The Latest State Secrets Claim
Yes, I know, I’ve been so preoccupied trying to save my state from JP Morgan Chase that I have not yet commented on the Obama Administration’s latest Cheneyesque invocation of state secrets, in the EFF/Jewel case. Of course, that means some smart lawyers have already beat up the filing on legal grounds. So I thought I’d focus my attention on tactical issues.
Three Interlocking Cases
Before I do that though, let’s review what this suit is and what else is going on. As Glenn pointed out, EFF filed this suit after Jello Jay Rockefeller, the patron saint of the awful FISA Amendment Act last year (and a big Obama backer), claimed during deliberations on that bill that,
…lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.
Now, I don’t believe for a millisecond that Jello Jay actually intended for lawsuits to go forward–he was, instead, trying to dismiss opposition to immunity–but nevertheless, the legislative record on FISA now reflects that the bill’s sponsor thinks citizens should be able to sue those who illegally wiretapped.
Meanwhile, of course, there are two decisions still pending (as far as we know) before the judge in this case, Vaughn Walker. The first is the al-Haramain suit, in which the 9th Circuit already decided the warrantless wiretap program was a properly invoked state secret, but in which al-Haramain’s suit will probably go forward because Walker ruled the charity had proved it was an aggrieved party without the materials over which Bush invoked state secrets. Now (again, as far as we know), Walker is looking at the wiretap log and the other classified briefs submitted in the case, and deciding whether al-Haramain has standing (and therefore, whether the Bush Administration violated FISA). If and when Walker rules that the Bush Administration did violate FISA, there will be a giant fight over whether he, or the Administration, gets to decide which documents in that case will be made public and/or available to al-Haramain’s lawyers. (Contrary to almost all the reporting in the case, Walker has not yet decided whether or not he would require the government to hand over the wiretap logs and other briefs decribing the warrantless wiretap program.)
Finally, there’s the second pending decision–the EFF challenge to the immunity provision in FAA. Walker has suggested that he thinks Congress may not have provided specific enough instructions for the AG on how to certify which telecom should receive immunity. Thus, the legislative record from the FAA fight–the same legislative record in which Jello Jay said Americans should be able to sue their government for illegally wiretapping–has already been and will continue to be one of the central issues in the immunity challenge.
To sum up, Walker is deciding these four interlocking issues about the warrantless wiretapping cases all at the same time:
- Whether the Bush Administration violated FISA when wiretapping al-Haramain (and by association, with the wiretap program in general)
- Whether he can or should make materials submitted in the al-Haramain case public or available to al-Haramain’s lawyers so that case can move forward
- Whether the same Congress that said "lawsuits against the government can go forward" provided specific enough instructions ot to the Attorney General to support immunity for telecoms
- Whether, in spite of what Jello Jay said, the Administration is still somehow immune from suit for illegally wiretapping
It’s this context, I believe, that explains why Obama Administration lawyers wrote what the lawyers all agree was one crappy-ass brief.
The State Secrets Invocation
From the perspective of the Administration trying to juggle these four issues, I think the state secrets invocation is the least exciting of these issues. While the invocation of state secrets here is a fresh invocation, it still pertains to a program the 9th Circuit has already ruled on in al-Haramain. The government brief highlights this decision with cherry-picked quotations:
“[W]e acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena”).
[snip]
Moreover, the Ninth Circuit has made clear that the focal point of review is whether the Government has identified a reasonable danger to national security—not a court’s own assessment as to whether information is a secret or its disclosure would cause harm. See Al-Haramain, 507 F.3d at 1203 (“[J]udicial intuition . . . is no substitute for documented risks and threats posed by the potential disclosure of national security information.”) [ed: trust me–they’re warming up this quotation for their next fight in the al-Haramain case itself]
[snip]
The Ninth Circuit has recognized that “a bright line does not always separate the subject matter of the lawsuit from the information necessary to establish a prima facie case,” and that “in some cases there may be no dividing line.”
[snip]
Al-Haramain itself was such a case. The Ninth Circuit held that the “very subject matter of the case” was not a state secret based on several public disclosures by the Government as to the existence of the Terrorist Surveillance Program. See 507 F.3d at 1197-1200. But the court nonetheless held that the case would have to be dismissed on the ground that the state secrets privilege precluded plaintiffs from establishing their standing (unless the FISA preempted that privilege). In Al-Haramain, the Ninth Circuit upheld the Government’s assertion of the state secrets privilege (unless otherwise preempted by FISA) and found that it foreclosed plaintiffs there from establishing their standing as a factual matter.
While the government’s cherry-picked quotations are not always on point, and in some places they have to hedge carefully on al-Haramain and other cases that have come before Walker, the invocation of state secrets is to a significant degree an attempt to set Walker, in his current mood, against the Walker (and 9th Circuit), that was much more sympathetic to the government’s claims earlier in these cases.
But there’s a huge problem–two of them, actually–with trying to get rid of this suit solely by invoking state secrets.
First, the government didn’t appeal Walker’s ruling made in July 2008 that FISA trumped state secrets if al-Haramain showed aggrieved status without the wiretap log. That’s what they tried to appeal in January, when the Appeals Court said it had no jurisdiction. So they’re left repeatedly stating that they don’t buy Walker’s ruling that FISA trumps state secrets.
Defendants recognizes that the Court found an “[i]mplicit” waiver of sovereign immunity under 50 U.S.C. § 1810 in Al-Haramain Islamic Foundation, Inc. v. Bush, 564 F. Supp. 2d 1109, 1124-25 (N.D. Cal. 2008). But the Government respectfully disagrees with the Court’s conclusion and, for the record of this case, expressly reserve its position that Section 1810 contains no waiver of sovereign immunity to bring a damages claim against the United States.
[snip]
The Government recognizes that the Ninth Circuit in Al-Haramain remanded for consideration of whether the state secrets privilege is preempted by the Foreign Intelligence Surveillance Act, see Al-Haramain, 507 F.3d at 1205-06, and that this Court has ruled that the privilege is preempted by the FISA, see Al-Haramain, 564 F. Supp. 2d at 1115-125. As set forth below, the Government expressly preserves its position that the FISA does not preempt the state secrets privilege or other statutory privileges.
