Holder’s Catch-22 on the al-Haramain Ruling

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Michael Isikoff reports that–as I suspected–DOJ would very much like to accept the Vaughn Walker ruling and be done with George Bush’s illegal wiretap program. But the Department of Justice led by a guy who got paid a lot of money to help Chiquita’s rich white Republican executives avoid criminal liability for their support of a terrorist organization is worried about the significance of paying a civil penalty to al-Haramain, which the government still considers a terrorist organization.

Of all the tricky decisions Attorney General Eric Holder is facing right now, here’s one that has lawyers at the Justice Department really scratching their heads. All things being equal, they would love nothing more than to let stand a federal judge’s recent decision that President Bush’s warrantless wiretapping program was illegal, thereby avoiding further legal skirmishes over one of the Bush administration’s most divisive legacies. But unless they appeal last month’s landmark decision by U.S. Judge Vaughan Walker, the U.S. government may be forced to pay damages into the bank account of one of the plaintiffs in the case: an Islamic charity that has been formally declared a Global Terrorist Organization.

Can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing “material support” to terrorists?

[snip]

… even a symbolic payment to a defunct organization’s frozen bank account could be problematic, potentially undermining a linchpin of the U.S. government’s anti-terrorist efforts.

I think Isikoff misses one important wrinkle to this dilemma, though.

As al-Haramain has made clear from the beginning, what got the organization put on the terrorist list in the first place was probably a conversation in which one of its lawyers mentioned Osama bin Laden’s brother-in-law. It’s likely, in other words, that al-Haramain Oregon is only on the terrorist list because of a conversation that was illegally wiretapped.

Here’s how Vaughn Walker synthesized the argument in his ruling from last January.

On February 19, 2004, the Treasury Department issued a press release announcing that OFAC had blocked Al-Haramain Oregon’s assets pending an investigation of possible crimes relating to currency reporting and tax laws; the document contained no mention of purported links between plaintiff Al-Haramain Oregon and Osama bin-Laden. ¶¶ 30-31.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.) ¶¶ 34-35.

In the telephone conversations between Belew and al- Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit. Id.

In a letter to Al-Haramain Oregon’s lawyer Lynne Bernabei dated April 23, 2004, OFAC Director Newcomb stated that OFAC was considering designating Al-Haramain Oregon as a Specially Designated Global Terrorist (SDGT) organization based on unclassified information “and on classified documents that are not authorized for public disclosure.” ¶ 36. In a follow-up letter to Bernabei dated July 23, 2004, Newcomb reiterated that OFAC was considering “classified information not being provided to you” in determining whether to designate Al-Haramain Oregon as an SDGT organization. ¶ 37. On September 9, 2004, OFAC declared plaintiff Al-Haramain Oregon to be an SDGT organization. ¶ 38.

In a press release issued on September 9, 2004, the Treasury Department stated that the investigation of Al-Haramain Oregon showed “direct links between the US branch [of Al-Haramain] and Usama bin Laden”; this was the first public claim of purported links between Al-Haramain Oregon and Osama bin-Laden. ¶¶ 39-40.

That is, al-Haramain has always suggested that the only evidence that got al-Haramain named a terrorist organization in the first place (and, if I’m not mistaken, distinguished al-Haramin Oregon from al-Haramain Saudi Arabia, which was never designated a terrorist organization) was a series of conversations in which people with ties to Osama bin Laden were mentioned. And those conversations are precisely the conversations that, if this decision were accepted, would be declared illegal.

Of course, al-Haramain should have had an opportunity to challenge whether mentioning Osama bin Laden’s brother-in-law and two clerics is enough to get you declared a terrorist organization. But to allow them to do that, DOJ would first have to admit that’s what they’ve based the claim on in the first place. And that would involve turning over interrogation materials that Walker is about to declare illegal. (And, incidentally, it would reveal one of the things the Bush and Obama Administrations wanted to hide behind their State Secrets invocations in the first place, whether or not the government was listening in on those conversations.)

