9th Circuit Rejects Obama Bid to Stop Wiretapping Suit (Plus) It’s The Economy Stupid; It’s The Stupid Economy and Continuing The Pursuit Of Justice.
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to bring me before a court of law and let the enquiry take place in
broad daylight!"
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than the animating contest of freedom, — go from us in peace. We ask
not your counsels or arms. Crouch down and lick the hands which feed
you. May your chains sit lightly upon you, and may posterity forget
that ye were our countrymen!”
-Sam Adams-
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9th Circuit Rejects Obama Bid to Stop Wiretapping Suit
In an unexpected move, the 9th Circuit has rejected the Obama/Dead-Ender attempt to stay the al-Haramain suit against Bush for illegally wiretapping it.
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WASHINGTON (AP) -- The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government's warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay in a case involving a defunct Islamic charity.
Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security.
The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.
Now, civil libertarians hope the case will become the first chance for a court to rule on whether the warrantless wiretapping program was legal or not. It cited the so-called state secrets privilege as a defense against the lawsuit.
''All we wanted was our day in court and it looks like we're finally going to get our day in court,'' said Al-Haramain's lawyer, Steven Goldberg. ''This case is all about challenging an assertion of power by the executive branch which is extraordinary.''
A Justice Department spokesman declined to comment.
But hours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.
''The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,'' said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.
The decision by the three-judge appeals panel is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.
Earlier this month, Attorney General Eric Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.
Yet even as that review continues, the administration has invoked the privilege in several different cases, including the Al-Haramain matter.
The case began when the Bush administration accidentally turned over documents to Al-Haramain attorneys. Lawyers for the defunct charity said the papers showed illegal wiretapping by the National Security Agency.
The documents were returned to the government, which quickly locked them away, claiming they were state secrets that could threaten national security if released.
Lawyers for Al-Haramain argued that they needed the documents to prove the wiretapping.
The U.S. Treasury Department in 2004 designated the charity as an organization that supports terrorism before the Saudi Arabian government closed it. The Bush administration redesignated it in 2008, citing attempts to keep it operating.
The 9th Circuit eventually agreed that the disputed documents were protected as state secrets. But the court ruled that the Oregon chapter of Al-Haramain could try to find another way to show it had standing to sue the government over domestic wiretapping.
A number of organizations, including the American Civil Liberties Union, tried to sue the government over warrantless wiretapping but were denied standing because they could not show they were targeted.
Ann Brick, a lawyer for the ACLU of Northern California, said the court has now crafted a way to review the issue in which ''national security isn't put at risk, but the rule of law can still be observed.''
UPDATE: HERE'S THE BRIEF FROM AL-HARAMAIN.
THE ORDER FROM AL-HARAMAIN
“We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.”
With Special Thanks To Empty Wheel and Amy Harlib on The Flagging.
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By: emptywheel Saturday February 28, 2009 6:44 pm-
With the news that Bush's DOJ submitted "inaccurate" information to Judge Vaughn Walker, I wanted to look at the recent timeline on the al-Haramain suit to identify the ways Bush and Obama/Dead-Enders postponed alerting Walker to this fact up until the moment it became clear he would get to review the wiretap log from al-Haramain. I'm guessing Obama discovered at least several weeks ago (February 11?) that the information provided to Walker was "inaccurate" and much of the actions since have been an attempt to avoid having to admit to Walker that he had received "inaccurate" information. (Though Bush no doubt knew this fact--and was trying to hide it--much longer.)
January 5, 2009: Walker announces he'll review the wiretap log to see if al-Haramain was wiretapped illegally. He sets the following deadlines:
- January 19 (14 days): "defendants shall arrange for the court security officer/security specialist assigned to this case in the Litigation Security Section of the United States Department of Justice to make the Sealed Document available for the court’s in camera review. If the Sealed Document has been included in any previous classified filing in this matter, defendants shall so indicate in a letter to the court."
- February 13: Clearance for al-Haramain's lawyers.
- February 19 (45 days):"Defendants shall 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."