[snip]
Again, the Government preserves its position that FISA Section 1806(f) does not preempt the state secrets privilege or authorize a court to invoke its procedures in order to adjudicate whether or not a party has in fact been subject to surveillance and has standing.
[plus one much longer reservation starting on page 24]
They’re reserving the right to appeal this ruling, from the al-Haramain case, in this suit. But in this suit, at least, they’re swimming upstream, having screwed up last summer.
Now, as Mary has explained, in the al-Haramain case too they can circle back around to this issue. But at that point, it may well be too late, if not for al-Haramain, then for the other suits.
After all, while Walker may never be able to release descriptions of the program publicly in the al-Haramain suit (frankly, I think he won’t really try), he may well rule that the wiretapping was illegal. And that may well change the calculus of the other two suits–one that is assessing whether or not Congress was specific enough in its immunity amendments, and the other based on the premise that if the government broke the law, Jello Jay said, then people should be allowed to sue. If, in a set of cases consolidated under Walker, he rules that the wiretap program was illegal even when used against a suspected terrorist organization, then can he rule out suits for citizens about whom there was absolutely zero probable cause? (And note, by this time, Walker will already know what information was collected on average citizens.) In other words, if and when Walker finds the program illegal in one case–regardless of whether he can share those details with the plaintiffs–then it presents problems for the government with the other two suits presented together.
Absolute Immunity
Which is why, I think, the government has now pulled absolute immunity out of its arse.
Here, Anonymous Liberal’s assessment of the Administration’s misrepresentation of the law is very helpful (you legal types can tell me whether you agree with his reading–I’m interested in his take from a tactical perspective).
As I understand it, the DOJ is arguing that sovereign immunity has not been waived with respect to claims (such as the ones at issue in Jewel) that do not involve allegations of improper government disclosure of information.
[snip]
The other provision, section 2712, states:
Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.
Now according to the DOJ’s brief, section 2712 should be interpreted very narrowly as only waiving sovereign immunity with respect to instances in which the government improperly discloses someone’s personal information or records (which the plaintiffs in the EFF suit do not allege). But as you can see, there’s nothing at all in the statutory language that would limit the waiver in that way. Section 2712 authorizes anyone who is "aggrieved" by a violation of any of the various relevant statutes (including FISA) to bring a claim for money damages against the United States. Can’t someone be "aggrieved" by being illegally spied upon, even if the government never publicly releases the information it gathered? This argument just doesn’t make any sense to me.
At least as AL reads it, the government is erroneously claiming that Congress only waived sovereign immunity in FISA in cases in which the government improperly released information. In al-Haramain, of course, the government improperly released information from the wiretapping (albeit to the targets of the wiretapping themselves and, at least according to the FBI, by mistake). But for all us average citizens whose telecom data has been sucked up in an office in San Francisco, the government has made no such release. So, it seems, the government is trying to invent a way to reclaim the power of state secrets even if Walker’s ruling–that FISA trumps state secrets–remains and if Walker rules the entire program to be illegal.
Frankly, if the government hadn’t consolidated the wiretapping suits, they needn’t have bothered. Because, except for al-Haramain, no one else (except for maybe Lawrence Wright) would ever be able to get past the hurdle of proving aggrieved status with state secrets in place. But if a judge can review filings to determine aggrieved status, and this particular judge just happens to be reading–as we speak–a bunch of filings describing the program, and if said judge realizes that the wiretapping not just of al-Haramain, but the underlying claim to reasonable cause under the Fourth Amendment, is totally illegal, then what happens?
Standing and the "Dragnet" Surveillance
Which is why I find the way the government’s focus on the plaintiff’s "dragnet" claim to be so fascinating.
Recall that the al-Haramain suit focuses primarily on the allegation that the government–having collected signals in whatever manner and established reasonable cause in whatever manner–wiretapped a number of named individuals. That suit is about the end product of the warrantless wiretap program, in which the government, having identified targets through whatever means that fell short of FISA’s probable cause, then wiretapped those targets without approval from the FISC.
But Jewel focuses on the first part of the warrantless wiretap program, the large scale collection of telecom signals and the subsequent data-mining of those signals to identify potential targets for wiretapping.
And, as a reminder, I suspect that the "inaccurate information" that the Bush Administration may have submitted pertained to the data-mining aspect of this program.
With that in mind, read this passage, written by lawyers who are trying to keep the dragnet off limits, writing to a judge who now probably has read a description of the dragnet and may already be contemplating whether the dragnet–in addition to the more particularized wiretapping of the al-Haramain lawyers–is legal.
It bears emphasis that plaintiffs’ allegation of a “dragnet” of surveillance by the NSA—the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans, see, e.g. Compl. ¶ 7—does not establish their standing. Even if that allegation were sufficient to avoid dismissal on the pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege. Plaintiffs cannot establish the existence of an alleged content dragnet (previously denied by the Government, see Hepting, 439 F. Supp. 2d at 996), or its application to them personally without the disclosure of NSA intelligence sources and methods. Similarly, plaintiffs cannot establish standing based on allegations that records concerning their communications were collected as part of (or apart from) the alleged communications dragnet. As this Court noted in Hepting, “the government has neither confirmed nor denied whether it monitors communication records and has never publicly disclosed whether [such a program] actually exists,” see 493 F. Supp. 2d at 997, and the Court further recognized, in barring discovery on this claim in Hepting, that:
Revealing that a communication records program exists might encourage that terrorist to switch to less efficient but less detectable forms of communication. And revealing that such a program does not exist might encourage a terrorist to use AT&T services when he would have done so otherwise.
Id.; accord, Terkel, 441 F. Supp. 2d at 917. The Government’s privilege assertion as to this allegation again demonstrates the exceptional harm to national security that would result from any further proceedings on this allegation. For this reason, plaintiffs cannot sustain their burden of showing that such a program exists, much less satisfy their burden of establishing standing by showing that their communication records were collected under such an alleged program.
