A Whole Heap of Bad Faith in al-Haramain

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The Obama Administration has filed its latest brief in the al-Haramain case. In its effort to shield the Bush Administration from liability for their crimes, it engages in a whole host of bad faith so as to prevent Judge Walker from actually making a determination that the al-Haramain lawyers were illegally spied on.

 As a reminder, Judge Walker’s January 5 order did three things. First, it answered the question the Appeals Court had remanded the case back to Walker to answer: does FISA, which imposes criminal penalties for illegal wiretapping, pre-empt state secrets claims? Walker answered that question in the affirmative: he reasoned that, if Congress passed a law imposing penalties on the executive for breaking the law, the executive couldn’t very well restrict access to the evidence that provides proof that the executive broke the law. Congress wouldn’t have provided for penalties if it didn’t intend for it to be possible to litigate those penalties.

Next, Walker said he would review the wiretap log that proves the government spied on al-Haramain illegally to see whether it proves the government spied on al-Haramain illegally. Very important: he said he would conduct this review in secret!!

Finally, Walker laid the groundwork for talking about how the case would proceed going forward, if, on review of the document proving the government spied on the al-Haramain lawyers illegally, he determined that the government spied on the al-Haramain lawyers illegally (frankly, I think this was a mistake on Walker’s part, but nevermind). Here’s the most important passage in which he does this:

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed —— that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to classified materials, only by placing and maintaining some or all of its future orders in this case under seal may the court avoid indirectly disclosing some aspect of the Sealed Document’s contents. Unless counsel for plaintiffs are granted access to the court’s rulings and, possibly, to at least some of defendants’ classified filings, however, the entire remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs of due process to an extent inconsistent with Congress’s purpose in enacting FISA’s sections 1806(f) and 1810. Read more →

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That’s Why They Call It “Domestic” Surveillance

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One of my favorite parts in the EFF brief arguing that the retroactive immunity passed by Congress last year is unconstitutional is their response to the telecom brief’s claim that the President has inherent authority over foreign affairs, and so doesn’t need specific details regarding which telecoms should get immunity for having broken the law on President Bush’s orders.

EFF points out that, if this were just about foreign affairs, we wouldn’t be here.

Nor can the standardless delegation of section 802 be justified, as the carriers suggest (Carriers’ Br. at 3-6), by reference to cases involving the President’s exercise of inherent constitutional power over foreign relations with other nations or his inherent power to regulate and control the military forces. First, despite the efforts of the government and the carriers to blur the difference, the President’s inherent powers over foreign relations and the military do not extend to the warrantless dragnet electronic surveillance and interception within the United States of the domestic communications of millions of American citizens who have no connection to any foreign power. The President has no inherent constitutional authority to conduct such activities, as this Court has held, Hepting v. AT&T Corp., 439 F. Supp.2d 974, 1006 (N.D. Cal. 2006); see also In re Nat’l Security Agency Telecom. Records Litig., 564 F. Supp.2d 1109, 1121 (N.D. Cal. 2008), nor to order the courts to terminate litigation challenging such activities.

This is about domestic surveillance, not foreign intelligence, dummies.

Now, we know that the Bush Administration did, at one point, claim its inherent authority tied to foreign affairs extends right into the apartment buildings of average Americans.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

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Funny Telecom Games on Retroactive Immunity

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There are two funny things in the telecom brief in response to Judge Walker’s questions about the retroactive immunity statute. (Here is EFF’s brief and Eric Holder’s.)

Don’t Cite the Statute

First, in spite of the fact that Walker asked the parties to address a specific question about a specific clause of the FISA Amendment Act, the telecom lawyers don’t get around to actually discussing the language of that clause until page 15 of a 17 page brief. There’s a reason for that. Once they do discuss the clause in question, they’re faced with precisely the problem that Walker (and bmaz and Mary) have identified: the language doesn’t tell the Attorney General whether he has to give the telecoms immunity, or simply can give immunity, at his whim.