January 9, 2009: al-Haramain's attorney, Jon Eisenberg emails DOJ's lead attorney, Anthony Coppolino, to confer on joint statement on how to proceed with case.
January 12, 2009: Coppolino asks Eisenberg for a proposal.
January 13, 2009: Eisenberg emails Coppolino a plan.
January 15, 2009: Coppolino emails he hopes to respond the following day, first raises possibility of separate statements.
January 16, 2009, 8:21 PM: Bush appeals Walker's January 5 order.
January 17, 2009: Eisenberg leaves email and voicemail about appeal.
January 19, 2009, 10:56 PM: DOJ files for a stay.
In separate filing, Bush DOJ tells Walker he already has the Sealed Document.
The Sealed Document at issue in this case has been lodged previously in this action with the appropriate court security officers.
January 20, 2009: Obama inaugurated President.
February 2, 2009: Eric Holder confirmed as Attorney General; as of this moment, he had not been read into the illegal wiretap program.
February 11, 2009: DOJ argues its case for a stay, and requests an interim stay before al-Haramain's lawyers get their clearance and the government submits its classification review.
The Government also requests that at least an interim stay be entered by February 13, 2009—the date after which further proceedings may commence under the January 5 Order.
It asks for an immediate answer so it can request a stay from the Appeals Court.
The Government respectfully requests that the Court indicate how it will proceed by 3 pm on February 13, 2009. In order to protect its interests, the Government plans to seek relief from the Ninth Circuit before the close of business that day in the absence of relief from this Court.
It also reports that the Government expects the materials included in the classification review will remain classified.
Plaintiffs also contend that the declassification review ordered by the Court may also foreclose any harm to the Government. See Pls. Opp. (Dkt. 69) at 10 n. 1. The Court ordered that process to be completed by February 19, 2009, the Government expects that the relevant information at issue in the privilege assertion will remain classified, if not all of the information contained in prior classified submissions.
February 19, 2009: DOJ asks for an extension on the classification review, explaining:
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.
The Government anticipated being prepared to file on time, but additional review and consultation is required to complete the forthcoming submission to the Court.
February 20, 2009: Walker grants DOJ request for more time to prepare the classification review, agrees to new deadline of February 27.
February 27, 2009: The following happens, apparently in this order.
- Obama speaks by phone with George Bush, reportedly to tell him of his Iraq withdrawal decision.
- 9th Circuit refuses DOJ's request for a stay.
- DOJ submits a filing basically warning that they will appeal any decisions Walker makes on sharing classified information.
- DOJ submits its delayed classification review, admitting that:
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.
- DOJ submits four classified declarations (presumably correcting the previous "inaccuracy"), from:
- Anthony J. Coppolino of the Department of Justice
- Andrea M. Gacki of the Department of the Treasury, Office of Foreign Assets Control (note, Gacki had previously served as a DOJ defense attorney on this case, representing FBI)
- John F. Hackett of the Office of the Director of National Intelligence
- Joseph J. Brand of the National Security Agency
Obama’s FISA Headache | By: emptywheel
As I reported, the 9th Circuit has rejected the Obama/Dead-Ender appeal on the al-Haramain case.
We're not out of the woods yet (apparently Judge Walker is out of his office until Monday, and Obama and his DOJ presumably are not). But here's some context on why the 9th Circuit's rejection of Obama's appeal is so significant.
Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.
But there are at least three other reasons why this is important.
Al-Haramain's Dates
I pointed out in this post that al-Haramain has reason to believe (and remember--they've read the wiretap log) that they were wiretapped on, among other dates, March 11 and March 25….
Retroactive Immunity
Judge Walker has his own issues with the retroactive immunity provision in the FISA Amendments. Those issues won't be mooted legally if, before he rules on whether retroactive immunity is illegal, he reads a document that proves that the illegal wiretap program that Congress attempted to immunize was, in fact, illegal. After all, many of the Members of Congress who voted for immunity knew they were immunizing illegal action (much to their shame).