The government quotes Walker himself, writing in a case in which plaintiffs had not yet proved they were an aggrieved party, in an attempt to argue that in this suit, too, plaintiffs would never be able to prove their standing, and therefore never be able to get to a point where a judge could review their status as an aggrieved party under FISA
But all that pretends that they can time-transport back a few years, to a time when Walker hadn’t already reviewed details about this dragnet to assess its legality.
It’s like they’re saying, "even though we know and you know that there is a dragnet, the plaintiff’s assertion of such does not give them standing, so you can’t rule that they are included in a dragnet, even if you’ve already seen the proof that they are."
Now, frankly, I have no idea whether Walker can use his review of documents in the al-Haramain case to give the plaintiffs in Jewel standing. If his upcoming ruling said, "al-Haramain was illegally wiretapped, but in addition, the dragnet of innocent US person data is a gross violation of the Fourth Amedment," he might be able to, but if his ruling were limited to the March wiretaps of al-Haramain, it’d be a lot harder to do so.
But I suspect that the filings correcting the "inaccurate" information Bush submitted lay out this data-mining stuff in an attempt to prove reasonable suspicion with al-Haramain, which would then make the data-mining a central question of whether or not al-Haramain was legally wiretapped. To defend themselves in al-Haramain (and to stave off contempt charges), they may have been put in a position that made this suit a lot harder to defend.
In any case, though, this Obama DOJ appears to have thrown the desperate "absolute immunity" claim in here as a way to try to minimize the damage of all these factors collapsing in on themselves. That doesn’t mean it’ll work. Nor does it make it even remotely honorable.
OT – US declassifies war crimes evidence.
oops – sorry – that was re: Peru. Old news, never mind.
Coina Group – declassified.
Cheney Group – no so much.
Paraphrasing Professor Turley on this very subject on KO just now: “A Right of the People without Protection is No Right”.
And because most definitely IANAL, I simply can’t get past the fundamental circularity of the government’s argument; namely that clear and obvious crimes being committed can not be adjudicated because the government claims “States Secret”, and now “Sovereign Immunity”.
How can any lawyer anywhere defend such a thing? Where does their common sense take leave?
And particularly troubling to me is the fact that many Federal judges (Walker the apparent exception to the rule) find no problem in constructing a fantasy world where a crime is not a crime if it is a government “Secret”.
Where in the world is their common sense?
Is it a requirement of lawyering and judging that common sense be thrown on the trash heap?
Have you read the words of Humpty Dumpty and the Queen in Alice in Wonderland? Do you suppose Lewis Carroll was reading transcripts of proceedings in the Royal Court of his day?
Bob in HI
Yes, and you betcha! *g*
Yes. ‘common sense’ is something entirely different from law. Remember, law is created by politicians and we know they have a lot of things influencing them and common sense is low on the list.
Color me surprised. Did anyone really expect Potus to give up any power no matter how obtained?
Lawyers are creative.
In this case, they are testing legal theories to “see what sticks”
I’m so fucking annoyed that I’m wondering if we live in a democracy…
We don’t. That’s now absolutely clear.
Here’s my comment on parts of the brief from yesterday’s Greenwald thread:
Agree. And they’re also carefully parsing to distinguish between dragnet and
“communications”–meaning “content.” I suspect the Yoo Memos we haven’t seen build a justification for dragnet by expanding pen data. And so they’re parrotting a Yoo description of what communications are and are not. But they of course make no sense, bc the mere act of dragnet changes reasonable cause radically. But hell, if you’ve eliminated the Fourth Amendment, who cares? (And of course they emphasize that this program is defunct, which probably means they no longer have to defend the 4th amendment OLC opinion, only prove it was in effect until FAA became law.
As to how to prevent it from standing–this opinion, unlike a lot of the earlier ones, at least TRIES to appeal to law. It’s thicker than most of the crap they’ve thrown before. And while I think they’ve probably added a smart lawyer to try to thread this needle, I also think the lawyers’ response that this is a bunch of hokum suggests that Walker, too, will see this as a bunch of hokum.
So I’m with bmaz (who I assume is still there), believing that Walker will say, “This is hokum.” And their case only gets worse as these three come to collide.
I also wonder whether Walker has held off on al-Haramain for this filing, to make sure he accounted for all active chess pieces when he wrote his ruling(s).
Still here and, yes, still there. Quite frankly, I am not as alarmed by this as Glenn and AL. The crux of the defenses posited by the government in Jewell really is the same as previously made out in the various cases, it just looks shocking because they are more coherently written and pled, and they have suddenly inserted the magic term of art words “sovereign immunity”. Well, first off as Glenn extremely briefly notes, this action is pled differently as to party defendant liability, so this is where you would expect to see those words (even though as Mary notes @7 it is freaking lame). Secondly, as said previously, it is the same attitude and position effectively staked out before. Disturbing, yes; but mostly it seems they are mostly just moving the food around on the plate and people are getting all wigged out that there is suddenly a new meal before them. There isn’t.
Think like a weasel: ‘indiscriminately’ maybe should have been ‘in a discriminating manner’; ‘collected’ maybe should have been ‘recorded’; ‘millions’ should maybe have been ‘billions’; ‘people’ should maybe be ‘any person or persons’.
They said a lot, but clearly did not say they weren’t spying on Americans.
I think the whole Chase thing is just a diversion to keep Marcy off of the trail on warentless wiretapping. Fortunately for us she can walk and chew gum at the same time.
Re: the 2712 argument (that it should only apply if there are improper public disclosures) I think that’s pretty laughable. Congress knows how to use language of limitation and did use that language. The limiter on 2712 is the wilfulness of the violation of FISA, not how info obtained in violation of FISA is used.
Second, what is involved in “improper” disclosure and is that somehow severable from impropoer USE and improper seizure, search and retention? IF so, how and where is Congressional intent to make it so? And even if it were so under FISA, could it be so under the Constitution? After all, spying on US citizens, on US soil, without probable cause and without a warrant is NOT A SOVEREIGN POWER under our Constitution. It’s an ultra vires act. You don’t have immunity even under a workable absolute immunity theory for ultra vires acts – the memory of man runneth not to the contrary.
