"It's entirely possible that everything they think they know is entirely false"

by emptywheel

cboldt linked to Wired's liveblog from the warrantless wiretap Appeals hearing that took place today in San Francisco. Go read it. It may make you cry. Repeatedly, the government lawyers appeal to arguments outside all human cognition to defend their wiretap program.

"Was a warrant obtained in this case?" Judge Pregerson asks.

"That gets into matters that were protected by state secrets," Garre replies.

Judge McKeown asks whether the government stands by President Bush's statements that purely-domestic communications, where both parties are in the United States, are not being monitored without warrants.

"Does the government stand behind that statement," McKeown asks.

Garre: "Yes, your honor."

But Garre says the government would not be willing to sign a sworn affidavit to that effect for the court record.

[snip]

"Plaintiffs acknowledge that the room is central to their case and that they don't know what is going on in that room," says Garre. "Something else could be going on in that room. Just to pick one, it could be FISA court surveillance in that room."

Not that he's saying that there is FISA court surveillance conducted in the secret room. Just that there could be. Who knows? Presumably, Garre does. But he's not saying.

[snip]

Al-Haramain Foundation attorneys, he points out, "think or believe or claim they were surveilled.

"It's entirely possible that everything they think they know is entirely false," he says.

They appear to have decided that the only means to defend these programs is to dissociate reality from any logical assertions, thereby preventing anyone from winning an argument in court. It was bad enough when Rove (or whoever) claimed that, as an empire, we create our own reality, pretending that if we asserted that the Iraq War was going well often enough, it might not matter anymore that it's not. But here, they're just refusing to allow anyone to make assertions about the reality in which they live.

Your world must remain entirely indescribable by words, solely so they can vacuum up your words into their spy system.

Comments

[knut wicksell]

It's really quite remarkable, when you think about it. Just remarkable. I was floored by that sequence, which I just read over at the Great Orange Satan. They don't even have the balls the Nazi's had to put a philosophical argument for it. Just the straight, might makes right, with no further defense. I guess that's because we're in America and not in Europe. In Europe you at least need a bad argument to make a case. In America you don't need any argument at all.

[Mimikatz]

I just don't understand how the Court could give any credence to the Gov't's argument in the Islamic Charity case. the story I read said (per the defense attorney who saw it) that the document was really much more innocuous than the gov't claims. It must gove the whole program away. It sounds like the gov't is just concocting a scary story out of very little to cow the judges. The question is whether these judges will be like the German judges or like Robert Jackson at Nuremburg. Pregerson has a good reputation, but the argument sounded like it didn't go well. Could it really be that "Islamic charity" is such a scare word?

[bmaz]

I dunno, I didn't think the "liveblog" looked that bad at all. Some of the comments sure were negative. There is just no way to really tell from a cold transcript; especially when you don't know the relative applicable experience level of the blogger. There are plenty of very good lawyers, that haven't played in these kind of forums before, that would have no clue what is going on. The audio recording will be much more telling. I think I can read Hawkins attitude in general from the audio. It appears my fears about McKeown may be accurate on the ATT portion though.

[emptywheel]

bmaz

Bad, in terms of the good guys winning? Or bad, in terms of, I can't believe a so-called-Democracy is making this argument?

[Jodi]

emptywheel,

why not consider the converse of your heading above?

It's entirely possible that everything that the people on TNH think they know is entirely false

[Elsie]

Well, Jodi, you've certainly provided us with enough evidence of that in YOUR case....

[bmaz]

You ought to know me better than that by now. Heh. No, the Bushistas and their Gordon Gecko corporate sidekicks were clearly beyond the pale. If the liveblog was anywhere near accurate, there were snippets that could have come right out of Orwell. That ought to be patently unacceptable in this country; but, strangely it is not. My comment that it didn't look that bad was from a plaintiff's standpoint; that is the only side of these kind of cases I have ever known. Appellate oral arguments are not like a trial where there is some linear flow from which to gauge the ups and downs; they are kind of point and shoot deals where you just have to evaluate what seems to concern each panel member, and what doesn't on a given issue. Pregerson has the reputation for being the kind of man that would be violently offended by the government's conduct and arguments. Mike Hawkins is not of that kind of hard core liberal bent, but he put in a lot of years as a private criminal defense and occasional civil rights trial lawyer; and before that was the USA for Arizona for a few years (maybe 77-80 or so). He is old school though, and in spite of a law and order nature to some extent, I fully believe he would be seriously offended by this crap, at least on a personal level. If he rules against the plaintiffs here, it will be because he could find no way not to. Of course, it has been a long time.....