But there are two ways it may affect things. First, politically, it'll be a lot harder to attack Walker's decision that retroactive immunity is unconstitutional if everything the dead-enders like Kit Bond have been telling us for the last several years has been proven demonstrably wrong. Sure, I guarantee you that Kit Bond will say Walker's decision (if he rules that retroactive immunity is unconstitutional) is wrong and sure, he'll harp on al-Haramain being a dangerous charity with ties to Al Qaeda. Nevertheless, a ruling that the program was illegal and that the content of US persons was not minimized will make that a tougher battle.
And remember the nature of the Obama disagreement with the telecoms wrt retroactive immunity. The telecoms say the FISA Amendment mandates the AG to certify if they were wiretapping because Bush told them to under certain circumstances. Obama, however, says that the AG retains discretion on whether or not to certify in such cases.
( MORE )
Breaking: Court Ruling Gets Closer to Exposing Bush Crimes
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Court Rejects Obama Bid To Stop Wiretapping Suit
Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning
The Executive Branch's Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney's rancid flesh.
Courts Get to Determine Classified Information for Their Trials
First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors--as distinct from elites like Cheney--could determine what counted as classified information.
Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.
Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.
A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.
(Someone's been reading their bmaz.)
Lawyers Get to See Classified Information Their Clients Need for Their Defense
Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that.
So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.
Back to al-Haramain: Obama Argues against Article III Review
And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.
Read the whole thing. But honestly. this stuff has gone from crappy to pathetic.
The Court has indicated that it rejects the Government’s reading of Egan, and presumably the related authorities the Government has marshaled. See January 5 Order at 21. The Court notes that under Egan, courts should not intrude upon the authority of the Executive in military and national security affairs “unless Congress specifically has provided otherwise.” Egan, 484 U.S. at 530; July 2 Order, 564 F. Supp. 2d 1109, 1121 (N.D. Cal. 2008). The Government respectfully submits that Congress has not specifically provided authority, in Section 1806(f) or in any other statute, for courts to ignore the determination of the Executive Branch agency responsible for classified information, determine for themselves whether a person has a need to know such information, and thus grant access to classified information.
Plaintiffs urge the Court to ignore the decision of the Director of NSA and to make its own finding about whether counsel has a need to know. Plaintiffs assert that because the Court does not need a security clearance to access classified information, and because such information is contained in the Court’s files, the Court is an “authorized holder” of classified information under the Executive Order (Pls. Supp. CMR at 3). This argument is seriously mistaken, based on both the Constitution’s allocation of authority to control classified information, and on the text of the Executive Order.
The mere fact that the Executive branch voluntarily provided the Court with access to classified information, for purposes of deciding the state secrets privilege or other related matters, does not grant the court authority to, in turn, disclose classified information to a litigant over the Government’s objection. In particular, the fact that Article III judges are not required to undergo security clearance processing each time they are provided access to classified information likewise does not vest in them authority to make access determinations themselves.
Egan makes clear that the authority to control access to classified information is based on the President’s Article II powers under the Constitution and, whatever role Congress may have in regulating in this area, Article II does not grant the Judicial Branch authority to make determinations that usurp the President’s Article II powers. Thus, reading “authorized holder” under the Executive Order to include a Judicial officer, and allowing such an officer to overrule the Executive’s determinations, would itself be contrary to the authority outlined above.
Moreover, this is a flawed interpretation of the Executive Order itself. The Executive Order makes clear that the authority to determine a person’s need to know is the authority to determine access, because need to know is the final requirement before access is granted. See E.O. § 4.1(a). Thus, an authorized holder of classified information is one who may grant access under the terms of the Executive Order itself. The Order makes clear that originating agencies should have final say over another agency’s decision to disclose information, see id. at § 4.1(c), and that these same protections apply even when information is disseminated outside the Executive Branch. See id. at § 4.1(e). The Order also provides that “[a]uthorized holders” may challenge the classification status of information “in accordance with agency procedures,” including a right to appeal to an interagency panel composed of senior Executive Branch officials. Id. §§ 1.8, 5.3(a).