But in any event, there are a boatload of ways other than public disclosure that gov can misuse improperly obtained information. As we’ve seen with Padilla, it can use info to simply disappear a US citizen without oversight into gov detention, although such is just as Constitutionally prohibited as the illegal surveillance was (I guess if they don’t publicize the info on who they’ve disappeared they have immunity from that as well ????) It can be used for detention where Constitionally prohibited abuse and attainder can ensue. It can be used to target other surveillance. It can be laundered for use in criminal proceedings where it is still not directly publicized. It can be used to target other Americans in America for other illegal surviellance and other actions.
It can be improperly stored so that access is “involuntarily” given to any number of unauthorized sources – from hackers to criminal gov employees – who would not have had access but for the improper seizure and retention. It can be used to circumvent court orders. It can be used by rogue members of gov for blackmail (at the heart of which is a non-public element) It can be used for the purpose of chilling and quelling dissent or creating criminal acts of whole cloth by insertion of agent provocateurs into meetings of Quakers. It can be used to improperly target a person for increased surveillance or review by other agencies – using the inherently improper prosecutorial tactic of targeting a person, then finding or creating a crime to charge.
It’s just nonsense IMO. Congress did waive immunity by establishing a statutory recovery (and accompanying felony charge options) but they did set a bar. That bar was proving that the action was “wilful.” That will be a big enough hurdle – to also claim that there is some invisible ink limitation is silly. And let’s face it – the whole reason for a statutory dollar amount for recovery is, like for other similiar statutes, to prevent a plaintiff from having to go into the whole rigamorole of proving damages.
You know why you set statutory damages? Because you are saying that damages are IMPLIED BY THE ACT ITSELF – they don’t need further proof of nickels and dimes. Obviously, if gov improperly publically used the info in a way where large direct damages could be proven, it would probably be looking at something more than a statutory recovery claim – it would be looking at a Bivens type of Consitutional action. Congress has said a plaintiff doesn’t have to prove damages to get the satutory recovery – that pretty much shoots the “improper use” argument in the foot IMO.
There is a wilfulness limiter though.
I like the notion that storage is an improper use. After all, if they data mine your data, then it is a kind of disclosure. Plus that’d get to their bogus claims that they’re minimizing this.
Look carefully at the way redefine ‘content’ in the brief. That is not the definition used in FISA. This is integral to the bait and switch they are pulling on the dragnet part of the TSP.
5 – that is a part of what is very infuriating and it may go to the updated filings (where they may be backpeddling on the prior assertions to the court that there was no dragnet) If so, they are now saying “we know, but you can’t say and they can’t know unless you say, so they go home” It’s just bull.
Remember, though, that Digg-Taylor did not rule on the dragnet claim when she ordered “the program” halted. Maybe for this reason. Maybe she viewed it as “ok” to dragnet for foreign communications(something even a very large basket warrant wouldn’t get you even if the court had jurisdiction), but if that dragnet took in US citizen communicaitons then by her ruling on the first part (listening in on calls involving Americans) she was making it illegal to keep or use those communications to the extent Americans were invovled?
EW – on the “albeit to the targets of the wiretapping themselves” front – the info was also being shared with other agencies and MAY (may not, but may) have found its way in laundered form into other uses in front of FISCt (which would have been in violation of that court’s order and publication to the court if not general publication). When you are passing around among friends and pals in gov – how much dissemination makes it “public” use? If it goes only to the hundreds of thousands of gov employees, but not into the newspaper? If a more limited set, how limited?
There are two elements of the al-Harramain case aren’t there? (I really need to pay better attention to these) Isn’t there both the criminal case against the charity where the issue has come up and also a civil recovery case by the lawyers where they are the plaintiffs/aggrieveds?
See, I think the Diggs-Taylor (which on your recommendation I went back and read in detail, curses, Mary) bracketed that because there was no evidence that overcame state secrets–which is, if I’m not mistaken (though I haven’t re-read Hepting in as much detail) is what Walker said there.
So two years ago, a couple of judges said, “no evidence of dragnet therefore no ruling.”
But they’re saying it to a judge who is in the process of making a ruling that almost certainly partly pertains to dragnet.
As to two aspects of Al-Haramain. Yes. In fact, I think there are three. The civil suit on wiretapping. A civil suit on the asset freeze. And the criminal case stemming from money laundering evidence probably gathered legally (though who knows what happened in between). Frankly, the second suit may be one of the reasons they withheld dragnet data, if they did.
WO
Agree–that’s why I think they’re parrotting a Yoo memo that works backward off pen data, or something like that. Though if you want to do a diary focusing on this, then I can go beat up JPMChase some more…
10 – I really think what has to kill them on that is the fact that Congress anted up statutories. That’s the point of statutory damages, so you don’t have to show an improper use and resulting direct damage – the action itself generates the damages. If Congress had intended that you had to show actual use and actual damages they wouldn’t have opted for statutory damages.
Also, if you look at the Church Commission and Watergate and Keith case backdrop to FISA, it’s clear that many of the things that were causing the biggest outrage had nothing to do with gov publically using improperly acquired info – it was gov having it at all. That’s why people were given the right to access the, until then covert, files being kept on them. That right wasn’t premised on gov publically using the info – it was premised on the knowledge that gov obtaining such info was chilling and improper in and of itself.
No shit; the term per se damages comes to mind. No clue why……
You is, intrinsically, perceptive?
Or, some “things” are, by and of themselves, when known, offensive to reason, conscience, and even to the notion of a purported “democracy”?
How malleable, how plastic the “rule of law” appears to become when tyrants loosen the wiles of “clever” lawyers who would happily, for a mere piece of silver or a pathetic footnote, bend and twist the law to the momentary whims of unconstrained lust for absolute power and control(and perhaps, now, quite beyond any restraint, short of a serious, and very unlikely, citizen’s revolt) while always masquerading as an appropriate, patriotic and righteous, exercise of “war-time powers”.