Here, § 802(a) does not expressly state whether certification is mandatory or discretionary. It provides merely that a “civil action . . . shall be promptly dismissed, if the Attorney General certifies to the district court” that at least one of the five criteria in § 802(a) has been met (emphasis added). The Attorney General cannot submit a certification unless the standards of § 802(a) have been satis-fied, and the word “if” simply reflects that these standards will not be met in every case. But noth-ing in the statute specifies whether the Attorney General may decline to certify after determining that a case is eligible for certification. The statute does not state, for instance, that the decision whether to certify is committed to the “discretion” of the Attorney General. Nor does the statute use permissive language, such as the word “may.”

While Section 802 also does not specify that certification is mandatory, what is critical for purposes of constitutional avoidance is that it fairly admits of that construction. Section 802(e) re-fers to the “authority and duties of the Attorney General” (emphasis added). The use of the word “duties” indicates that § 802 imposes some mandatory obligation on the Attorney General, but the statute does not expressly identify which of the tasks it describes are mandatory. This ambiguity could be resolved by reading § 802 as imposing on the Attorney General a “dut[y]” to certify if he finds the predicate facts, if it were necessary to construe the statute in this way in order to save its constitutionality. Read more →

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Scott Shane’s Love Affair for Dick Cheney and Kit Bond

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The NYT’s Scott Shane presents what pretends to be a comprehensive review of the options for some kind of investigation into Bush era crimes. He reviews four options–a criminal investigation akin to Lawrence Walsh’s Iran-Contra investigation, a congressional investigation akin to the Church Committee, a bipartisan investigation akin to the 9/11 Commission, and nothing aside from currently investigations like the OPR review of Yoo’s and Bradbury’s advocacy on torture.

But there are two very disturbing aspects to his story. 

First, in a review of options for holding what we all know to be Dick Cheney responsible for shredding the Constitution, why would you present such a selective picture of Dick’s own history with efforts to hold Presidents responsible for violating the law?

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.

[snip]

But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

Shane’s claims about Cheney’s views are odd. He bases his characterization on no quote from Cheney, though many are readily available. And his first description–the claim that Cheney’s "precise view" of the Church Committee was that it was really about an "unseemly and dangerous drive to pillory the [Nixon?] administration and hamstring the intelligence agencies"–seems to contradict his later more accurate claim that Cheney believed the Church committee improperly constrained Presidential powers. Which is it? A personalized attack against one administration and the targeting of intelligence professionals or an attack on Presidential power? Or is Shane suggesting that Cheney’s view of any investigation now would be an attempt to pillory the Bush/Cheney Administration, which is a different stance than his prior position regarding investigations of Presidents?

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Developing Arguments about Classified Information in the al-Haramain Litigation

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There have been a number of moves in the al-Haramain suit, some of which I’ll review in more detail when I get back to work in earnest in Monday. But for now, there are three details I wanted to point out that reflect changing ground with regards to classification in the suit, just as the government files an appeal.

The Dead-Enders Admit Walker Didn’t Order Them to Declassify the Wiretap Log

The first comes in this government request for more time to respond to Judge Walker’s order, filed on Friday. In it, the dead-enders reverse a claim they made in January. Yesterday, they said,

In its Order of January 5, 2009, the Court directed the Government Defendants to “review the Sealed Document and their classified submissions to date in this litigation and determine whether the Sealed Document and/or any of defendants’ classified submissions may be declassified, take all necessary steps to declassify those that they have determined may be declassified and, no later than forty-five (45) days from the date of this order, serve and file a report of the outcome of that review.”

They specifically say that the review includes the stuff at issue in this suit–primarily the wiretap log that shows that al-Haramain was wiretapped illegally.

The Government can report today, as we indicated in a filing made on February 11, 2009, that we expect the relevant information at issue in the privilege assertion to remain classified.

Funny. These same dead-enders claimed, on January 22, that Walker had ordered them to get security clearances for al-Haramain’s lawyers so they could have access to the wiretap log, suggesting Walker had already ordered that access.