These procedural requirements demonstrate that Executive Branch officials are the authorized holders of classified information under the Executive Order and are subject to the determinations made by other Executive Branch officials. To the extent the Executive Order is unclear on this issue, the Executive’s longstanding resolution of that question would be entitled to substantial deference and controlling weight by this Court. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945).
Accordingly, plaintiffs’ contention that Court is an authorized holder under the Executive Order and may determine counsel’s need to know or grant access to classified information is clearly wrong. And even if the Court were permitted to determine counsel’s need to know, the law is abundantly clear that it must defer to the constitutional role of the Executive in controlling classified information.
Why are these guys still talking about an Executive Order?!?!?!
Not only do they ignore al-Haramain's argument--culled from the "wisdom" of David Addington--that entities that are not "agencies" do not have to comply with Executive Orders. But why the fuck would an Executive Order--which is not a law but, as the term implies, an Executive Order--bind a non-Executive entity regarding information it created? This whole passage, read in the context of the wholesale rollback on Executive claims to have exclusive control over classified information just reeks of desperation. Not to mention an acceptance of Cheney's contention that we have fewer than one--or even two--branches of government.
To be fair, this is the argument that rightly ought to take place, just as Walker rules and things (presumably) will move forward on the al-Haramain suit. Still, it's a desperate attempt to makeNavy v. Egan say something it doesn't say--one more worthy of Bush's Dead-Enders than Obama's lawyers.
Walker's Imminent Ruling
So what does this mean for Walker's imminent ruling on whether Bush broke the law? Dunno--but I'm sure glad he has absented himself to go rule, rather than be distracted by this stuff. The big question is whether the Obama/Dead-Ender Administration believes that simply announcing that al-Haramain has a case--that they were wiretapped illegally--constitutes classified information.
It shouldn't. And even more, it shouldn't count as classified information controlled by the Executive (it is, after all, all that Judge Walker has said he'll definitely make available to plaintiff's going forward--his orders). But we'll see whether they'll try to prevent Walker's publication of his ruling, come Monday. If this is all the Obama/Dead-Ender Administration tries to do to prevent Walker from announcing that Bush broke the law, we may be ahead of the game.
And meanwhile, Cheney is no doubt weeping about the way his overreach on executive power is in the process of--in Nixonian fashion--rolling back previously unchallenged executive powers.
It’s The Economy Stupid;
It’s The Stupid Economy!
| The Treasury Department reached a deal late Thursday to take a stake of 30 to 40 percent in Citigroup as part of a third bailout of the embattled bank, | Latest Citigroup Rescue May Not Be Its Last By any measure, the federal government’s latest rescue for Citigroupis perhaps the most daring attempt yet to stabilize the nation’s beleaguered banks. But it almost certainly won’t be the last. No sooner did the Treasury Department announce on Friday that it would increase its ownership in Citigroup than the questions began to swirl. The big question, of course, is this: Will this plan, the third since October, be the one that finally works? Will it shore up this $2 trillion behemoth? Or is the outcome that the banks and the government are so desperately trying to avoid — nationalization, under whatever guise — only a matter of time? Saudi Prince Is Humbled by Citigroup LONDON — The bad news arrived by telephone early this week at the Saudi headquarters of Prince Walid bin Talal. Citigroup, the investment that had transformed Prince Walid from an obscure Arabian royal into the Warren E. Buffett of the Middle East, was spiraling down around him. And now, on the line from New York, was Citigroup’s chief executive, calling personally to tell the prince that the United States government would substantially increase its stake in the troubled financial company — a step that would cost the prince dearly. As it did Friday. The stunning collapse of Citigroup’s share price, to a mere $1.50 on Friday from a record $55 in 2006, has hurt investors worldwide. But few reputations have suffered as severe a blow as that of Prince Walid, who owns about 4 percent of the company. In its third attempt to stabilize Citigroup, the government announced Friday that it would increase its ownership stake to as much as 36 percent by converting part of its large preferred investment stake to common stock, Other preferred stockholders could own a 38 percent stake of the bank if they all convert their shares. That would dilute existing common shareholders, who together would now own just 26 percent of the bank. |