An “endless war” provides endless opportunity for such usurpation. That almost the entire Political Class is willingly complicit in this assault upon the Constitution and, ultimately, upon the “people” themselves, is increasingly evident to thoughtful observers, everywhere in the nation.
As the “news” drearily notes,on a daily basis, other professions, beyond the legal profession, have not behaved well these recent years. However, it is the efforts and endeavors of certain,arrogant lawyers, lacking both prudence and moral compass, which these other professionals, believe and are (easily?) convinced will shield them, personally, from any serious “consequence”, and thereby, from justice.
The law becomes the instrument of its own demise, only through the “work” of those who claim to practice it as a profession, but long before it succumbs, the law, when so abused, becomes first, a joke and a perverse parody of itself, and then, something which is despised and hated, a fundamental means of oppression and destruction. And then … King John, who, as you will recall, was forced, on a certain little island in the Thames, to affix his seal to a certain ‘document’, has the last laugh and rulers, even Presidents, may do as they please, since none may gainsay them.
It is really a good bit of “law” that is on the line, here.
About eight-hundred years’ worth …
Once again, I doff my cap to all those fine and perceptive lawyers (and a certain non-lawyer) who gather here and patiently guide the rest of us through the “muck work” of understanding just what it will take to clean up this particular “stable”. You do your profession great honor.
It needs it.
DW
13 – that makes sense too and my thoughts on the “update” were the same as yours – that they were now fessing up to dragnets that they had previously denied. Maybe what is taking Walker so long is trying to decide on a way around classification to use for sanctions for fibbing to the court?
Of course there is that Special Prosecutor option Sullivan is using …
The civil suit on wiretapping also includes (or maybe is limited to?) the lawyers directly, right?
Someday I need to go back and read or re-read all this. To be honest, I never thought Walker would be this committed with it and I thought the 9th was a bad circuit too, so I didn’t do much more than read the newspaper clippings. I really thought the 6th might have been a shot so I followed that more.
Now that its all so complex with so many cases and claims, it’s hard to rely on “oh yeah, I think I remember”-s.
Al Haramain? I think the key US persons are the lawyers (presumably because that avoids any claim that they were just wiretapping terraists and keys on US citizens). But I understand al-Haramain to be named too–probably because of the aforementioned ties to the other civil suit and criminal case.
IM(NAL)O, I linked to a bunch of the key filings in this post–which goes to a lot of the exhibits as well.
OT: sysprog just put this in comments at Glenn’s thread, from a transcript linked by McClatchy. This is Judge Emmet Sullivan speaking on the Batarfi v. Rumsfeld case:
Hmmm, just how high is “the top”? Holder?
No. Sullivan and Holder are old friends and Holder, at least to Emmet Sullivan anyway, is the one guy in the DOJ that has actually done the right thing. My guess is the “top” people involved in the Stevens prosecution he already had in his sights; i.e. the prosecution leadership and PIN head during that time (Welch i think?).
Yeah, I just found that friendship between Sullivan and Holder right after putting the comment up. He was really riled up if you read more of the transcript.
What I want to know is when the fook our Federal judicial system is going to take the logical “bull by the horns” and get over their timidity regarding the Executive Branch’s “State Secrets” privilege BS and start with the proposition that classifying criminal acts as a secret is not allowed, and that the presumption in a plaintiff’s complaint must be first to determine whether a crime has been committed.
IMHO, the Federal Judiciary (including that august body, the in-the-tank SCOTUS) have effectively made the rules back-asswards.
Their presumption that when the Executive Branch invokes the State Secrets privilege, it must be deferred to is pollyannish and naive. These invocations have also been repeatedly shown to be duplicitous, if not an outright lies.
Does the Federal Judiciary not learn from fookin’ experience? Do they not understand basic human nature, these judges who convict 10’s of thousands of people every year?
In what alternative universe do these judges live in?
OK – I was somewhere where I caught a little Olberman in the background and that changed my mind about what was being argued. So I after I got home a few minutes ago I pulled up the brief in Jewel
http://www.eff.org/files/filen…..dobama.pdf
and while I don’t think what I posted before necessarily applies that well to what they really have going on, it doesn’t change where I end up in the end, on FISA at least.
I don’t think 2712 does anything to 50 USC 1810 (the FISA civil recovery) 1810 provides recourse for anyone who “who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title” So the plaintiff set for 1810 includes people who were subjected to electonric surveillance in violation of the act or people “about whom information” from surveillance is used in violation of Section 1809.
Section 1809 provides:
(
So 1809 is basically a criminal actions provision and allows for a criminal penalty for surveillance or use of surveillance except as authorized by staute. And 1810 provides for civil actions and penalties to track the criminal ones. All of those acting “under color of law” which pretty much explains what Congress thought of the Sovereign Immunity issue.
What 2712 does is to ADD ANOTHER CAUSE OF ACTION, separate from 1810, for violations of the prohibitions in 50 USC 1806(a), 1825(a) and `1845(a). Those are the provisions about 1806(a) use of information from electronic surveillance AUTHORIZED under FISA; 1825(a) use of information from physical searches AUTHORIZED by FISA; and 1845(a) use of information from pen register or trap and trace devices installed pursuant to FISA authorization.
So what you have is 2712, which gives a cause of action for information properly acquired under FISA (electronic surveillance, physical search and pen reg/traptap mechanisms)but used in violation of minimization order or the like Which makes sense bc 2712 is part of the STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS chapter
1810 remains the cause of action for being surveilled in VIOLATION of FISA and for use of info obtained in VIOLATION of FISA.
