After Judge Taylor, DoJ shifts tactics

by Kagro X

In the first case testing the legality of the NSA's domestic spying program since Judge Anna Diggs Taylor declared it to be both illegal and unconstitutional, the "administration" has apparently decided to take a new tack on the the question of whether or not the program violates FISA.

Whereas the "administration" previously conceded that the program appeared to be a facial violation of the statute, they nevertheless argued that it was within the president's "inherent authority" under the Constitution to order the surveillance, nonetheless.

And today?

Well, sit down.

The "administration" no longer concedes that the program violates FISA. In fact, it now argues for an expanded application of the "state secrets" privilege, insisting that no judge should be permitted even to reach the question the "administration" used to concede. The very question of whether or not the program violates the terms of FISA, they now argue, is itself a state secret. Or so says the NYT coverage of yesterday's proceedings:

The government also asserts that Judge Lynch should dismiss the case because allowing it to proceed would jeopardize national security. It says that neither the plaintiffs’ standing nor the question of the program’s lawfulness can be evaluated without exposing state secrets. The government has relied heavily on this so-called state-secrets privilege in a series of recent cases.

In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

“We don’t agree,” the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.” He added that the question could not be answered without endangering national security.

Statements from government officials that seemed to make the concession, Mr. Coppolino said, “may not be fully complete, as they have all indicated.”

Judge Lynch was taken aback by the shift in tactics. “This is the first time,” he said, “that I have understood that the government is taking the position that it is a contested issue whether this violates FISA.”

Judge Lynch said he did not recall anything in the government’s briefs on this argument. Mr. Coppolino was unable to provide a citation.

Frankly, at this point I'm unsure why they don't simply argue that letting "the terrorists" know that we have courts is a huge danger to "state secrets." After all, doesn't it embolden them simply to know that it's a possibility that the "administration" might one day be asked to account for itself?

Every time the Bush junta is met with questions, it characterizes their having been asked as a danger to national security. This is a runaway executive seeking to establish a doctrine of unconstrained and unconstrainable power. If it succeeds, this doctrine will by its very nature and definition be irreversible by any ordinary legal or legislative means.

Please keep that in mind as we "focus on the elections," and make plans to "govern" in the 110th Congress.

Thank you, and have a nice day.

Comments

[emptypockets]

is this a real gambit or another delaying tactic?

[emptywheel]

Let's hope this doesn't work out the way the last time an Appeals court heard BushCo talk shit when they knew they had been proven wrong. I'm thinking of Luttig's ruling that BushCo can't just change their arguments mid-stream (on the Padilla case). At which point SCOTUS prompty said, "well it doesn't bother us"

[Kagro X]

Well, I don't think it helps much as a delaying tactic. It might set the judge and his clerk back an afternoon or so, but no matter how the question comes out, expanding the reach of the state secrets argument doesn't add much in terms of slowing the case down, I don't think.

To tell you the truth, I'm surprised this wasn't the approach from the beginning. We've all watched enough movies to know that "neither confirm nor deny" is the standard answer to anything involving spying, no matter how absurd it sounds when it's delivered.

No, I think they're quite serious. They lost in Judge Taylor's court (and in Garr King's out in Portland, OR) because these judges aren't buying the "state secrets" cover on the question of the existence of a program the president has acknowledged. And how can they, really?

Well, one way to get other judges before whom the cases are pending to do the impossible is to argue that it's a breach of national security for them to do anything at all. So if they can't get them to actually do the impossible (i.e., pronounce a publicly acknowledged program's existence to be "secret"), then they'll force them into the equivalent of "neither confirming nor denying" that they were ever asked the question at all.

As a legal tactic -- long shot or not -- it makes some sense. As a sustainable system of open and democratic governance, it does not.

But whatever.

[emptypockets]

If I'm understanding this right, this case is not an appeal of the Taylor case but exists in a completely separate parallel universe in which exactly the same issues are being discussed. Is that right? Is there any actual encumbrance on them that encourages their logic in this parallel universe to be consistent with their logic before Taylor?