Perhaps the easiest answer to this “dilemma” would be to take al-Haramain Oregon (which, after all, is defunct) off the terrorist list, and give the organization the measly $200,000 the government would owe it with this ruling. But they can’t do that, because it would be an admission of how dicey their claims were in the first place.

In short, like many of the cases against the detainees at Gitmo, the case against al-Haramain is based on illegal evidence that potentially isn’t strong enough to hold up in court in any case. And as with the detainees, deciding the terrorist designation was wrong would involve admitting that the evidence was illegal and/or weak in the first place.

It’s not just that DOJ would have to pay a defunct organization still designated as a terrorist organization. It would have to pay an organization that is only designated as a terrorist organization because it was illegally wiretapped and therefore couldn’t fight the charges against it.

That’s a nifty little dilemma Bush’s illegal counter-terrorism programs have left DOJ with, huh?

Government Continues to Avoid Court Rulings on Domestic Surveillance

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Three significant pieces of news, taken together, show that the Courts continue to chip away at Bush-and-now-Obama’s domestic surveillance programs.

FISA Court Encourages Government to Stop Collecting Some Metadata

First, and potentially most importantly, the FISA Court, after learning more about what the collection of telecom metadata entailed, raised some concerns with the government, leading them to voluntarily stop collecting it.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently “got a little bit more of an understanding” about the NSA’s collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court’s concern.

[snip]

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Curiously, Adam Schiff is quoted in the story specifically addressing VOIP.

Al-Haramain Agrees to Vaughn Walker’s Judgment

Next, on Friday, al-Haramain responded to Vaughn Walker’s tidy judgment on FISA–which I have argued was crafted to be rather tempting to the government–by basically accepting his judgment and backing off any further constitutional claims associated with the suit. In their proposed judgment, al-Haramain basically:

  • Asks for the $61,200 in damages defined by the statute ($20,400 for each of three plaintiffs, which comes from $100/day for each day of violation)
  • Asks for $550,800 total in punitive damages ($183,600 for each of three plaintiffs)
  • Asks for legal fees (bmaz estimates these might run to around $3,375,000)
  • Dismisses all other constitutional claims and claims against Robert Mueller as an individual
  • Requests a declaration that “the defendants’ warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA”
  • Requests an order that the government purge all information illegally collected (except that which would be exculpatory)

In short, al-Haramain is basically saying, “gosh what a nifty solution you’ve crafted, Judge Walker. Let’s see what Eric Holder thinks of it.”

Now, the government might have some complaint about the particular description of its illegal wiretapping. And I’m betting they’re going to have operational troubles with purging the illegally collected information, particularly if it means purging a lot of poisoned fruit along with it. But I still do think the government will try to find a way to accept Walker’s nifty solution.

Government Backs Down in Request to Access Stored Emails without Warrant

Finally, in another case in Denver, the government backed down a request that Yahoo turn over the stored emails of one of its customers without a warrant. Yahoo, EFF, and a bunch of other privacy advocates had made a stink, and rather than face an adverse judgment, the government backed down.

In the face of stiff resistance from Yahoo! and a coalition of privacy groups, Internet companies and industry coalitions led by EFF, the U.S. government today backed down from its request that a federal magistrate judge in Denver compel Yahoo! to turn over the contents of a Yahoo! email user’s email account without the government first obtaining a search warrant based on probable cause.

The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!’s opposition to the government’s motion, agreeing with Yahoo! that the government’s warrantless seizure of an email account would violate both federal privacy law and the Fourth Amendment to the Constitution. In response, the Government today filed a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government’s motion.

As EFF points out, the government has repeatedly backed down when challenged on this type of collection and related collection.

This is not the first time the government has evaded court rulings in this area. Most notably, although many federal magistrate judges and district courts have ruled that the government may not conduct real-time cellphone tracking without a warrant, the government has never appealed any of those decisions to a Circuit Court of Appeals, thereby preventing the appeals courts from ruling on the issue. Similarly, a federal magistrate judge in New York, Magistrate Judge Michael H. Dolinger, has twice invited EFF to brief the court on applications by the government to obtain private electronic communications without a warrant, and in each case, the government withdrew its application rather than risk a ruling against it (in one case the government went so far as to file a brief anticipating EFF’s opposition before finally dropping the case).

