Vaughn Walker Dismisses The FISA Lawsuits... Or Does He?

Looks like Vaughn Walker's hands were tied by the law.

A federal judge on Wednesday threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

Chief Judge Vaughn R. Walker of Federal District Court in Northern California said that although consumer and privacy groups raised important constitutional issues in their claims, Congress had left no doubt about its “unequivocal intention” when it passed a measure last summer giving immunity to phone carriers in the wiretapping program.

The ruling represents a major victory not only for AT&T and other carriers, which faced potential damages of billions of dollars if they lost the cases, but also for intelligence officials in Washington who had fought assertively in their defense. Officials from both the Bush and the Obama administrations maintained that the cooperation of the phone companies has been vital to national security and that penalizing them for their participation would jeopardize important surveillance operations.

Lawyers for the plaintiffs, led by the Electronic Frontier Foundation, a privacy and civil liberties group, said they would appeal to the United States Court of Appeals for the Ninth Circuit.

They'll lose in the Ninth Circuit as well, given that they are bound by precedent, and in the Supreme Court as currently constructed, I'd find it unlikely that they'd turn over Congressional law. Although, they probably should, given the violations to the Fourth Amendment to the Constitution and the Congress taking over the functions of the judiciary in terms of holding companies liable.

However, in a separate ruling, Walker did cause some hackles to be raised inside the Justice Department.

A federal judge yesterday declined to penalize Justice Department lawyers for flouting his orders in a sensitive electronic surveillance case where the Obama administration sided with its predecessors to the alarm of civil liberties groups.

But U.S. District Judge Vaughn Walker did not give the government what it wanted, either. The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of President Obama's approach to protecting state secrets.

Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority.

Good for WaPo to focus on the full measure of Walker's rulings, which Marcy Wheeler discusses further. In addition, Wheeler notes that there's an additional case, Jewel, which sues Bush himself. While the Congress rules on holding the telecoms harmless, they did not do the same for the government.

Lest any further reassurance be necessary, the SSCI report states: “The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”

The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.

There's a lot going on with these lawsuits, and I would say that the Justice Department shouldn't close the file just yet.

Wiretapping Suits To Go Forward - Obama's DoJ Should Give Up

Perhaps more important than the revelation that the NSA "overcollected" information on innocent Americans was the news late yesterday that Vaughn Walker, the judge in many of the wiretapping cases currently before the court, elected to keep the Al Haramain suit going.

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. The United States District Court for the District of Columbia has successfully employed protective orders in the In Re Guantánamo Bay Detainee Litigation, D DC No Misc 08-0442 TFH, even providing for the use of top secret/sensitive compartmented information (TS/SCI). See, for example, the documents at docket numbers 409 and 1481 in that matter. The United States has advanced no argument that would suggest a reason why the court’s use of a protective order in instant matter modeled on those in use in the Guantánamo Bay would not adequately protect the classified information at issue here.

As Marcy Wheeler later describes, having read the evidence in the case, including the document Bush's Justice Department inadvertently gave Al Haramain's lawyers showing a transcript of their wiretapped conversations, Walker wants the case to proceed.

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 [...]

But he's also called the government's bluff. Last we heard in this case, after all, the government was squawking like Cheney, threatening to come take its documents away if Walker tried to give them to al-Haramain. But what's it going to do now, if Walker has his ruling on the merits all but written now? Take Walker's rulings away? Take his notes? In other words, Walker has read the documents--documents that likely impact not just this suit, but also the other suits against the government. And the government can't take his review of those documents away at this point.

Walker has multiple wiretapping suits before him, and this ruling will have implications for them as well. Which is why Obama's DoJ should just give up with the state secrets reasoning at this point. Clearly it won't work, and it only gets them more deeply involved in a cover-up. Just allow the cases to reach court and let the chips fall.

Meanwhile, Jay Rockefeller may have speculated that NSA was wiretapping him earlier this year, in which case I'll be happy to not help him, since he led the effort to indemnify the telecoms. You're on your own, Jay.

