55 – I went looking and found the same. I think his name has been out for long enough that when I heard something “else” about him recently, I thought it was his confirmation, not just his first, “for real” announcement.

But something interesting to me, in googling to find whether he was confirmed yet, I found this article:
http://thecaucus.blogs.nytimes…..tice-dept/
which had some further detail on the Thompson refusal to sign FISC applications:

And when he was still at the Justice Department, he advised his boss, who was at the time Deputy Attorney General Larry Thompson, not to sign a mysterious batch of wiretapping warrants — which grew out of the program — because intelligence officials would not reveal how the information in the wiretaps was obtained.

I think that quote has some mispeakalese in it, but it’s the first I’ve heard that he was the one advising Thompson to not sign.

89 – I thought the lawyers pled both? Violations of FISA and the Constitution? From a rationale standpoint, though, I think you have a similar issue (and this is why the Exec orders on classification, for example, make a pretense at saying that nothing criminal will be “classified”) If you can’t successfully invoke state secrets to cover up a violation of the Constitution, can you successfully invoke state sectrets to cover up a criminal violation of a statute?

As a start point, it would depend on whether the statute is Constitutional. FISA gets fire from both sides on that – from the Presidential Imperialists and civil libertarians. But if it is Constitutional, then you would have the issues of both the Executive order that criminal activity not be “classified” and the Keith case as blocks to build with. The Executive can interpret its own order, but not can’t secretly interpret a public order in a manner so contrary to common language norms as to render the order deceitful.

Oh well, done for the night. There may be a reason why Obama’s hands were tied on the Walker case, but I haven’t seen it yet and it would not be bc he can’t direct the DOJ with Holder not in place.

92 – thiis deep in EPUland, but a couple of items. The first is if he took one set of actions re: cases like al-Marri’s and did not take those actions on Walker’s case, I think the failure to take the same kinds of actions in such an important case is a pretty strong indicator of assent.

Re: the paper trail, I don’t agree. The paper trail on the Investigation is all Exec Order, bc it will be all administrative action. But what happened with the Supreme Court did not (and does not) happen by virtue of Executive Order. So for the Sup Ct to delay the proceeding (see above quotes, but there are other stories out there “The Supreme Court also granted the administration a month’s delay … Lawyers for the Qatar native agreed to the delay”) Executive Order isn’t an option. The options are
a) that the court sua sponte (on its own) decides to enter an order giving a delay [this is highly unusual, would not be referenced in correct reporting {not that we can rely on that}as “granting” a delay and wouldn’t require any agreement or consent from lawyers for al-Marri]
b) al-Marri’s counsel of record, or a counsel that formally substituted for them with court approval (at this stage court approval would be requisite)of record, requests the delay by written or verbal motion and the court grants that with either the consent of gov or over gov’s objections [that didn’t happen]
c) gov’s counsel of record, or counsel formally substituted for the counsel of records, requests the delay by written or verbal motion and the court grants that with either the consent of al-Marri’s lawyers or over their objections

What happened is that gov lawyers of record on the case requested a delay – they did that bc they were told to do it. They also did what lawyers are generally required to do prior to taking such an action and that is to contact opposing counsel to see if opposing counsel objects. They did, opposing counsel wasn’t thrilled, but did consent. At this point you have what is sometimes referred to as a consent motion, or sometimes even just off handedly called a consent order – so that the court is contacted (written or verbal) and told who is asking for the delay and that opposing counsel does not object and unless there is a reason for the court to object, the court enters the order for delay by mutual consent.

This isn’t done much at the Sup Ct level for pretty obvious reasons, but as Padilla demonstrated, Roberts would do a lot to avoid having the Sup Ct have to actually act on these kinds of cases.

In any event, don’t confuse the investigation that is being instituted by Executive Order as somehow causing the Sup Ct delay without counsel of record on the case making a specific request to the court for that delay. And telling counsel of record to do that should not, and did not, take an Executive order, so you won’t find an Exec order paper trail in the Exec’s directions to the lawyers to get the delay.

On the wiretap cases, pretty much the very same parallel process would be taking place if Obama wanted it to – and Executive Order requiring investigations of the old, evolving, and present programs by a similar set of agencies (DOJ and AG to head it, CIA, FBI, NSA, etc), along with telling counsel of record to ask the court for a delay in response to his turnover order so that the admin could review the document in connection with its investigation and determine whether it should be provided.

imo

94 – “I think they haven’t taken swifter action because this case, unlike maintaining Guantanamo, isn’t simply subject to executive order. ” This is why I used the al-Marri case for comparison. It’s in the domestic courts, pending before Sup Ct, and not anything that involves or has evolved from a military commission.

Re: “legal pad’s” reliance on Holder, I think bmaz hits that, but keep in mind that a) Obama’s position, with his immunity vote, has been that FISA was the sole means then too, but hey, just because the law was broken, no biggie; b) the FISA amendments supported by Obama and which Holder is endorsing allow for drastically different parameters, as bmaz noted, but even more so allow for years of warrantless wiretapping directed out of the AG’s office and without oversight.

I’m not sure that I’m all that relieved to know that Holder is happy with those amendments.

108 “1) Can the Bush call for a stay be overturned with an executive order alone (as the Gitmo habeas procedings were)? “ Remember al-Marri’s case isn’t a GITMO habeas case. It’s like Padilla’s habeas case. And don’t confuse the GITMO habeas cases — in District Courts that are not subject to Executive orders, with the GITMO military commission prosecutions — which are commission set up under a command structure that does have to be responsive in some aspects (not all) to Executive order. The commissions at GITMO were stayed by Executive order, the CASES in FEDERAL COURTS get stayed only by requests of counsel in the cases or actions by the courts sua sponte.

2) Absent the kind of Order that worked in Gitmo, what would Obama have had to do? What he did in al-Marri and the habeas cases. Get the counsel of record to ask the courts for stays. He could have also entered an Executive order setting forth the investigations he wanted to undertake, and at that point those EOs could also have been used as supportive reasons for the counsel of record’s requests for stay. But EO or not, the first step is telling the lawyers to get the stays and that wasn’t done in the habeas cases (GITMO habeas or al-Marri’s) that are in federal courts by EO, it was done by requests for stay.

112 – The discussion of why you have classification etc. is fine, but then it leaps to a non-sequitor in saying the court’s ruling is “too broad” There’s no basis laid for that conclusion. As bmaz points out, the fact that the court is requiring, after all the information already provided to it, for turnover, is not the same as the court requiring that all matters relating to ‘teh program’ and supporting the log and and revealed in the log etc. be printed in 18 point font in the NYT. The court getting to see it, after a boatload of lawyers and others and a whole overseas ensemble have gotten to see it (and the overseas ensemble have the document in hand and we aren’t even trying to get it back from them) – isn’t putting the nation at risk and it’s a pretty bald assumption that the court will then do something evil or awful with the info. Courts deal with classified info all the time.