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Vaughn Walker Dismisses Challenge to Retroactive Immunity

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Wired reports that Vaughn Walker has dismissed EFF’s challenge to retroactive immunity. (h/t scribe) Plus, Wired will probably be reporting on how Anthony Coppolino recovered from his long week of dancing in the al-Haramain suit. So by the end of the day, we should have a better idea of whether we’ll ever hold the government responsible for violating FISA.

I’ll be reading Walker’s order as I drink my pre-flight beer (I’m going home!! We’ll see whether MI has survived a bruising week.) I’ll update as I’ve got more to say.

Update: We’re discussing in threads that Walker seems to set this decision against the Jewel case which sues Bush personally. I’ve been arguing that we might get a positive ruling from Walker in one or the other case, but not both, based on the legislative record. This is an example of what I mean:

The SSCI Report included among the committee’s recommendations for legislation amending FISA that “narrowly circumscribed civil immunity should be afforded to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.”

Jello Jay also maintained that this left open suits against the government. Which means I think Walker sees them (and the legislative record) as the way to move forward on one.

Update: Walker also dismissed the state suits. Here’s the order. And the conclusion.

The United States’ motion for summary judgment in United States v Clayton, C 07-1242; United States v Reishus, C 07-1323; United States v Farber, C 07-1324; United States v Palermino, et al, C 07-1326; United States v Volz, et al, C 07-1396 is GRANTED. The state proceedings at issue in each of those cases are prohibited by section 803 (50 USC § 1885b) and are hereby enjoined pursuant to this court’s authority under that statute. Clayton et al v AT&T Communications of the Southwest, Inc, et al, C 07-1187 is DISMISSED with prejudice.

The United States is directed to submit a proposed form of judgment in accordance with this order.

Update: To add to what JimWhite said in comments, this ruling is pretty much a warning shot across George W. Bush’s bow.

The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc Read more →

The Government Dodges and Weaves on al-Haramain

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While I agree with bmaz that the government response in al-Haramain repeats a lot of tired arguments, I’m utterly fascinated by the dodging and weaving they do to try to persuade Vaughn Walker not to impose sanctions on them. I’m fairly sure that Anthony Coppolino (the government lawyer in this) ended up canceling his Memorial Day plans last weekend and has been working on this dance ever since.

Before I explain why, understand the challenge. Normally, when the government invokes state secrets, the evidence in question is just removed from the case, as if it didn’t exist. Walker has ruled that FISA trumps state secrets, and so he can review the evidence to see whether al-Haramain was illegally surveilled; he has also said that to proceed in the case, al-Haramain must have a means–via access to (at a minimum) Walker’s rulings and possibly also the wiretap log and the government’s declarations–to litigate the suit. But the government maintains the al-Haramain lawyers absolutely cannot see those documents. So Walker, last week, proposed just skipping the tedious litigation step, and just declaring that the government could not oppose al-Haramain’s claim it had been illegally wiretapped, and proceeding to the penalty phase (mind you, as bmaz has pointed out, that’d involve other discovery claims, but let’s put those aside for the moment). This filing is the government’s attempt to continue to claim state secrets, even in a crime that Congress has specifically prohibited.

The government starts by focusing attention exclusively on whether it should be sanctioned for refusing al-Haramain’s lawyers access to the documents in this case, and away from whether it should be sanctioned for illegally wiretapping al-Haramain. And it pretends that it has not ignored Walker’s order that they at least propose some way to litigate this.

The Government regrets that the Court has now suggested that actions it has taken in this litigation may warrant sanctions. We respectfully but firmly disagree. As set forth more fully below, the imposition of discovery sanctions would be unjustified because the Government has not violated any Court order or otherwise acted in a manner warranting sanctions. The Government has merely declined voluntarily to agree to a protective order that would, in the Government’s view, require disclosures that would irretrievably compromise important national security interests. That conduct cannot be a basis for sanctions.

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Breaking! Judge Walker Gets Ready to Penalize the Government in al-Haramain

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Judge Walker appears to have lost his patience with the government’s obstinance in al-Haramain.

He just gave the government one week to explain why he shouldn’t just rule in al-Haramain’s favor and impose penalties.

As the court understands the situation:

1. The United States has completed suitability determinations for two of plaintiffs’ attorneys and found them suitable for TS/SCI clearances, but government officials in one or more defendant agencies, including the NSA Director (Doc #626/89 at 16), are refusing to cooperate with the court’s orders because, they assert, plaintiffs’ attorneys do not “need to know” the information that the court has determined they do need to know.

2. Defendants have refused to agree to any terms of the protective order proposed by plaintiffs and have refused to propose one of their own. Doc #626/89 at 35.

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders:

(1) defendants should not be prohibited, under FRCP 37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

(2) the court should not deem liability under 50 USC § 1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

Defendants shall submit written response to this order no later than May 29, 2009.

All good questions, Judge Walker. 

I rather suspect the Administration would prefer just to pay damages than to go forward with this (particularly with Judge Walker in such a peeved mood). But if Walker rules in al-Haramain’s favor, what does that do for the retroactive immunity case?