What Gov is arguing is that while there is a waiver of immunity for 2712 actions, those kinds of “misuse of info in violation of minimization orders” claims are not alleged and they are then, kind of unbelievably to me, basically arguing that 1810 isn’t for gov and gov employees – that there’s no waiver of soverign immunity for an 1810 action. Keep in mind that an 1810 action almost has to be against gov actors (it ties to the 1809 color of law criminal actions for one thing – also pretty much only Gov can act under FISA so only Gov can be acting in violation of FISA – FISA applies to GOV in Gov’s collections! sheez louise who else do they think Congress contemplated as a defendant?) It is very clear from drafting and background that Congress realized that the same AG who may have been involved in violating FISA (as in the pre-FISA Keith case, where the AG was responsible for the illegal surveillance)is not likely to assert criminal actions against himself and that’s pretty much why there are civil recovery provisions – to protect an aggrieved person if gov won’t pursue criminal claims
In any event, it’s pretty bizarre to claim there’s no intent to allow gov recovery in an 1810 action IMO. They make other arguments re: Wiretap Act and ECPA that I don’t know about and I’m to tired to look at tonight but while I didn’t really follow what they were doing before, now that I follow it better it’s a stranger argument IMO. Since only Gov can operate under or violate FISA (no private parties have access to application for FISA orders or are allowed to proceed under FISA) it is flat out weird to say that the waiver isn’t specific enough.
Umm, since FISA only applies to the Sovereign (no one else can apply for a FISCt order) wouldn’t you say that pretty much reveals the intent? Then there’s Section 1801’s definition of “person”
cough.
cough cough.
never mind.
But… isn’t enough that 1809(a) sez “…(1) engages in electronic surveillance under color of law except as authorized by statute; … ” and the (b) defense “…the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.” doesn’t apply?
Can any one explain to me why Obama picks (I know that some of them haven’t been confirmed) in the Justice Department would be protecting Bush/Cheney and adopting their arguments rather than denouncing them and proceeding with investigations into the illegal wiretapping,i.e.restoring the rule of law? Who is the guy who wrote the opinions? Is he an Obama appointee, and can we assume that Holder AND Obama knew about and/or approved the opinion before it was released?
There is a big hole in the US argument.
“At least as AL reads it, the government is erroneously claiming that Congress only waived sovereign immunity in FISA in cases in which the government improperly released information.”
ALL dissemination of information in this case was improper. FISA requires warrants. 4th amendment requires warrants. Every intercept was a violation of well established law and precedent. Each entity, each individual (such as Treasury, FBI, NSA, CIA, etc) who was given intercepts or digests constituted the very act which defeats the sovereign immunity clsim even using their castrated analysis.
see Hmmm @ 28 or 50 USC 1809 itself. Color of law don’t make it legal.
“Now, frankly, I have no idea whether Walker can use his review of documents in the al-Haramain case to give the plaintiffs in Jewel standing.”
Yes, he can. The court can take “judicial notice” of the previously disclosed facts, even if only from “in camera” review.
There is only one way the stop this stuff. If Obama et. al. had simply withdrawn from the case, saying that the positions and arguments were without merit, there would be nothing to go forward upon. With a contested case, taken all the way to the Supreme Court of the Republican Party, they can get a ruling which will bar them from ever doing this stuff again. The honorable way is to make the judges make the tough decision just how badly they will punish this rape of the Constitution.
28 – Oh, it’s plenty everywhere, you’re right. It was pretty late when I got in last night so none of that may have been very coherent. In any event, the plaintiffs (the good guys) have made several claims under several statutes. I haven’t looked at the statutes or their complaint enough to know much about any of them other than the FISA claims.
To give a backdrop, gov and Judge Walker had a go around earlier over poorly drafted legislation that stated the AG “may” drop certain cases – Gov argued that meant the AG “shall” drop cases and there was an exchange where Walker laid out the rules of statutory construction and said look boys and girls, after the first hundred years or so of drafting, Congress figured out how to say “may” when they mean may and “shall” when they mean shall.
Skip to this argument. First Gov goes around saying that there is no Sovereign immunity for the non-FISA claims plaintiffs are making – I haven’t looked at that and don’t know whether they are right or wrong (they tend to not be uber reliable though).
Regarding FISA, under the old FISA scheme, you had Section 1810 which gave a civil, private action against “persons” (which, under FISA’s definitions, specifically includes Fed employees and offficers) for surveilling you in violation of FISA and also for misusing information they obtained while surveilling you in violation of the Act – but it cross referenced 1809 for context. 1809 is the criminal statute, saying it is crime to electronically surveill under color of law (basically -acting ostensibly on behalf of gov) except “as authorized by statute” Not executive order, not military order, but statute. So that is the clarification of what you get under the first part of 1810 – if you were electronically surveilled in any way EXCEPT as authorized by statute, you get to go forward. Not just if your info was misused, 1810 has two prongs, surveilled in violation of the Act (without a warrant) and info obtained from the illegal surveillance being improperly used. Both situations, not just the information abuse.
FISA does make it a defense under 1809 (with a little fuzz on how that applies to 1810) if the statute violator had a warrant or court order (iow, if the court screwed up in the issuance as well).
Still, 1810 left a lot of areas where an individual did not have statutory recourse. For example, for illegal physical searches (as opposed to electronic surveillance) and for situations were gov got a FISA warrant or order and collected pursuant to that order (so the initial collection was proper), but then violated the order or otherwise misused info that was validly gathered.
Enter 2712 (section 223 of the Pat Act amendments, which is codified as 18 USC 2712 and which they confusingly talk about under both references at different times). With 2712, Congress tried to do some “catch all” They stuck it, not in 50 USC 1801/FISA (although it refers to FISA and the part those parts really should be there) but instead in the Stored Wire and Electronic Communications and Transactional Records Access Act (18 USC 2701 et sea).
Unlike 1810 of FISA, which is “merely” titled “Civil Liability,” section 2712/223 is titled “Civil Actions Against the United States” emph added.
Now you can see why I bothered with reciting the earlier squabble from Gov with Walker about “may” v. “shall” and how Gov walked away pissy that he told them Congress knows how to say “shall” when it wants to.
What they do in their brief is to say that 1810 actions don’t exist against the United States because 1810 doesn’t use the words “the United States” anywhere – and nanner nanner nanner Judge Walker, see, 2712 (which also refers to a right of action under FISA) DOES use “the United States” so (insert kindergartners sticking out their tongues) see, just like YOU said, if Congress had wanted 1810 to include actions against the United States they would have said so – they didn’t, so we have immunity.