Which I think illustrates the common theme here. While we don’t yet know what the Obama Administration will do in the case of al-Haramain, in the two other cases, they have backed off of surveillance activities to avoid any adverse ruling from Courts. That’s partly a testament to their discomfort with their own legal position with regards to these activities. But it’s also an indication that they’d rather continue their programs in some lesser form than risk having a Court declare the whole program unconstitutional.

If I’m right about all this, it means the government is balancing facing an Appeals Court on FISA and State Secrets, versus paying less then $4 million to close the chapter on Bush’s most egregious form of domestic surveillance while still protecting executive programs that engage in similar collection.

Reading Tea Leaves on Warrantless Wiretapping

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Sorry I’ve been distracted all day. And yes, I will try to comment on the surprise news that Steven Kappes will be leaving the CIA next month later this evening.

But in the meantime, I wanted to look at this exchange between Arlen “Scrapple that used to be Haggis” Specter and Eric Holder on the recent al-Haramain verdict.

SEN. SPECTER: Mr. Attorney General, there will be another opportunity to test the constitutionality of the warrantless wiretaps through the appellate process and, hopefully, to the Supreme Court of the United States. And from the decision made by Chief Judge Walker recently in the San Francisco case, holding that the warrantless wiretaps were unconstitutional, saying that the requirements of the Foreign Intelligence Surveillance Act precluded the warrantless wiretaps, that there had to be probable cause and a warrant.

There was an opportunity to have a review by the Supreme Court of the United States in the case arising out of Detroit which federal court there declared the warrantless wiretaps unconstitutional. The Sixth Circuit cited there was no standing. I thought the dissent was much stronger than the two judges in the majority. Well-known that standing is frequently used as a way of avoiding deciding tough questions, and Supreme Court of the United States denied cert.

So at this point, after a lot of specification, a lot of discussion, we do [not?] know, dispositively, whether the president’s power as commander in chief, under Article II, justifies warrantless wiretapping or whether the explicit provisions of Foreign Intelligence Surveillance Act govern.

Would you press to have the case coming out of the San Francisco federal court go to the Supreme Court for a decision there?

ATTY GEN. HOLDER: We have really not decided what we’re going to do at this point with the decision that was made by the judge. The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods. And a determination as to what we are going to do with the adverse ruling that we got from the chief judge — the district court judge, has not been made as yet. We are considering our options.

SEN. SPECTER: What do you think?

ATTY GEN. HOLDER: (Laughs.) Well, I think that I haven’t made up my mind yet. I think that we have to see what the impact will be on this case with regard to a program that I guess ended, I think, 2007, 2006.

My view is that, to the extent that — I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

So I think that we will have to consider what our options are and try to understand what the ramifications are of the judge’s ruling in the Al-Haramain case.

Read more →

What Happened to that OTHER OPR Report?

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Remember the OPR Report? No, not the OPR Report on John Yoo’s laughably bad torture memos. I’m talking about the OPR Report on John Yoo’s even worse memo(s) authorizing domestic surveillance. The Torture OPR Report notes that it was the domestic surveillance memo, and not the torture memos, that first clued Jack Goldsmith into how dangerous John Yoo was.

Because of the problems with Yoo’s NSA opinions, Goldsmith asked Philbin, who was familiar with Yoo’s work at OLC, to bring him copies of any other opinions that might be problematic.

And it was OPR’s investigation into the domestic surveillance memo–not the investigation into torture memos (as far as we know)–that George Bush tried to spike by refusing investigators the clearance to conduct the investigation.

Last we’ve heard official mention of this OPR investigation was last July, in the combined IG Report on warrantless wiretapping. At that point, we know, the investigation was not yet complete.

Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.

Since then we’ve heard nothing.

