State Secrets Non-Compromise Compromise Architect to Replace Kagan

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The great news just keeps coming.

Remember the “new” state secrets policy DOJ announced last year? It basically amounted to a promise that the Attorney General would review any invocation of state secrets to make sure such an invocation was really really secret rather than just sort of secret but really embarrassing, along with a promise that an Inspector General (but not a court) would investigate in case of wrong-doing (at the time, some of the existing state secrets invocations had already been investigated by IGs). Here’s how I described the “new” policy when it was announced.

What the “new” state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the “new” policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s “new” policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the “new” policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.

Well, the guy Obama plans to replace Kagan with is the architect of this “smoke and mirrors” policy.

The White House is poised to name Don Verrilli, an associate White House counsel, as solicitor general after Elena Kagan is confirmed to the Supreme Court. Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department’s new state secrets doctrine guidelines.

[snip]

Verrillii’s trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs.  But he’s got the trust of Holder, Bauer, and President Obama.

I can’t wait to see what Obama has in store next to whittle away at the rule of law.

The Brits Refuse Secret Trials Even as Obama Doubles Down

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As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).

Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.

British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.

The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.

[snip]

In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)

How quaint the old country looks from this distance!

Government Remains Belligerent in al-Haramain; Will Fight On

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Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going Read more →

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 →

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.

China Google Attack and the Terrorist Surveillance Program

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thumb.phpAs you may know, there was quite a lot of buzz this week about Google potentially leaving China over the hacking of Google’s system. From MSNBC/Reuters:

Google, the world’s top search engine, said on Tuesday it might shut down its Chinese site, Google.cn, after an attack on its infrastructure it believed was primarily aimed at accessing the Google mail accounts of Chinese human rights activists.

Unlike ordinary viruses that are released into cyberspace and quickly spread from computer to computer, the type of attack launched against Google and at least 20 other companies were likely handcrafted uniquely for each targeted organization.

It appears to be a problem that is quite deep according to an in depth article in MacWorld:

Google, by implying that Beijing had sponsored the attack, has placed itself in the center of an international controversy, exposing what appears to be a state-sponsored corporate espionage campaign that compromised more than 30 technology, financial and media companies, most of them global Fortune 500 enterprises.

The U.S. government is taking the attack seriously. Late Tuesday, U.S. Secretary of State Hillary Clinton released a statement asking the Chinese government to explain itself, saying that Google’s allegations “raise very serious concerns and questions.”

But the Macworld article goes on to explain why the United States government may be taking this much more seriously than they let on:

“First, this attack was not just on Google. As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses – including the Internet, finance, technology, media and chemical sectors – have been similarly targeted,” wrote Google Chief Legal Officer David Drummond in a Tuesday blog posting.

“Second, we have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists.”

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

“Right before Christmas, it was, ‘Holy s***, this malware is accessing the internal intercept [systems],'” he said.

Uh, “account information”, “subject line”, “search warrants” and “intercept systems”. That ring a bell? This appears to indicate that the state-sponsored Chinese hackers have hacked into the portion of the Google infrastructure that deals with government warrants, intercepts, national security letters and other modalities pertinent to the Terrorist Surveillance Program. That, if true, could be very problematic, one would think.

Now, this is based upon information and belief, but it is my understanding that Google doesn’t store any gmail data in China, which means that this search warrant/intercept machine was located in the US, likely in Mountain View California

That is, if Google’s Mountain View HQ search warrant search interface/computer was hacked, we are probably talking about the same computer used by the Google Legal Department to perform queries in response to DOJ warrants, subpoenas, national security letters, and FISA orders.

Yeah, if that is the case it could be a problem.

Obama Holding Off on Declassification Order Bush Made

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Steven Aftergood reports that a looming December 31, 2009 declassification deadline–imposed by Bush’s Executive Order on classification–presents a big dilemma for the Obama White House. Obama’s been preaching openness. Yet Bush’s EO says that documents that involve multiple agency classification interests will automatically be declassified at the end of the year. And the agencies that haven’t gotten around to reviewing some documents that fall under the EO are balking. And so Obama’s trying to push through a new EO quickly.

Development of a new executive order on classification of national security information is now proceeding at an accelerated pace in order to preempt a deadline that would require the declassification of millions of pages of historical records next month.

A revised draft executive order was circulated to executive branch agencies by the Office of Management and Budget on November 16, with agency comments due back today, November 23.  A final order is likely to be issued by the end of this year.

There is an incentive to complete the development of the executive order before December 31, 2009 because of a deadline for declassification of historical records that falls on that date.  Under the current Bush executive order, classified records that are at least 25 years old and that have been referred from one agency to another because they involve multiple agency interests are supposed to be automatically declassified at the end of this year.  (See E.O. 13292, section 3.3(e)(3)).

But in order to meet this December deadline, several agencies would have to forgo a review of the affected historical records, which they are unwilling to do.  And so it seems they will simply be excused from compliance.  But in order to modify the deadline in the Bush order, it will be necessary to issue another executive order.  If the comprehensive new Obama order on classification policy (which would assign processing of such records to a National Declassification Center that does not yet exist) is not ready for release by December 31, then another stand-alone order would have to be issued, canceling or extending the looming deadline.  And officials are reluctant to issue such an order since they say it would be awkward for the avowedly pro-openness Obama Administration to relax or annul a declassification requirement that was imposed by the ultra-secret Bush Administration.

The dilemma illustrates the big problem with EOs. Even putting aside the way that some Administrations have just pixie dusted their own EOs (indeed, the Bush EO in question is the one he used to claim, four years after the fact, that Cheney didn’t have to follow the rules on classification and declassification that agencies had to), they’re simply pieces of paper that the next Administration can and will rewrite.

Which is why Congress really needs to push through some laws on classification policy (starting with State Secrets), to prevent the executive branch from just using classification policy to accrue more power and/or evade oversight. And so that we, as citizens, can begin to scrutinize what Ronnie Reagan did in our name.

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more →

Obama DOJ Continues To FlimFlam Judge Lamberth On State Secrets

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The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out Read more →

State Secrets Bill Passes House Judiciary, 18-12

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The House Judiciary just passed Jerry Nadler’s bill reining in state secrets abuse by a vote of 18-12, with Adam Schiff as the sole Democrat voting against the bill. One thing Nadler has added to his bill since it was first introduced are measures to prevent the government from refusing to give plaintiff lawyers clearance to litigate the case (if the govt refuses the first and second choice lawyers for plaintiffs, the govt must give a list of possible lawyers to litigate the case). This would prevent a tactic the government tried to use in both the Horn and the al-Haramain suits.

In addition, the House Judiciary passed its version of PATRIOT Reauthorization. It’s a better bill than the Senate bill.

While both of these bills have a long way to go before they get signed into law (and at some point, I would expect the Obama Administration to reveal their opposition–and their support for unfettered executive power). But on the state secrets bill, especially, we have taken a very small step toward reining in the abuse of power of both Bush and Obama.