Second, the Court has held that due process requires that, for plaintiffs’ counsel to litigate the case, they must obtain security clearances for access to certain classified information, including the heretofore Sealed Document, court orders and possibly the Government’s classified filings in this case. Both holdings raise serious questions of law and would subject the Government to irreparable harm. [my emphasis]

The January 22 claim was a total misrepresentation of Judge Walker’s order, so I’m not surprised that the dead-enders are now asserting that they have simply been ordered to do a review–and (with their assertion that the log remains classified) that they retain ability to determine whether the document is classified or not. But the dead-enders have backed off one of their more egregious claims.

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The Push to Publish the OPR Report

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Mike wants Yoo
(photo by Emilyschneider)

I was wondering when this would come out. After all, one of the advantages of having an easily-used journalist like Mikey Isikoff around is that when someone needs to leak something to increase political pressure, they know whom to go to.

So, those who want to make sure the OPR report damning John Yoo and Steven Bradbury is published in its current "very harsh" form will go to Mikey to make sure the report’s conclusions become public.

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

[snip]

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

And in addition to those pushing to make the report public, there are those–speaking in a voice that sounds remarkably like certain lawyers associated with Dick Cheney–attacking the legitimacy of the report.

"OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars," said the former Bush lawyer. 

David! How’ve you been now that you’ve been separated from your man-sized safe?

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Obama Again Supports Bush’s Bogus Stance on al-Haramain, But Partly Punts on State Secrets

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This time in the al-Haramain case.

The argument in this new filing is substantially the same as they made in January, particularly in their misrepresentation of Judge Walker’s approach to classified information. Once again, they suggest Walker has ordered the wiretap log declassified (though they do so less dishonestly than they did in January), when in fact Walker has ordered the government consider what can be declassified.

The Court then held that it would review, initially ex parte, the Sealed Document that was the subject of the state secrets privilege assertion and will then issue an order regarding a factual question at issue in that privilege assertion— “whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA.” Id. at 23. The Order then adds that fully ex parte proceedings under Section 1806(f) “would deprive plaintiffs of due process to an extent inconsistent with Congress’ purpose in enacting FISA Sections 1806(f) and 1810.” Id. Accordingly, the Order “provides for members of plaintiffs’ litigation team to obtain the security clearances necessary to be able to litigate the case, including, but not limited to, reading and responding to the court’s future orders.” Id. The Court’s Order also “specifically rejected” the Government’s assertion that the Executive branch controls access to classified information, see id. at 21, and held that Section 1806(f) “leaves the court free to order discovery of the materials or other information sought by the ‘aggrieved person’ in whatever manner it deems consistent  with section 1806(f)’s text and purpose.”

That phrase, " initially ex parte," suggests that Walker would definitely review the document openly, when he said no such thing (and only required declassification of government briefs going forward). 

That said, there is a very significant difference. This filing defends the state secrets invocation of the past, arguing that the invocation of state secrets in this case has already been ruled to be proper.

The Court of Appeals has previously determined that plaintiffs’ case cannot proceed without critical information that the state secrets privilege was properly asserted to protect—including whether or not plaintiffs were subject to alleged surveillance and, in particular, the classified sealed document at issue in this case.

 And then it accuses Judge Walker of changing his stance regarding the use of the document.

The Court initially reviewed the allegations in the amended complaint to determine whether the case may proceed to Section 1806(f) proceedings. See Dkt. 57 at 2-8. The Court then considered and rejected the Government’s contention that the public evidence cited in the amended complaint was insufficient to establish plaintiffs’ standing to proceed under Section 1806(f) as “aggrieved persons” subject to the alleged surveillance. See id. at 9. In making this determination, the Court decided an issue held open in its July 2 decision: what the standard would be for determining whether the case could proceed under Section 1806(f), see id. at 10-12 (discussing standard applicable under 18 U.S.C. § 3504), and then decided for the first time that it was sufficient for plaintiffs merely to establish a prima facie case of alleged surveillance, see id. at 13.