It turns out, I asked DOJ a week and a half ago about the report and got a “Oh, let me do research.” I did a follow-up last week (as it happens, on Friday, the day Dawn Johnsen withdrew her nomination) and got a very different response: “We don’t comment on OPR investigations.” Now, perhaps that’s just a prudent response after all the accusations Yoo and Bybee made that OPR was leaking information on the Torture memo investigation.

Still.

I find the secrecy around the domestic surveillence OPR Report all the more interesting given that DOJ still hasn’t decided what to do about the 2006 White Paper used to justify warrantless wiretapping after Jim Comey and Jack Goldsmith realized the inherent powers argument failed. Mind you, David Barron’s OLC passed what appears–from Glenn Fine’s description–just as troubling as those two earlier memos back on January 8, 2010. So maybe it doesn’t matter. Maybe we’re doomed to have OLC recklessly authorize illegal wiretapping of Americans in the dark of night, no matter who’s in charge there.

Nevertheless, it does seem worthwhile to remember that John Yoo was investigated not just for his egregious torture memos, but also for saying the President didn’t have to follow the law–even the laws saying that Presidents can’t wiretap Americans.

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

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It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Read more →

Why DOJ Is Likely to Accept Vaughn Walker’s Ruling

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As I posted earlier, Judge Vaughn Walker ruled against the government in the al-Haramain case today. Basically, Walker ruled that al-Haramain had been illegally wiretapped and the case should move to settlement judgment (corrected per some lawyer).

But there’s more to it. I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won’t get–unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets–is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

There is little risk that other people will sue on the same terms al-Haramain did, because few, if any, other people are going to be able to make the specific prima facie case that they were wiretapped that al-Haramain did. Few people are going to be able to point to public FBI statements and court documents to prove their case, as al-Haramain was able to. And anyone who does sue will end up before Walker, who has dismissed all other suits precisely because they lacked the specific proof that they were wiretapped that al-Haramain had. Plus, with the extent to which Congress has already gutted FISA, there’s little risk someone could sue going forward.

Since Walker dismissed the suit against Mueller, the government doesn’t have any individuals on the hook still for this illegal activity.

And, finally, by accepting this ruling–which argues that only if Congress has provided very specific guidance about court review, will a law automatically trump State Secrets–the government preserves the status quo on State Secrets largely intact (unless and until the full 9th Circuit panel upholds the Jeppesen decision, but I have increasing doubts they will).

So you decide. If you’re President Obama and Attorney General Holder, both of whom have already said that the illegal wiretap program was illegal, which are you going to choose? Accepting a ruling that says it was illegal, in exchange for keeping the details of that illegality secret? Or the invitation to take your chances with an appeal?

Breaking: Judge Walker Grants Summary Judgment Finding Gov’t Liable Under FISA

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Short version: al-Haramain wins!

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.

In FISA proceedings, 50 USC § 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.

Walker goes onto explain that, particularly given the government’s refusal to use the means by which Congress dictated that such review should be done, the government has a burden to prove it had a warrant to wiretap al-Haramain–a burden it has not met.

Plaintiffs have made out a prima facie case and defendants have foregone multiple opportunities to show that a warrant existed, including specifically rejecting the method created by Congress for this very purpose. Defendants’ possession of the exclusive knowledge whether or not a FISA warrant was obtained, moreover, creates such grave equitable concerns that defendants must be deemed estopped from arguing that a warrant might have existed or, conversely, must be deemed to have admitted that no warrant existed. The court now determines, in light of all the aforementioned points and the procedural history of this case, that there is no genuine issue of material fact whether a warrant was obtained for the electronic surveillance of plaintiffs. For purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs.

Now, the government did present three reasons why it should not have to present evidence to defend itself. But much of that argument amounts to stating “we disagree with Judge Walker’s decision that FISA trumps State Secrets.” Not surprisingly, then, Walker gets a little snippy when explaining why the government’s arguments about why they shouldn’t have to prove they didn’t wiretap al-Haramain illegally fail.

Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.

[snip]

In an impressive display of argumentative acrobatics, defendants contend, in essence, that the court’s orders of June 3 and June 5, 2009 setting the rules for these cross-motions make FISA inapplicable and that “the Ninth Circuit’s rulings on the privilege assertion therefore control the summary judgment motions now before the Court.” Doc #672/105 at 6. In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin.

