The al-Haramain Order From Walker
I am still waiting for a report from the scene, but the hearing in Judge Walker’s court in al-Haramain on the Order to Show Cause is over and here is Walker’s order:
PROCEEDINGS:
Order to Show Cause Hearing.RESULTS:
The Court heard argument from counsel.
Plaintiff shall file a motion for summary judgment.
Hearing is set for 9/1/09 at 10:00 am.
Now, as MadDog noted, the AP is already reporting on the afternoon’s events, including the al-Haramain order. Here is the key language from the AP report:
Also Wednesday, Walker deferred a decision on how to deal with the government’s continued refusal to turn over an apparent log of telephone calls that the U.S.-based arm of an Islamic charity says shows it was the subject of warrantless wiretaps.
The Obama administration insists in court filings that release of the document will create "intolerable risks" to national security, the same stance taken by the Bush administration.
Walker ordered Department of Justice lawyers and attorneys for the charity to return Sept. 1 for further arguments.
Gee, nothing here, Walker just continued the hearing until September 1st. Ta ta now, move along.
Guess they didn’t see this line in the order (in spite of the fact it was the only other one substantively there):
Plaintiff shall file a motion for summary judgment.
Uh, hey guys, that line means something. It means that Walker has decided, after submission by the plaintiffs last Friday (see here and here), to go ahead down this path, and is encouraging the plaintiffs to lay out the desired factual predicate and exact law basis for how they want summary judgment entered. Now, this does not mean a final decision on awarding summary judgment is issued by the court, far from it, but it is damn clear that is exactly what is being contemplated.
As we have already discussed in relation to the earlier order on the states suits and telco claims, there is so much more here than meets the eye. And certainly than seems to have not met the AP’s eye. Crikey, and they’re going to sue us, for using their content?? You gotta be kidding me.
If you used only their content, you’d have no effin’ clue what really happened, would you? See how much they’re helping you by trying to keep you away from their dreck?
Thanks for reading the real item from Walker. The motion for summary judgment should make for some fine reading…
Fookin’ AP!
And I had the dubious honor of quoting them.
Pfui! *g*
Thanks bmaz !
Just caught up to all the opinions downstairs, does this answer MadDog’s comment @52 downstairs ?
There might be another reading of that single sentence.
As in, Judge Walker is noting that as a result of the Show Cause Hearing, he is simply documenting that the plaintiffs are going to file a motion for summary judgment.
That would give it a different interpretation than Judge Walker “encouraging” the filing of such a motion.
Am I being too uncharitable to Judge Walker?
“Shall” is mandatory; based on the pleadings and hearing, that is the understanding of the court and what is ordered.
I guess my mood is making me “uncharitable”.
That’s a pun in case no one caught it. As in Al Haramain was a “charitable” organization.
Jiminy cricket! Even my puns are awful today. *g*
You will, of course, get the skinny from the plaintiffs and pass it along to us.
Will try to maintain some patience, but it’s a trial (that too is a pun *g*).
Ladies and germs, MadDog will be playing this room all week. Try the veal…..
LOL!
Even lightening up my mood a wee little bit is a welcome relief. Ta!
finally had to lock him in a room, did we ???
saw it comin
(duckin & runnin)
Well at least I’m getting medication. What’s your excuse? LOL!
I don’t know
I been stealin half yer medication, maybe
or maybe I jes run faster
(wink)
This is so frustrating and so unlike how I work. Patience is a virtue I do not possess!
Speaking of which, a little bit more on the Al Haramain state-of-play via the WaPo:
Can’t wait until bmaz gets us the real skinny!
Patience Grasshopper, all will soon be revealed!
Thanks for the clarification…
For the sake of clarity, why don’t they use the word “will”?