It really reads, if you know that background, like kindergartners in a red rover game. In any event, the statutory construction rules (as opposed to playground rules) indicate that you do only get to sue the US if it is very clear that the intent is for you to be able to use the US. Is it clear that 1810 and FISA as a statutory whole intend that? Um, I think that’s pretty much a hell yes and Walker has already said that an abiity to sue the USGov is implicit in 1810, so they are asking him to overrule his own prior finding with that argument. Given that 1801 expressly defines persons to include federal employees and officials in their capacity as federal employees and officials, and given the fact that FISA pretty much only applies to the Fed Gov and its the only one who can be gathering info in violation of FISA since no other entity can “comply” with FISA (bc it is only available to the fed gov) it’s like someone was dead set on trying to get a tit for tat in with Walker, like bratty kid arguing with their parent (well, before you said they had to say the exact word and now you’re not making them say the exact word and you like bobby more than me anyway you big meanie).
2712/223 – is a new cause of action for misuse of properly acquired info under certain FISA sections, as well as for gov violations of the WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS chapter (119) of Part I of 18 USC (the criminal code)and for gov violations of the STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS chapter (121) of Part I of 18 USC. It is not really well placed in the Code and it applies two whole chapters of criminal law in toto as well as the specific sections in FISA. Regarding FISA, though, it only applies to the specific “use” sections of FISA that it cross references and those are use of info properly obtained sections that are not governed by 1810.
2712 does have a wilful element (that’s not in 1810) to keep you from being able to sue if someone screws up on their bulk mailing and ends up copying the Chinese gov instead of the FBI office in Beijing IL on your bank account passwords and things like that. But it’s a gap filler for what 1810 doesnt cover and without the ability to sue Gov, 1810 is pretty much meaningless since Gov and Gov actors are really the only possible defendant pool for such an action.
I’m repeating, but it’s such a nanner nanner argument – hey Judge, where’s “the United States” in 1810 – thought you said Congress knew how to say things if they meant them – that goes on to just ignore all the actual rules of statutory construction and skip any effort to apply them, as well as to ignore the internal definitional section of 1801, and the fact that Gov is basically the only one who can violate FISA bc it is the only “person” in the entity sense subject to it.
Anyway – gov doesn’t really even buy their own argument on 1810 – they don’t devote much time to it (bc time devoted would show up how bad the argument is) but they do end up spending a lot of time on 2712 and muddying the water.
@katiejacob #29:
I can’t explain why Obama DoJ staff would make these arguments, other than the political reality that people in powerful institutions tend to protect their power, but the answer to who they are is on the first page of the filing, in the link EW provided in the first paragraph of the post
Someone more familiar than I am with the mechanics of how federal cases are litigated will have to say who among these people is most likely to have drafted the filing and made the arguments.
I note that Douglas Letter is the same guy who told the Ninth Circuit panel two months ago in Mohamed v. Jeppesen Dataplan Inc. that the government’s position on state secrets hadn’t been affected by the change of administration, that the unchanged position had been signed off on by the proper authorities, and did a little Cheney-style threatening of the judges to boot.
Holder, responding to the immediate outcry, attempted to give the appearance that he might not have signed off on it by announcing a review of the govt’s assertion of state secrets privilege in other, future filings.
If Letter was operating without full supervision then (which I doubt, but for the sake of argument), they’ve had all the warning they need, and two months’ time, to surround him with people more reflective of the new administration’s policies. So it’s hard to make the case that this filing does not reflect the new administration’s thinking.
Some of the original crew on the unconstitutional government spying cases (like Hepting) had been
PETER D. KEISLER
Assistant Attorney General
CARL J. NICHOLS
Deputy Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Special Litigation Counsel
ANDREW H. TANNENBAUM
Trial Attorney
It always seemed to be the Keisler/Coppolino show from the press reports on in camera meetings with judges, oral arguments, etc. See e.g., this and this and this [”We do conduct ourselves ethically and adhere to our responsibilities under the rules of ethics,” a Justice Department lawyer, Anthony J. Coppolino, told a federal judge here in a court hearing this month on the issue.]
Now that Keisler is gone (and thankfully not to a circuit court seat) with no real knowledge and as pure spec I’d tend to think it’s Coppolino who is basically charting the course. fwiw.
Maybe he can be a character witness for DOJ’s ethics in the case in front of Sullivan – or on that little item where gov has had to go and correct/update its prior representations to Judge Walker. Or the cover ups of Gov torture. Or the lies about “good faith” on torture and wiretapping. Or the Batarfi ommissions. Or the failure to provide the exculpatory Kurnaz information (pretty much the whole 200 pp file was exculpatory). Or …
Oh well, I guess as long as a DOJ lawyer stands up and says, “the Dept of Justus is ethical” that says it all. Sullivan can ditch his special prosecutor – we have an in court representation from Coppolino as to DOJ’s righteous entitlement to wear their purity rings.
Coppolino has been the litigation lead for quite some time.
36 – It seemed like Keisler was really charting the course before, though (and it was pretty unsurprising that Bush anted him up as the alternative to Mukasey). Obama may have someone charting paths in the same way, but I tend to get a feeling there’s been a default to Coppolino – Obama doesn’t really have a plan imo (just spec) so he’s defaulting and Hertz doesn’ either (spec) so he’s defaulting and that leaves Coppolino as not just handling the lit, but handling the overall tactics and strategy for the Dept. Or that’s what it seems at least – that there’s no real structure coming down on the lit teams “throw stuff at the wall” approach.
There is a current article by Fordham’s Arcilo regarding the creation of fourth amendment, though it seems ancient history in these eTimes. Think I will read that colonial record in parallel with the Jewel MTD; time for a dot chart. I had the same initial impression as @35M, reading the roster of authors. ExParte InCamera, indeed.
Mr. President,
As an American and a former supporter of yours, I am writing to tell you of my deep disappointment and growing disgust for your idea of what constitutes American Justice.
“Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy
Says Court Must Dismiss Jewel v. NSA to Protect ‘State Secrets’
San Francisco – The Obama administration formally adopted the Bush administration’s position that the courts cannot judge the legality of the National Security Agency’s (NSA’s) warrantless wiretapping program, filing a motion to dismiss Jewel v. NSA late Friday.