And that’s without even looking at Bush’s claim that Congress can’t tell the President he can’t wiretap Americans.

As I said: the government refused to engage on the merits, al-Haramain made a sufficient prima facie case, so the government has basically conceded the case.

[Note, this post has been updated several times.]

Royce Lamberth: Let’s Make a Deal

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Royce Lamberth appears to be having a split the baby moment in the Richard Horn suit.

As you recall, back in the Clinton era, a DEA official sued the government for illegal spying on him. He alleged that State and CIA conspired to thwart his efforts to cooperate with the Burmese government on drug eradication by spying on him and using information collected to trump up reasons to get him ousted from his post. The suit had been drawing on for years, most recently through the improper invocation of state secrets. Judge Royce Lamberth went ballistic last year when he discovered the CIA and DOJ had been lying to sustain their invocation of state secrets. As predicted, in response DOJ decided to settle the suit, not least because any decision on this case was going to imperil their effort to hide behind state secret to get away with illegally wiretapping al-Haramain. Since last fall, Lamberth has been deliberating whether to let them settle the suit, and/or whether he should go on with investigations into the government’s misconduct in the suit itself.

As Josh Gerstein reports, Lamberth has proposed an implicit deal with the government: if it will treat the case as it would have under Eric Holder’s new state secrets policy, he will allow the government to settle. His proposed deal is this:

  • Al-Haramain will be permitted to submit their amicus curiae brief opposing the vacating of Lamberth’s earlier opinion in the suit, but he will allow the settlement anyway (see this post for more background on the issue)
  • Horn will get his $3 million settlement and taxpayers will, as they did with the Hatfill settlement, pay to make up for the misconduct of government officials
  • DOJ will refer the misconduct of the CIA and DOJ in this case to the Inspectors General of those agencies
  • DOJ will also alert Congress to details of the case, in particular regarding “disturbing evidence” from a sealed motion “indicating that misconduct occurred in the Inspector General’s Offices at both the State Department and the Central Intelligence Agency”

Aside from the injustice (which Lamberth is bugged about, but not bugged enough to refuse the settlement) that taxpayers have to pay because government officials engaged in misconduct, this proposition will pretty much guarantee that the government gets away with its scheme to avoid legal consequences by invoking state secrets.

Plus, there’s a tremendous level of irony here. Some of the documents over which the government had invoked state secrets were IG Reports. Yet Lamberth’s proposal to make this right is to do more IG Reports? And while the CIA Inspector Generals has turned over at least twice since the misconduct in question, Lamberth is literally proposing that having CIA’s Inspector General investigate wrongdoing by CIA’s Inspector General will somehow make this right.

Update: I’ve been informed that there is a practice of having other IGs investigate when an agency’s IG is accused of misconduct.

DOJ Still Deliberating about 2006 White Paper

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As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

German Constitutional Court: Don’t Let America Spy on Germans

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A number of you have passed me this breaking news from Germany:

Vast amounts of telephone and e-mail data held in Germany must be deleted, the country’s highest court has ruled.

The constitutional court overturned a 2008 law requiring communications data to be kept for six months.

The law – designed to combat terrorism and serious crime – required telecoms companies to keep logs of calls, faxes, SMS messages, e-mails and internet use.

But nearly 35,000 Germans lodged complaints against it, arguing that the law violated their right to privacy.

Responding to the thousands of formal complaints, Germany’s constitutional court described the law as a “particularly serious infringement of privacy in telecommunications”.

Not only will this make it harder for Germany to spy on its own citizens, but it is further resistance, in Europe, to the US demand (embraced equally by the Obama Administration as the Bush Administration) that all communications be accessible for surveillance.

Scribe has a diary over at TalkLeft working from German sources, including the news that this is the biggest class action suit in German history.

The judgment from Karlsruhe concludes (places the period to) the biggest class action suit in the history to date of the Federal Constitutional Court.   Read more →