The balance of the argument, then, focuses on whether Walker made the correct interpretation that 1806(f) trumped state secrets.

I will need to read closer, but I suspect the resolution of this will depend on how far state secrets extends. Does it prevent a judge from assessing evidence ex parte, which is all Walker has ordered (contrary to the misrepresentations of the government)?

Just as interesting, though, is the shift in this filing away from one of privilege, per se, and toward the legal issues themselves. Sure, Obama is supporting Bush’s crappy stance in al-Haramain. Read more →

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Judge Walker Busts A Move: The Legal Foundation For It

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Immediately below, Marcy described Judge Vaughn Walker’s new homework assignment to the parties in the consolidated litigation in the Northern District of California (effectively all cases except al-Haramain and a few others to which "section 802 of the FISA Amendments Act of 2008" are not germane). If you have not read Marcy’s post, and wish to proceed into the legal weeds of this one, I heartily suggest you go back there first.

Okay, as I suggested in comments in Marcy’s post, Judge Walker is looking at the Attorney General option to certify a matter for dismissal pursuant to section 802 of the FISA Amendments Act, and as to said provision:

It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.

Mary went to the same point but, as usual, with a lot more flesh on the bone in her comment:

… the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.

So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion.

Precisely. So, let’s look at what Walker is legally up to here. It is my contention that he has pretty much determined that he is not down with the government’s program in the least, is going to take the bold move of declaring it unconstitutional and, from all appearances, do so on multiple grounds. The one at issue here is the unfettered and infinite nature and scope of the AG certification process under section 802.

First off Judge Walker posits this: Read more →

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Vaughn Walker: Okay Mr. Holder, I’d Like to See YOUR Work Now

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Judge Vaughn Walker, who is preparing to rule on whether telecom retroactive immunity is constitutional, has given the parties a new homework assignment (h/t MD). He has asked for a brief addressing this question.

Nonetheless, section 802 appears to contain “literally no guidance for the exercise of discretion” by the Attorney General. Whitman v American Trucking Assns, 531 US 457, 474 (2001). It appears to leave the Attorney General free take no action at all or to take action to invoke section 802’s protection on behalf of one or more “persons” based on any consideration of his choosing; no charge or directive, timetable and/or criteria for the Attorney General’s exercise of discretion are apparent. The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414,
425 (1944):

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.

Now, I invite the lawyers to correct me, but I think Walker, probably having taken a peek at that document he’ll one day review in the al-Haramain case which proves the Bush Administration was violaing FISA, is likely looking for clarification about what Congress meant when they said the Attorney General had to certify something as legal.

If Congress said the AG had to certify something as legal, he seems to be asking, is the AG doing the will of Congress is he says something is legal when it’s clearly not? Or, were they really asking the AG to make an assessment of the legality of the activity?

That’s my guess, anyway. 

But what I find particularly interesting is this part of the order:

In their supplemental briefs, the parties may paraphrase and/or refer to arguments made in previously-filed briefs, but should not repeat them verbatim.

I think that’s judge politesse for,

Say, Mr. AG, I’d really appreciate seeing some of your original lawyering work on this one, please. I’ve seen what the dead-enders want to give me, and I’m not really interested in seeing their stale arguments rehashed again. Unless, of course, you’re really willing to adopt their completely indefensible position as your own?

Ah. I’m probably reading too much into this. Read more →

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Some Obama Folks Miffed about al-Haramain

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In an article about the anticipated headaches Eric Holder will have once he’s confirmed as Attorney General today, some anonymous Obama figures reveal their thoughts about the last minute al-Haramain filings by Bush dead-enders.

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program. [my emphasis]

None of that, of course, explains what Obama will do once Holder and the rest of his department gets in place. None of it explains why Obama didn’t take a stronger stand when the dead-enders were filing documents in his name. 

But at least some folks in the Obama Administration are watching the dead-enders closely.

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