The Data Mining Secrets and al-Haramain

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There’s a footnote in the latest al-Haramain filing that deserves further attention. It suggests the government continues to try to shield information on its larger wiretapping program by treating different aspects of it as separate programs entirely.

The Filing Refers to "TSP" Surveillance and Surveillance "Pursuant to Other Authorities"

Amidst the passage complaining (rightly, to a point) that al-Haramain’s proposed protection order would give it access to "all information" the government held on the charity, it footnotes a discussion of the submissions included as part of its state secrets assertion.

Similarly, paragraph 25 of plaintiffs’ proposed protective order, which addresses counsel’s “need to know” classified information, is also fundamentally flawed. This proposed provision states: “A plaintiff’s counsel is presumed to have a ‘need to know’ all the information in the government’s possession concerning the plaintiffs whom that counsel represents.” See Pls. Proposed Order ¶ 25. Not only is this among the central issues in dispute in this case, as noted above, but, under this provision, plaintiffs would be presumed to have a “need to know” any and all classified information “concerning” plaintiffs. This could include all information concerning the Al-Haramain Islamic Foundation of Oregon—a designated global terrorist organization—as well as the information at issue in the Government’s state secrets privilege assertion filed in this case, to the extent those submissions are deemed to “concern” the plaintiffs.6/ Plaintiffs would thus transform the inadvertent disclosure of a single document—which itself was subsequently excluded in this case by the Ninth Circuit—into a presumption entitling them to all information that may exist concerning them. Plaintiffs’ response below does not recede from this sweeping demand for access. [my emphasis]

The footnote reads,

6. The Government’s state secrets privilege assertion applies to a range of information beyond the sealed document, including whether or not the plaintiffs were subject to alleged surveillance not only on the Terrorist Surveillance Program challenged in this case, but pursuant to any other authority not at issue here, as well as information concerning the TSP, and the al Qaeda threat. See Public Declaration of John D. Negroponte. [my emphasis]

The Government Doesn’t Want to Hand Over the New Filings

These two passages suggest several things. First, from a very practical perspective, they show the government is panicking over having to release the classified submissions the government itself submitted in this case, much more than they’re panicking over having to (re)release the wiretap log that, after all, al-Haramain has already seen. I’ll remind you that these submissions are probably the same submissions that the Obama administration had to correct. Read more →

The Latest al-Haramain Filing

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First, let me say that the breathless reporting on the latest al-Haramain filing is totally overblown. As I said when Judge Walker ordered the al-Haramain and government  to attempt to come up with a protective order under which the case can proceed, it was always unlikely that they would be able to do so.

The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work.

Guess what? This latest is, as expected, a continuation of the same squabble that the parties have been engaged in since January 5. Yes, the government continues to insist Walker’s January 5 ruling–that FISA trumps state secrets–is wrong. But the al-Haramain lawyers are also pulling some fast ones with their submission. Which suggests that Walker is going to have to finally rule one way or another on what access al-Haramain should have, the government will try to appeal, and we’ll be waiting on the 9th Circuit again.

Walker’s Order and al-Haramain’s Response

Back on April 17, Judge Walker pointed to a protective order being used in the Gitmo habeas petition cases, suggesting that the parties here adopt a similar protective order. So al-Haramain, appearing to follow Walker’s order to a T, did just that, submitted a protective order based on the Gitmo one.

But, as the government fairly pointed out, al-Haramain made some key changes in the order. First, whereas the Gitmo order allowed the government to refuse to disclose information and, ultimately, to release a detainee rather than disclose that information, the al-Haramain proposed order gave the government no such way to refuse to disclose information.

Plaintiffs’ proposed order also deletes another sentence from paragraph 49(b) of the Guantanamo order which states that: “Nothing herein prohibits the government from submitting classified information to the Court in camera or ex parte in these proceedings or entitles petitioners or petitioners’ counsel access to such submissions or information.” See id. Elimination of this provision would further foreclose the Government’s authority to control the use and disclosure of classified information in this case.

(Al-Haramain, incidentally, simply replaces this passage with a phrase not limiting government "remedial action" if information does get leaked, which if they were willing to go to jail to liberate information on the warrantless wiretap program would pretty much expose the program in its entirety.) Read more →

On the al-Haramain Decision

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Thanks to bmaz for sitting in a crappy rental car in SF for the last month and a half waiting for Vaughn Walker to make a peep. As he reported, Walker has ordered the government and the al-Haramain team to figure out a way to move forward with the litigation.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits.

Frankly, that order is largely a punt. The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work. He could have just ordered them to follow that approach, but did not.

But here are the two aspects of the order that are not a punt. First, Walker makes it clear he has read all the documents submitted in this case.

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.”

And he has said, clearly, that it’s time to get this litigation moving.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

In other words, Walker has said, "I’ve read the secret evidence in this case and now I want you guys to figure out how to move foward with this case."

Which pretty much implies that, having read the evidence, Walker believes it will move forward. Unless I’m misreading these tea-leaves (which I doubt, because the tea-leaves have been reading the same way since well before January), Walker is prepared to rule that al-Haramain is an aggrieved party. Meaning, Walker is convinced the government wiretapped al-Haramain illegally.