Unitary Executive Theory Makes A Comeback

Marcy Wheeler and Glenn Greenwald say basically all that needs to be said about the Obama Administration's shameful efforts to block a ruling on warrantless wiretapping in the Al Haramain case. It's not only that this White House is running interference for the last White House, it's the basic copying of the same dangerous theories of unitary executive power that should have everyone worried.

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:

"In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the
Government to grant counsel access to classified information when the Executive Branch has denied them such access."

That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency.

Just for a little background on the Al Haramain case - the Islamic charity, in an accidental court filing from the Bush Justice Department, discovered they had been spied upon illegally by the government, without a warrant. Their certainty is due to the transcript of the eavesdropped conversation that the government gave them. Since that time, both the Obama and Bush Administrations have ordered that the document, and therefore the evidence for illegal conduct, is classified and cannot be admitted into court. Despite several rulings to the contrary, this President - like the one before him - is claiming that only the executive can decide what may be done with classified information, with the potential being that any President can just classify whatever compromising information exists about his or her activities and shield it from the view of the Congress, the courts, and the people. It is an expansive and un-American view of the Constitution, used in this case to service a massive cover-up.

And this effort to use the state secrets privilege to this degree has been thoroughly rejected in this case. But the government continues to appeal. Aside from admitting that Bush's DoJ lied to the presiding judge in an earlier filing, there is nothing redeemable about Obama's conduct.

There is simply so much that Obama's team has had to overturn from the Bush regime, they're probably getting heartburn from all of the decisions. Yet while, in isolated respects, they've done a decent job, it cannot excuse this conduct. I don't know whether it's foreknowledge of the extent of the lawbreaking, or pressure from the telecoms to save their immunity (which could absolutely be threatened by this ruling, as there's a pending case with the same judge, Vaughn Walker) or what, but Washington is united in really, really not wanting the truth on warrantless wiretapping to come to light. It is despicable that this has become so vital that Obama, a constitutional law professor, would adopt the same unitary executive theory than he actually swore an oath to reject.

The Wages Of Delay

The report that Barack Obama's Justice Department was siding with the Bush Administration in the Al Haramain case was a little disconcerting. In Al Haramain, an Islamic charity being tried for alleged funding of terrorism received a transcript of a phone call that the government secretly eavesdropped on - FROM GOVERNMENT LAWYERS. When they counter-sued for illegal wiretapping, they were told that they had no standing because the document they received accidentally was classified. Kafka would be proud. A US District Judge is attempting to get a copy of the document and he reinstated their lawsuit against the government. But as emptywheel notes, saying that the Obama Administration is calling for a stay of the court case pending appeal is a bit wrong:

As al-Haramain complains in its response, the Bush Administration appears to have deliberately held their appeal until "64 minutes before midnight on the last day of the Bush presidency." Two days later, Holder's nomination was held up in a highly unusual move. And the next day, a group of lawyers submit "Obama's" support for Bush's motion for a stay pending appeal. The lawyers defending the case remain largely the same: Douglas Letter, Joseph Hunt, Anthony Coppolino, and Alexander Haas, with only Gregory Katsas and John O'Quinn replaced by Michael Hertz. But Michael Hertz--who is on this motion as the Acting Assistant Attorney General but who was Deputy Assistant Attorney General under Bush--seems to be a loyal Bushie. (Here he is arguing against a bill that would make it easier to sue contractors based on information supplied by government whistleblowers.) In other words, the lawyers making this argument appear to be a team of Bushies.

In fact, to give an idea of the degree to which Obama's participation in this motion is negligable, check out the docket: they originally filed this with Bush's name, and not Obama's, on the docket.

So that raises a giant question: Given that the Republicans are stalling Holder's nomination even as they submit this motion, to what degree is this just the output of dead-enders in Bush's DOJ? Yes, I'm sure if Obama didn't support this in principle, he'd be telling Vaughn Walker about that right now. But it does not appear to be the product of the Obama DOJ because that DOJ simply doesn't exist yet. (Al-Haramain even cites Holder and Dawn Johnsen dismissing Bush's claims to the unitary executive to argue Obama would think differently of Vaughn Walker's ability to require the Administration to hand over the document.) But this was implemented, anyway, by Bushies, not Obama people.