| MW: The financial crisis is quickly turning into a political crisis. Already governments in Iceland and Latvia have collapsed and the global slump is just beginning to accelerate. Riots and street violence have broken out in Greece, Latvia and Lithuania and worker-led protests have become commonplace throughout the EU. As unemployment skyrockets and economic activity stalls, countries are likely to experience greater social instability. How does one take deep-seated discontent and rage and shape it into a political movement for structural change? We are going to have to be aware of the fact that we really do have a Global Community and that the reconstruction of our economy is going to be but one facet of the economic restoration. |
Rocky Mountain News Ends Publication in Latest Casualty of Ailing Newspaper Industry The Denver-based Rocky Mountain News is publishing its last paper today. On Thursday, parent company E.W. Scripps announced the newspaper’s closure after saying it’s failed to find a buyer. The closure comes just two months before the Rocky Mountain News would have marked its 150th anniversary. [includes rush transcript] By Norman Bishop While it's rare for Byrd to criticize a president in his own party, Byrd is a stern constitutional scholar who has always stood up for the legislative branch in its role in checking the power of the White House. Byrd no longer holds the powerful Appropriations chairmanship, ... chairman of the Judiciary Committee, filed a lawsuit over the issue. The case is on appeal, and the Obama administration is scheduled to file a motion next week laying out its stance on the issue ... War is illegal | www.war-is-illegal.org Against a background of escalating ecological crises, and the fact that large parts of the world´s population are being exposed to extreme poverty, inhuman working conditions and increasing social tensions, the annual global military expenditure has risen to more than 1000 billion dollars. The military-industrial complex of just a few G8 countries is responsible for the overwhelming part of this spending, causing incalcuable social and ecological consequences. Unequal distribution of global resources, increasingly controlled by large multinational companies, global debt policy and unfair international trading practices ultimately could not be maintained without military security. In many countries the military is used to repress critical opposition. The terror attacks of September 11, 2001 are increasingly used to justify systematic surveillance and the dismantling of constitutional rights. Even European countries have helped to establish Guantanamo-like secret prisons, where torture in all probability takes place. Iraq was attacked based on falsified evidence causing the death of hundreds of thousands of people, widespread destruction, destabilization and contamination with cancer-causing depleted uranium munitions. Now plans to attack Iran and the possibility of a new World War have been made public, meeting resistance even from moderate elements within the military due to the unforeseeable consequences. Faced with the choice between a war, that according to some western leaders, will last for many years or a possible peaceful transformation we support the following demands…. 1) [Impeachment proceedings against US President Bush and US Vice President Cheney before the 2008 election, a demand raised in solidarity with large parts of the US public and some members of US Congress.] Furthermore prosecution by the International Court of Justice of G. W. Bush, R. Cheney and other officials from various countries for waging wars of aggression contrary to international law and committing crimes against humanity. 2) International investigation of the September 11, 2001 terror attacks. They are used as the central justification for the "War on Terror", but well documented evidence shows that the official explanation of 9/11 cannot be correct. International personalities in science, politics, and culture, including high-ranking military veterans, have called for a new investigation. 3) Immediate military withdrawal from Afghanistan and Iraq, and no attack against Iran. International prohibition of war as a means of conflict resolution. Military intervention and export of weapons should be criminalized. In a civilized society torture must be prohibited in any form. 4) Conversion of military industries to civilian purposes and the development of ecological and sustainable energy resources. According to the UN environmental agency, a fraction of the annual global defence expenditure could ensure that all humans have access to clean water and a basic supply of food and healthcare. This statement is based on a commitment to non-violence and tolerance of all ethnic groups and religions. Two devastating World Wars and historical catastrophes like the Nazi Holocaust must always remind us of the worst consequences of nationalism, racism and incitement to war. | Prog. Caucus Iraq Withdrawal Paper Bring 'em Home Now music video CLICK HERE FOR THE LATEST NEWS |
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