Not a surprise, in the least, but it’s nice we’re finally getting around to this.

So why the punt, and why the delay?

First, a wildarsed guess. I think the delay may have related to the third of the related warrantless wiretap cases before Walker. You’ll recall the filing submitted two weeks ago, once again making expansive claims of privacy and claiming the government is immune from suit.  Read more →

Did Holder Know About the “Significant Misconduct” When DOJ Claimed Sovereign Immunity?

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On April 3, DOJ submitted a filing that argued that no citizen had the ability to sue if she had been wrongly wiretapped under Bush’s illegal wiretap program. The government, DOJ claimed, had sovereign immunity that protected it from such suits.

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States.

Today, just 11 days later, we learn that,

As part of [presumably Glenn Fine’s  Inspector General] investigation [into the warrantless wiretap program], a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

So when Eric Holder’s DOJ made expansive claims arguing that no one could sue federal employees for being wrongly wiretapped under Bush’s illegal program, did he know this revelation from Glenn Fine’s investigation into the wiretapping program? When DOJ claimed sovreign immunity, were they thinking not so much of the Jewel plaintiffs, whose claim was focused on the dragnet collection of US person data, but of the Americans targeted in what Glenn Fine’s office considers "significant misconduct"?

Because if Holder did know (and the timing suggests it is quite likely he did), it makes those cynical claims of sovereign immunity all the more disturbing.

Fine’s investigation will contribute to the larger FAA-mandated Inspector General’s for which there is a presumption of openness. In other words, even if this hadn’t been leaked now, in April, it is supposed to be published in unclassified form in July. Read more →

The Latest State Secrets Claim

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Yes, I know, I’ve been so preoccupied trying to save my state from JP Morgan Chase that I have not yet commented on the Obama Administration’s latest Cheneyesque invocation of state secrets, in the EFF/Jewel case. Of course, that means some smart lawyers have already beat up the filing on legal grounds. So I thought I’d focus my attention on tactical issues.

Three Interlocking Cases

Before I do that though, let’s review what this suit is and what else is going on. As Glenn pointed out, EFF filed this suit after Jello Jay Rockefeller, the patron saint of the awful FISA Amendment Act last year (and a big Obama backer), claimed during deliberations on that bill that,

…lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

Now, I don’t believe for a millisecond that Jello Jay actually intended for lawsuits to go forward–he was, instead, trying to dismiss opposition to immunity–but nevertheless, the legislative record on FISA now reflects that the bill’s sponsor thinks citizens should be able to sue those who illegally wiretapped.

Meanwhile, of course, there are two decisions still pending (as far as we know) before the judge in this case, Vaughn Walker. The first is the al-Haramain suit, in which the 9th Circuit already decided the warrantless wiretap program was a properly invoked state secret, but in which al-Haramain’s suit will probably go forward because Walker ruled the charity had proved it was an aggrieved party without the materials over which Bush invoked state secrets. Now (again, as far as we know), Walker is looking at the wiretap log and the other classified briefs submitted in the case, and deciding whether al-Haramain has standing (and therefore, whether the Bush Administration violated FISA). If and when Walker rules that the Bush Administration did violate FISA, there will be a giant fight over whether he, or the Administration, gets to decide which documents in that case will be made public and/or available to al-Haramain’s lawyers. (Contrary to almost all the reporting in the case, Walker has not yet decided whether or not he would require the government to hand over the wiretap logs and other briefs decribing the warrantless wiretap program.)

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“Reasonable grounds to conclude”

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In honor of what appears to be warrantless wiretap day here at emptywheel, I’ve got myself lost in some hopeless weeds. Among other things, I decided to compare the unclassified declarations DNI and NSA submitted in the ACLU case on May 27, 2006 (I’m not positive, but I think they submitted identical declarations in the other pending warrantless wiretap cases) with those submitted in the al-Haramain case on June 21, 2006. (Note, in both cases, classified filings were submitted at the same time, but we don’t get to see those.)

Here they are:

ACLU: DNI John Negroponte declaration, Major General Richard Quirk (NSA) declaration

al-Haramain: DNI John Negroponte declaration, Lieutenant General Keith Alexander (NSA) declaration

As you’ll see, these declarations are almost the same in many respects, though subtly different particularly in how they discuss the warrantless wiretap program and whether or not they can disclose that someone has been wiretapped.

For the moment, I’m most interested in how they describe the warrantless wiretap program.

In the ACLU case (and the CCR case), the government claimed,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization …

In the al-Haramain case a month later, the government said,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain international communications originating or terminating in the United States where there was reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. 

In a case where no one had proof they’d been tapped, NSA and DNI claimed that they were only using the program where "one party is associated with" al Qaeda. But in a case where the plaintiff knew they had been tapped, the government weakened their claim to "reasonable grounds to conclude … one party is a member or agent of al Qaeda or an affiliated terrorist organization."

How much, in the month longer it took them to invoke state secrets in al-Haramain, do you think they pondered the possibility that a judge would demand proof that al-Haramain "is associated with" al Qaeda?

And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." Read more →

Again on the al-Haramain Stuff

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The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.

No.

As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

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