Can someone do a post explaining why legal opinions are so fucking
unclear. Maybe it’s me, who got a 350 on my LSAT exam back when I had
a few brain cells…
I’m not a lawyer (although I did train with a few in grad school), but I have a deep interest in language and how it’s used. The short version of your answer is that legal language places a high value on having a very explicit shared understanding of the precise meaning of common phrases. More than just the jargon normal to any specialized field (you call it a bruise, but your doctor calls it a hematoma for a reason), legalese is the basis for contracts and the rules that determine who goes to jail, who pays the fines, who gets custody of the kids, etc. That means that words and phrases tend to get stuck in usage and meaning in way that’s very different from common language. Normal spoken and written language evolve at a fairly predictable pace. Legalese evolves much more slowly because it’s a bad thing if contracts, rulings, and laws from 100 years ago don’t mean the same thing today. In the case of ’shall’ (lawyers would say ‘in the instant case’ because their meaning of instant is frozen to one that has disappeared from common usage), ‘back in the day’ that English law developed the distinction between ‘will’ and ’shall’ was clearer than it is today.
To sum up, if they wrote ‘clearly’ for a modern audience, they’d risk unleashing chaos. The meanings of words change faster than is useful for the legal profession. One way to compensate for this is for legislatures to provide explicit ‘translations’ by declaring that particular modern phrases can be substituted for existing archaic usages. This happens from time to time.
Many thanks…
Should we fire the lawyers and hire a poet? (wink, poetic justice?)
To add to what WO said, it’s not just contracts. It’s even things like procedures and policies. “Shall” means has to. “Should” means can. And “may” means you have an opportunity to. But if you want to require something, you gotta say “shall” or the lawyers will get cranky.
September 1? Why so far away? I would have assumed the plaintiffs’ lawyers have this motion pretty much done.
I get the sense from the WaPo article that the September 1 date is due to the premise that now it has “apparently” been decided that Al Haramain was indeed warrantlessly wiretapped, and that the plaintiffs do indeed have standing, so it’s onto the next phase where the focus will be on the real arguments on whether the government had the authority to warrantlessly wiretap via stuff like the AUMF, Article II (with particular emphasis on Commander In Chief powers), and perhaps even actions taken under the rubric of “exigent circumstance”.
Well, I dunno for sure. I suppose the Defendants have a right to respond, and the plaintiffs to reply therefrom. The court usually sets a proposed schedule for that in federal court. I need better info to really say. But a common time is 30 days to respond and 15 days to reply therefrom. Also keep in mind that federal judges are often very scarce during the month of August. Some, all, or none of these considerations may be in play here; but that is just a guess.
cue the scary music
I smell a scalpin comin
them poor govmint lawyerin type fellas don wanna go in there …
In a case of “better late than never”, the NYT finally speaks (and gets stuff wrong…again):
Uhmmm…no NYT, as bmaz has repeatedly pointed out, the government likely has indemnification agreements with the telcos, so the telcos would not be out a single penny.
And this part made me laugh:
Those “customers” being the government, and “serving our customers’ needs” meaning, let’s do some more warrantless wiretapping! It’s fun and we can make money too!
Ok. Reading the Order which you have posted tells me a couple things.
1. This is a “minute order”. These are used to track progress of the case and do not contain substantive legal reasoning, or reasons, for what they record. Rather, they are more of the nature of a log of events.
2. Entry of a minute order can, but does not have to, be followed by (or preceded by) a more formal order deciding substantive matters. The decision in the Telco cases which we’d been talking about in the other, earlier thread is a substantive order (actually, an opinion which incorporates a substantive order). In fact, a good case can be made that the only reason a “minute order” is called an order is … because courts speak only through things called “orders”.
3. Being purely concerned with administration of the court and how the court uses its time, a minute order is not appealable. No one can be “aggrieved”, within the meaning of that word as it applies to appellate jurisdiction, by the entry of a minute order. You might not like the schedule the judge has entered, but you cannot realistically appeal it.
4. Maybe we get an opinion on why the judge has ordered the plaintiff to move for summary judgment, maybe not. Maybe we get one on sanctions, maybe not. Maybe he decided to let the sanctions hang over the government’s head, maybe not. Someone should order a transcript and find out (If a transcript is available).