[Kagro X]

Yep. Pretty nuts. This is the case I've been pointing to for a year and a half to illustrate how far they'll go.

And the AT&T companion case is nuts in its own right. We know the whistleblower is lying, because our records indicate he didn't have access to the room that doesn't exist. Oooookay.

[chch16]

It's strange to me that I can't find any recent coverage of these cases that were argued in the Ninth Circuit yesterday afternoon by the New York Times. Not a peep out of Risen, Liptack or Linda Greenhouse, who doesn't have any S. Ct. activity to cover until previews of the term in late September unless she wants to muse about the usual long luxurious paid vacations in Europe.

I've been hitting a lot of blogs, and I've seen very little mention of it which I perceive is an index of how apathetic Americans have become who are getting the democracy they deserve chewing on a now completely eviscerated Bill of Rights. Nada on FDL--it's not on their radar at all strangely. All of the media is suddenly a flutter about the quietly passed legislation that allows Fredo Gonzales to speed death penalty cases along, but for years they have been silent on the ridiculous state court trials that have occurred or the pathetic appellate review in bastions of legal ignorance like the Fifth Circuit, and the legions of prosecutors who have oppossed DNA testing that might prove innocence.

Salon is based in San Francisco where the oral argument took place, and the famed ATT Wiretapping parlor on the 6th floor at 611 Folsom Street is located, but not a trace there yesterday or today. I trolled many of Glenn Greenwald's excellent columns but not a nanoscintilla of mention of the ATT wiretapping case--I would have expected him to comment and analyze the absurd defense by the yellowbellied government.

Of course the Murdoch Street Journal that published no news stories on the Libby trial until Scootie was given a walk except for wacky editorials from Rabionwitz and Vicki Toensing has had no coverage of this appeal.

I was glad to see that Marcy has brought it up. The EFF whose attorneys are involved in the appeal has summaries of events and rulings in this appeal:

EFF's Class-Action Lawsuit Against AT&T for Collaboration with Illegal Domestic Spying Program

I haven't heard any recent mention of it by any Dems in Congress or in the Senate, and of course the candidates won't touch it either the bozos on the Replublican side including Thompson (he of the phantom internet candidacy with no cogent positions other than his aphorisms uttered on Law and Order) or Obama, Clinton, and Edwards and the tagalongs.

The trophy wife who looks like his daughter directing Fred's campaign may want to consider just weaving sound bytes from the script of Law and Order reruns to safely avoid taking any position.

It's particularly surprising to me, (but maybe it shouldn't be at all), that those on Senate Judiciary posturing that they are hot to subpoena Rove and Miers although half of them led by "talk tough and do nothing Specter" think it's copascetic if they testify in private, without a transcript, and not under oath as if lying to Congress lately has any consequence whatsoever) and perhaps other architects of this wiretaping have not been mentioning or pressuring ATT, Comcast, Sprint and other ISPs and phone service providers who are contributing to huge data bases of conversation, search engine records, and email to cough up their warrantless wiretapping activities during the last several years.

ATT has been intrepid and adamant for months that they aren't breaking any law, while hiding behind the skirts of the Gonzales family and the Fielding family and this eggregios state secret argument. It will be interesting when, if the oral argument's questions were any indication of the opinion, and they often are not, how fast this case gets taken en banc by the Ninth Circuit in an attempt to affirm the state secrets argument.

Appeals court may let NSA lawsuits proceed

ATT has repeatedly claimed this wiretapping never happened, but they, DOJ, Fielding, Cheney, DNI Mike McConnell, Chertoff, and Allen, the Homeland Security intellegence chief who is controlling the new satellite snooping that will be taking pictures of everyone but them,(since Cheney's houses are off Google Earth), are so desparate to use the witless gutless "state secrets defense" as cover that they will lie incessantly to deny it exists.

