real plethora of issues, and not just relating to the unconstituional surveillance that didn’t even attempt to comply with FISA.

The Sup Ct cases that allowed for the concept of “intelligence” surveillance – surveillance that proceeded without any probable cause to believe that a crime was being committed or planned, but only probable cause that a “foreing agent” was involved in the communications – IIRC those cases premised that ability to proceed on less than probable cause that a crime was being committed were based on the concept that foreign intel surveillance would not be used for criminal prosecutions.

Congress has changed all that with the revisions to the Pat Act. Now, DOJ absolutely can make applications where they are specifically trying to pursue criminal prosecutions and do not have any criminal probable cause to seek a surveillance order. As long as they can make up any kind of “foreign” aspect or tie, the get to listen in on communications trying to find something chargeable, and that fishing expedition crap is all supposed to be allowed and allowable now, even though they never would have been able to get a crim surveillance order.

That’s a pretty huge subversion of a process and the old process was an integral part of the old cases. It’s why “the wall” existed and while that was poorly administered and utilized, the “ruling” that brought down the wall, an In re Sealed Case ruling that was one of the only FISA appeals cases and the only one with a published case that I know of (but I’m not an expert) that appellate ruling is almost incoherent and riddled with DOJ self-serving dicta. And it was generated in a proceeding where there was no case in controversey and direct advocacy and no appeal rights for the injured party (only for the DOJ)

Anyway, that’s an aspect that needs attention at some point and it just isn’t getting any, so I wonder if Walker will touch on it in the aspects that he has to deal with.

And Walker couild basically go to the whole of the Mitchell doctrine, that was shot down in the Keith case, and the impact of the Keith case as, IMO, Sup Ct precedent that unconstitutional Government activity is not protected by states secrets doctrines. The AG filed the affidavits vis a vis the wiretaps in that case, but they still came out. And remember, in that case that Gov was arguing that it wasn’t using the illegal taps in theproceeding and that the prosecutors hadn’t even known about the unconstituional taps. While here there have been all kinds of bootstrapping.

The other aspect Walker may or may not get to touch upon is how many cases across the country have been subject to affirmative misrepresentations by the Gov lawyers invovled if there have been widespread unconstitutional surveillance programs. I’m guessing that, unlike the lawyers in the Keith case and the AG then who were at least forthcoming to the court with the evidence of wiretaps — there are probably all kinds of cases and proceeding where the people involved have been subject to the unconstitutional programs and in the discovery requests gov has never fessed up.