Net result: plaintiff win.
Yes it is a minute entry. Still curiously brief and missing a few lines I would expect. Instead of the three terse lines he gave under “Results”, I would like a couple of explanatory sentences; usually you get them here in my district, but not always. We will find out tomorrow.
I have never heard of a judge ordering a party to file motion for summary judgment. As such, I strongly suspect it means something different than a literal reading of the words would suggest. I agree with Scribe, the answer is in the transcript.
Well, it isn’t that mysterious; it is what was generally on tap since the May 22 Order, and the May 29 memos filed by the parties as a result of the May 22 Order.
bmaz, You are correct. The May 22 Order clarifies the meaning of today’s Order. The May 22 Order provides, in relevant part:
The language in today’s Order means the Judge believes it is now appropriate and feasible for Plaintiffs to file a motion for summary judgment.
Thanks for helping me understand this.
Oldgold, see here for a discussion by the plaintiffs and their May 29 memo on their position regarding the summary judgment thought expressed in the May 22 order.
Read it. Thanks for bringing it to my attention.
Here’s a report from the scene. This was an odd hearing. The Goverment offered plan A, the plaintiffs plan B, C or D, and judge Walker chose . . . plan Z (though he claimed it was plan C). Just what Walker did — or meant to do — is unclear. It is likely that the press reports over the next day or two will reflect that confusion. Either Walker has not thought this through carefully, or he is so far ahead of the attorneys in this case that THEY can’t see where he is heading yet. Time will tell. But Walker is a wise man, and sometimes wisdom takes time to reveal itself.
Hey there, and welcome. Don’t recall seeing your name here before, thanks for joining in. Here are some questions I sent to another friend who was there (and I am dying to here back):
Any answers you have would be much appreciated.
The briefing schedule was left to be worked out between the parties. Hearing is September 1. I’d be lying if I said I knew what the “upshot” is. If someone gets hold of a reporter’s transcript of the hearing, they should post it and let the speculation begin. The order is essentially worthless for understanding what happened at the hearing. A close reading of the reporter’s transcipt might reveal what Walker ultimately has in mind — but my guess is 20 people (lawyers or not) would read it and come to 20 somewhat different conclusions. That’s why I said the press reports are likely to be widely divergent.
Wow. How long was the entire proceeding? Depending on the length, I will see about getting one.
Well over an hour. Some moments of levity and confusion. There are a lot of tea leaves there to be read.
Sounds like the transcript might be interesting – thanks for the on the scene report diogenesII
Shooting blind it kind of sounds like the Judge is anticipating the parties will work out briefing schedules (or he may issue a follow up order if they don’t) that will anticipate filings that very likely would hit the sur-reply level (so enough time for fiing, response, reply, sur-reply) and the court isn’t going to be scheduling hearings in Aug, so Sept 1 is a safe date to give everyone time to file ALL their briefs.
If SJ is very seriously on the line, it is likely to be extensive briefing, not just motion/response. And it sounds from the nature of the “shall” directive that in essence Walker is relatively convinced that the appropriate sanction for gov’s non-response is SJ, but he wants plaintiffs to put the options for how it would work and the substantive basis for that action on the table rather than have to court craft the options from whole cloth.
It also sounds like the timing might include some hail mary hope for the parties to actually work something out voluntarily.
Without any transcript, I have to think that the court is pretty much wanting plaintiffs to offer up some sanctions that will “work” to provide them a remedy while incorporating a respect for national security issues. The problem is that they are drafting in ignorance – blind – while Gov claims that its massive felony program of illegal and unconstitutional searches of American citizens on American soil is protectable as a national security matter. So addressing how to get to the endpoint of damages and all the journey points along the way are going to need plaintiffs to be creative in the remedy requests imo.
And they may end up being very case specific, or they may open doors to possible remedies and relief for the plaintiffs in Jewel as well. And I’d like to hope that injunctive relief for future violation gets on the table again. Sounds like there’s a lot of balls in the air right now and some of them will inevitably hit the ground. Which ones and how many.