Furthermore, given that Obama just appointed a critic of warrantless wiretapping to be the new head of the national security division at the Justice Department, I don't think we can fully say which way the Administration will go on this particular case. Obama voted for last year's FISA bill, so he certainly needs to be pushed on this issue, but I wouldn't make much of this particular ruling, other than to note that Obama's Justice Department officials need to be confirmed without delay. The beginnings of Administrations have this hybrid approach where remnants of the previous regime are still making policy decisions despite the new regime's installation. I don't know what can really be done about that - I still want Congressional scrutiny of cabinet officials - but it is a problem.

Not So Fast, Immunity Granters

Marcy Wheeler has a series of posts taking a look at some intriguing events in the courtroom of Vaughn Walker, the judge who the Bush Administration - and many Democrats - thought would be forced to rubber-stamp the immunity provisions in last year's FISA law. The biggest issue with that blanket amnesty was that we would never know the extent of the lawbreaking and that there would subsequently be no accountability for those who authorized and directed it. Well, Judge Walker isn't going along with that.

I just finished reading Vaughn Walker's opinion explaining that the government will have to give him the document that--the lawyers for al Haramain claim--shows they were wiretapped without a warrant under Bush's illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.

The al Haramain case was one where the lawyers for the prosecution accidentally gave the defense a secret transcript of the defendants (an Islamic charity), proving they were eavesdropped on without a warrant. At the time, a court ruled that even with a hard document like that, the defendants in al Haramain couldn't show standing, and they couldn't enter it into evidence because it was classified. Now Walker is essentially vacating that decision. Threat Level has more.

U.S. District Judge Vaughn Walker said the lawyers' amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government's motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation's spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush's spy program was unlawful.

The case concerns lawyers Wendell Belew and Asim Ghafoor, whose case appears now the most likely to lead to a ruling on the legality of Bush's warrantless-wiretapping program. That program started after the Sept. 11 terror attacks and involved various initiatives that peered into Americans' phone and internet usage without court approval — a surveillance program ratified by Congress last year in legislation immunizing participating telecommunication companies.

The deadline for the government to hand over the incriminating document for Judge Walker is the day before the inauguration. And Marcy lays out the additional stakes.

Remember, Vaughn Walker has more than just this FISA mess on his plate. He is also--as we speak--deliberating on EFF's suit to prevent the awarding of retroactive immunity to the telecoms for their role in the illegal wiretap program. In fact, last we heard from him, Walker was wondering why he shouldn't wait until the new President comes in, to see whether that President's Attorney General is really so sure that the retroactive immunity for constitutional violations was as legal as Michael Mukasey claims it to have been. BushCo, of course, insisted that it's unheard of for a new Attorney General to reverse what the prior Administration's Attorney General has said [...]

Mukasey has made his representations on this issue--both about the constitutionality of retroactive immunity, and about the legality of the underlying program--based on his typical crap about Yoo's OLC opinions.

But he's also about to hand over a document to Walker that proves that there are aggrieved parties that can sue the government for violating FISA. He's about to hand over a document that will demonstrate clearly that Bush broke the law.

It's going to be a lot harder for Walker to find retroactive immunity legal (not least because he's contemplating the same issues of separation of powers that has him so riled up here), and it'll be a lot harder for Mukasey's successor to continue to affirm the program itself was legal, if Walker is in the process of affirming that Bush broke the law.

Once again, when Congress cannot be trusted to uphold the rule of law, the judicial branch takes steps to bail them out. However, as mcjoan notes:

...it's very possible that we could finally have some light shed on the warrantless wiretapping program in this case. That should not, however, preclude Congress from finally conducting its own investigation in the form of a reconstituted Church Commission and the Obama administration from cooperating fully with that investigation. There really isn't a way for Congress to recover everything it lost in its myriad capitulations to a lawless administration. But a bright light shined on the whole affair might just keep it from happening yet again.

It will be interesting to see what the Obama Administration does with this once they come into office. The legal team assembled over the last few weeks doesn't seem like they'd be willing to carry forward Mukasey et al.'s warped legal theories, and yet Obama himself voted for immunity. Should be another early test.