Not sure I like the sound of this, also from the Times piece you linked to:

At the beginning of yesterday’s argument,... Judge Lynch said he would “devote little time to the First and Fourth Amendments.” [...]
“Even Julius Caesar didn’t get to bring his armies back into Rome, although he did,” the judge said.

Does Roman history count as precedent? (and if it does, should it be given more weight than, say, the US Constitution?)

Thank you, and have a nice day (I may copy you and begin ending all my posts like that.)

[Kagro X]

Separate case, pretty much the same issues (possibly identical). No constraints regarding consistency, except that the judge will likely be cognizent of other current cases, and will wonder what you're up to in changing tactics. But he's still bound to consider and dispose of the arguments, whether they're consistent or not. He rules on what's in front of him, colorable though it may be by outside events.

Those two quotes from Judge Lynch are interesting. The first one doesn't tell me all that much, except that he appears to want to base the bulk of his conclusions on the statutory challenge and leave the constitutional issues for higher courts to address.

The second one was either just awkwardly phrased, or is imbued with deeper meaning. I think he was just trying to get the "government's" lawyer to acknowledge some limitations on the executive power, whether theoretical or otherwise. Even Caesar was supposed to have limits, he was saying. He wasn't bringing them up for their precedential value. Obviously, they have none. But they have rhetorical value: Is Bush less constrained than Julius Caesar?

We're all supposed to chuckle and say, "Of course not!" But here's where the awkward phrasing becomes interesting: "Even Julius Caesar didn't get to bring his armies back into Rome, although he did."

Did bring them? Or did "get to?"

He didn't really "get to," he just did. And once he did, the question of whether he "got to" was moot. Not only had he, but in so doing he had imbued himself with the power to "get to" if he wanted to. Now, I'll have to defer to a Roman historian on the question of whether or not Caesar made any efforts to maintain the fiction that though he did it, he acknowledged that he shouldn't have "gotten to," or whether he immediately argued that the "safety" of Rome required that he not only do it, but that circumstances should allow him to actually "get to," also.

Maybe that perspective will help us answer the question, "Is Bush less constrained than Julius Caeser?"

Tee hee!

[Kagro X]

Here's a note from someone I'd actually like to see get a chance to govern in the 110th Congress. Would someone like to perhaps point the man in the direction of a newspaper when he gets a chance?

Lamont said he does not support impeaching Pres. Bush and would not support House Dem efforts to move on an impeachment proceeding. Lamont: "I'd oppose that." More Lamont: "I don't think I've see anything that would be an impeachable offense."

[melior]

Summing up, Judge Lynch said: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power’?”

He added, “I have no idea at this point how I’m going to come out on this.”

How can there be any possible uncertainty in the correct answer to this rhetorical question?

I sincerely hope the judge is only attempting to emphasize his determination not to prejudge the case in a larger sense, because I have read this statement several times and it leaves me feeling ill.

[emptywheel]

Kagro

I think there is one significant difference between this case and just about all the others. CCR has defended a number of Gitmo detainees. As such, taps on their lawyers phones would impinge on lawyer-client privilege (such as it remains after PATRIOT). And there's a different argument to be made about standing.

[JohnLopresti]