In Jewel v. NSA, the Electronic Frontier Foundation (EFF) is challenging the agency’s dragnet surveillance of millions of ordinary Americans. The Obama Justice Department claims in its motion that litigation over the wiretapping program would require the government to disclose privileged “state secrets.” These are essentially the same arguments made by the Bush administration three years ago in Hepting v. AT&T, EFF’s lawsuit against one of the telecom giants complicit in the NSA spying.
“President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties,” said EFF Senior Staff Attorney Kevin Bankston. “But with the Obama Justice Department continuing the Bush administration’s cover-up of the National Security Agency’s dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a ’secret’ that cannot be reviewed by the courts, it feels like deja vu all over again.”
In Federal Court Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009
You (by means of your minions) said “PLEASE TAKE NOTICE that, on June 25, 2009 at 2:30 p.m., before Chief Judge Vaughn R. Walker, the Government Defendants sued in their official capacity in this action will move to dismiss certain claims in the Complaint against them pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for summary judgment as to any remaining claims pursuant to Rule 56. The grounds for this motion are that the Court lacks subject matter jurisdiction with respect to plaintiffs’ statutory claims against the United States because Congress has not waived sovereign immunity and summary judgment for the Government on all of plaintiffs’ remaining claims against all parties (including any claims not dismissed for lack of jurisdiction) is required because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege and related statutory privileges.
You sir, do not deserve the office of President. This unconstitutional assault on the civil rights of Americans shows your utter disrespect both for the laws of the nation and for those of us who voted for you. Be assured that I shall do everything in my power as a citizen to see you impeached and tried for High Crimes against the people of the United States of America.
Continuing the illegal spying or torturing would be an actual assault. Do you also consider the taking of a particular legal position to be an assault?
What if there is a strategy at play and you simply don’t see the full intent of this one step? Are you willing to at least pocket the letter until you see the whole sweep of this thing, before deciding?
Further on the topic of Obama/Holder asserting selves at Justice:
Also, for those keeping score: the Senate Judiciary committee has a clear list of who has been confirmed, nominated, and TBD at Justice. Of the list of not-yet-confirmed, three of the AAGs to head divisions cleared the committee on 3/26 and are awaiting a floor vote (Christine Varney, Antitrust; Tony West, Civil; and Lanny Breuer, Criminal). David Kris has been in at National Security since 3/25.
So, although I’ve been harsh on the DoJ’s positions and remain unapologetic about that, it may be that there’ll soon be a bit more real guidance from above from here on out rather than the go-with-the-old-way-no-matter-how-lame-or-outrageous approach we’ve seen so far. Or not, in which case I expect to get even harsher…
Prompt release of the rest of the OLC memos and the OPR report on them would give me optimism about such future improvements. Sen. Durbin shares my WTF reaction to the idea of waiting for the OPR report to be “reviewed” by Yoo, Bybee, and Bradbury. Let ‘em put out their own damned statements at the same time as the report is released. They’re welcome to advance copies to prepare their responses, but since when do former employees under review get to water down the report on their own work?
Yikes, Spokane. Impeachment already, eh? Day 79.
Don’t think I’ll get on that train just yet.
Pelosi sez it will all be fixed when congress reconsiders the PATRIOT Act provisions that are soon to expire. Oh sure.
Well, that’s what we have to demand and put our shoulders behind, ’cause they don’t want to repeal it and it, the whole thing, subverts the Constitution
Definitely worth a read. And I think Pelosi is rather alarmed at this power grab or she wouldn’t have gone on Olbermann.
Gotta go…I’m working. Vale!
Pelosi sez she has confidence in Obama. I wish I had confidence in either.
“Nor does it make it even remotely honorable”; Is what bothers me the most and I imagine most American’s as well if they were informed.
Excellent,well written post.
Exactly. In this case, I don’t recognize the Obama I saw last year in the campaign. I feel betrayed — and that’s not too strong a word.
EW and Emptywheelers –
have been vexed by this since Prof Turley’s assessment last night
– forgive me ( I am reading and re reading the post and comments) is Judge Walker going to rule on this hokum and if so, will the ruling be made public ?
Signed the petition, and just sent this to Chase:
This one I hate to have to do, as it is/soon-to-be-was my airline mileage earning card with United. Perhaps United should hear from us, as well? How many other corporations have their affinity cards with Chase?
Oops. Wrong thread. . .
Anonymous Liberal supposedly wrote:
I am not terribly happy that one has to prove the government has violated the law specifically with regard to oneself before taking a case to court to prove the same.
Isn’t there a case to be made that when the government acts illegally, say in foreign relations with people of some other countries, that each and every American is aggrieved and harmed? Am I not harmed when my government intentionally violates the Constitution of MY nation?
Constitutional Law and government actions go beyond it’s interactions with each of us American persons.
Obama lost my vote in 2012 by his adherence to Bush’s constitution destroying policies. Obama will not be the lesser of 2 evils next election. He will be the EVIL if he continues to subvert our liberties. I voted for him once and the confidence has been terminated. America needs a third and fourth party. The 2 party system allows this tendency to sell out the heart of the party without a concern. I thought Nader was a jerk for running again but at this point he has my vote. If Obama wants my vote, he will need restore liberties BUSH took instead of finding ways to enhance the flame being held underneath the Constitution.
Wow, lots of words, don’t have time to read everything right now *g*
I think Mary has touched on this before
But could the reason they’re fighting this so hard is it’s all CYA because they know they’re guilty as sin and they think millions of us will make Bivens claims?
Heck, I’ll just settle for a “sorry won’t happen again”
Obama is a wimp and won’t fight for whats’s right. Won’t hold anyone accountable or investigate wrong doing. He thinks politics is first come first served. Preserve all that’s wrong so they can do it again. Fix the bad so they can get back to being bad again. He doesn’t care about the people or the country only doing what he thinks is best. Like all politicians they all think they know what’s best. He is being advised by the people who sat back and actually applauded the things that almost ruined the country. We thought we were getting a leader. Boy were we wrong we got a great talker with nothing to back it up.