Yeah, I doubt there is any real thought of them working anything out. Unless state secrets legislation, like Nadler’s for instance, forces the issue from a not yet present dynamic. I also think the path for moving for SJ is a little more buttoned down than you give credit for based on the plaintiff’s May 29 filing. That said, i think you are right that he is telling the plaintiffs to make it specific in the motion and definitive in the exact factual and legal basis they want it predicated on. As you alluded, diddly squat is likely going on in August (there never is), so this really is not an undue amount of time. I still think Walker is a man with a plan.
diogenesII is spot on re: the opaque hearing yesterday. It was an hour-long piece of kabuki theater.
Walker volunteered his thoughts on the need to avoid/minimize the government introducing evidence and pleadings to which plaintiffs had no access. He also stressed the need to reach a final conclusion so the case could move on to the appellate court before they all retired/died.
Eisenberg (for plaintiffs) went first and spent most of his time addressing his preference for proceeding with “Scenario Two” (see plaintiffs’ memo on feasibility of summary judgment). Unfortunately, he wasn’t very precise about what Scenario Two was. Certainly it involved moving directly to summary judgment proceedings without resort to a protective order. Plaintiffs’ memo made clear this would be partial summary judgment, but there seemed some ambiguity about exactly what would be adjudicated on that motion.
Eisenberg concurred in Walker’s initial concerns and suggested that the court not entertain any more (secret) evidence from the govt.
Coppolino objected to sanctions (mostly by reference to the show-cause reply filed last week). He moved on quickly to the implications of Scenario Two and noted some apparent ambiguity about plaintiffs’/court’s reliance on the Sealed Document during summary adjudication. Walker said he believed Scenario Two would not require any recourse to the Sealed Document. Coppolino then wasted 20+ minutes reiterating that (a) you can’t pre-empt state secrets privilege (Walker: “we’ve settled that”) and that case is ripe for appeal (Walker: “not how I read the recent denial from the circuit panel”). Round and round they went. Wasting everyone’s time and patience. Par for the course.
Eisenberg then clarified that he thought the court should/must consider the Sealed Document during summary judgment. The plaintiffs did not, however, require (further) access to it. Walker said, in essence, “not a good idea.” Eisenberg stumbled around for a while (no doubt trying to imagine how to proceed to summary judgment with the public facts at hand).
Eisenberg also pleaded for sanctions (expenses only), which Walker didn’t want to entertain at this time.
As for the hearing date, Eisenberg (and Walker) wanted a hearing as soon as practical, but the briefing schedule would run to August, which didn’t work for the court/govt (Eisenberg said he’d show up at anytime no matter how busy he was).
Suffice to say, I don’t think everyone’s on the same page. I’m inclined to trust Walker’s plan, but I’m not sure I know what it is.
As Mary said, thanks.
Heh heh, lets phrase the question this way: Are you convinced Walker does have this planned out, or is he winging it a little? My inclination is he really does have a map, but he isn’t giving it up yet.
This is a good summary. One central point to note: the plaintiffs lawyers suggested (in option 2) that Walker would review the sealed document in camera and make his summary judgment determination based on all of the evidence, including the sealed document (without the plaintiffs getting access). Judge Walker did not seem to understand that. He was under the impression — and ultimately ordered — that plaintiffs make their summary judgment motion on the basis of the PUBLIC INFORMATION only — which seemed to leave the plaintiffs’ lawyers scratching their heads. Is Walker a step ahead of the lawyers? Or is he heading down a path he doesn’t fully understand? Only time will tell . . .
It is my understanding that somewhere in there Walker said something to the effect that “I will consider it if it is necessary”, is that correct?
It’s unclear exactly what he said (though that is one reasonable interpretation). That’s why someone should post a transcript of the hearing. I guess bloggers don’t have expense accounts . . .
I am getting one; will be a few days though.
Thanks for the additional info ( ).