I wonder how this got from appeal in the southern district of MI to now a district court in the southern distr of NY. Looking at Judge Gerard Lynch's info on the 'net instantaneously, he was an associate counsel in Iran-Contra, a Clinton nominee, Ashcroft, Helms, and the other reactionaries voted nay* in a fairly easy vote; I have yet to read the transcripts: either of his nomination in judiciary committee, or of the NYT-reported 3-hour hearing yesterday. GLynch graduated from Columbia and has been a prof there longtime; he wrote extensively on RICO. I think a lot of this demi-martial law material is baffling among many US jurists because precedent is sparse in US courts. If you look at the final pages of the Taylor opinion, there are a lot of footnotes which look, as Lysle Denniston observed obliquely, as if time constraints were a factor in the scholarship; I tabulate eight days from the promulgation of the Judicial Panel of Multidistrict Consolidation order in the telco cases and Judge Taylor's subsequent final opinion. However, I think she drew both the outline of the opinion, and the key rhetorical points well. In both her written remarks, and Judge GLynch's in NYT I sense we are hearing the open part of the discussion, and the government has a substantial amount of different material which it presents ex parte and in camera, though NYT omits any such reference; Judge Taylor expressed deference to that, noting junctures at which the invisible interchanges were affecting her public written opinion. Given Judge Lynch's academic bent, it would be delightful to find a full transcript.
Here is a link to a mixed overview of the adversaries in some of these cases, though written yesterday, and the landscape is shifting.
----
*Other nays: Brownback, DeWine, Frist, Gramm, Grassley, Hagel, Kyl, Lott, McCain, Pat Roberts, Rick Santorum, Nickles, Murkowski, McConnell.
Yeas: Daschle and Paul Wellstone voted for the judge; approved 63-36, Biden not voting. Snowe, and Chaffee voted for the judge, so did Ted Stevens, even Graham, Hatch, and Specter. The latter few made the Dems' work easy

[Kagro X]

It seems to me that ACLU v. NSA (Judge Taylor's case) and CCR v. Bush are essentially the same, actually. Both involve lawyers representing clients who fit the definition of the kind of targets the "administration" admits wiretapping, and both sets of plaintiffs seek to establish standing on the claim that the program chills their speech and impinge on their privileges.

Not that any of that matters to the "administration," which now argues in CCR (and will surely argue on appeal in ACLU v. NSA) that it no longer concedes (or possibly ever conceded) that the wiretapping violates FISA and that no court has the authority to decide whether it does, anyway.

Still more interesting than both of these cases is Al-Haramain, the case in Portland wherein the plaintiffs were accidentally provided by the FBI with physical evidence of warrantless wiretapping. The "administration," of course, says the evidence -- the actual transcripts of tapped conversations between the director of the Al-Haramain foundation and their attorneys -- should be unavailable to the plaintiffs, and will doubtless challenge their standing if the judge prohibits their introduction on "state secrets" grounds.

These. Guys. Do. Not. Care.

[JohnLopresti]

Sorry, KX, that I intermixed the two cases. I will check their websites. Here is a site you probably have seen, someone in the legal profession working with some detainees. I find counsel's sites too graphic to visit, if they have a lot of photographs; link.

[Warren]

If we follow the admin's logic to its "rational" conclusion, we'll have to stop talking about Katrina, New Orleans and ongoing (pathetic) rebuild efforts, since they show just how unprepared we are to handle a large-scale disaster, which is surely a "secret" that we wouldn't want the "tur'rists" to discover.

Perhaps Duh-bya could mention that fact to his Sky Daddy next time they're having a talk. Maybe he could even hint that any further "acts of God" will land JHVH himself inside a little cell in GTMO.

Surely that will keep us safe from future natural disasters, just as everything else the admin has done will keep us safe from man-made ones.

[Kagro X]

John, I was actually directing the comments on the CCR and ACLU cases to emptywheel.

Many of the other cases are, in fact, quite different, and target the phone companies rather than government officials and agencies. But those two are very similar.

[William Ockham]

The Julius Caesar reference is actually very revealing. The Romans gave wide latitude to their military commanders in foreign affairs, but bringing troops into Italy was pure treason. This incident gave rise to the phrase "Crossing the Rubicon" to mean making a decision for which there is no turning back. The Rubicon was the boundary between the foreign and domestic world in Roman terms. The judge is making a statement that should be very disturbing to the government (i.e. things that are completely within your purview in foreign affairs can be totally illegimate in domestic affairs).

[Mary]

***************
Summing up, Judge Lynch said: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power’?”

He added, “I have no idea at this point how I’m going to come out on this.”

************************

Well, if he's already sure he's not going to be spending time on the 1st and the 4th, then it seems to me as if he has made up his mind a bit. BC the question, other than COngress saying "thou shalt not have this power" is the Constitution saying it. Hmmm.

Really, why doesn't gov just give up on arguing anything other than the fact that however the judge rules is a state secret?

I'm still a bit in shock over the al-Masri state secrets fiasco.