There was a story yesterday on the front page of the Murdoch WSJ of all places that dovetails nicely with this case:

U.S. to Expand Domestic Use of Spy Satellites

It was also amusing to me that the paranoid government was allowed to get away with the bizarre appellate brief writing conditions of one of the attorneys for the palintiffs who was forced to write his brief under security guard watch at DOJ offices in San Francisco--I wonder why he didn't move for the court to stop this absurdity or inflict similar conditions on the government when their bullshit artists who have become state secret aficianados wrote their briefs.

How lawyer navigates sea of secrecy in bizarre case

[Kagro X]

Actually, the case was argued today (Wednesday), so I would expect not to see newspaper coverage (if any) until tomorrow (Thursday).

[bmaz]

I think I saw something at NYT, but didnt look at it yet. The liveblog that cboldt linked to is not up to the standards of the locals here, like you, Marcy etc., but it appeared to give a feel for the proceedings, if you haven't looked at it already. I wonder how many national press people actually went and witnessed it live. My bet is not many, couple of pool/wire types, some Calif.interests and couple of locals from SF.

[you haven't banned the troll yet ?]

i have deliberately skipped reading the comments for the last couple of weeks hoping that the resident concern troll had gone elsewhere ( i was hoping that Potter kid had whipped up some nifty wand magik on the concern troll ) but no such luck.

well, back to just reading the post itself.

there are blogs that ban concern trolls that add no value what so ever to the proceedings.

[chch16]

If anyone does know where you can listen to a recording of the companion cases,of the oral argument if there was one allowed since I suspect that the rapid transcription services are all for a price and may not have been allowed, I'd very much appreciate seeing a link.

In some Circuits (maybe all), even to bring in a court reporter for oral argument you have to make a motion for "leave" to do it--and in most cases I doubt it would be denied, but in these puppies considering some of the bizarre briefing conditions for Oakland attorney Jon Eisenbrg in the Al-Haramain Islamic Foundation case, who knows.

What I meant was that I didn't see anything in the NYT leading up to the oral argument (it was Thursday on the East Coast when I posted) as I did on scattered ezines and some newspapers, and given their arguable lead in breaking some of the wiretapping stories in the last two years (after Bill Keller held it for over a year) I would have expected it. There were also the intriguing negotiations of Jim Risen and Eric Lichtblau and the NY Times over what the reporters would "let" them publish and would save for Risen's book.

I want as many people to pick up on this as possible but again the apathy/ignorance that it's happening is overwhelming on the part of most Americans. The mainstream TV media of course that repeats the same clips about 100 times in a 24 hour news cycle--Mine tragedy, murders, Mike Vick's inevitable plea bargain, Britney and Kfed and more Kfed and Britney is way too airheaded to pick up on a story with any substance.

Judge Pregerson summed the absurd argument of the government that has been quoted up well when he said:

"The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"

After the government shoveled their surreal argument into the courtroom Judge M. Margaret McKeown's response was "I'm feeling like Alice in Wonderland."

It was humerous and typical to me that the DOJ attorney Garre backed down when the panel asked him if they would sign an affidavit denying ATT and government wiretapping.
From the CNet news article I linked before:

"What would be wrong with a a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant," Hawkins asked.

"Without admitting or denying that the government has a relationship with AT&T, I, Mr. or Mrs. So-and-So from the executive branch under oath, essentially affirm what President Bush said," McKeown suggested as wording for an affidavit. She said that because the government denies the dragnet program "and says they do not do any such surveillance without a warrant and there is no such program," the affidavit should be no problem.

Garre replied that such an affidavit is unnecessary because the president has already made a public statement.

"At least the public (would have) the benefit of a sworn statement from a public official," Hawkins responded.

[bmaz]

Link to NYT article (Adam Liptak)
http://www.nytimes.com/2007/08/16/washington/16nsa.html?hp

Link for audio file (available sometime after 12 noon PST 12/16/07)
http://www.ca9.uscourts.gov/ca9/media.nsf/Media+Search?OpenForm&Seq=1

[Smapdi]

The government has no way around the fact that they provided proof of wiretapping to AH through their own incompetence.

[Smapdi]

Jodi, did you find those wmd's yet?

[chch16]

Bmaz--

Thanks much for the links and the context/background on the panel members.

[Tortoise]

It's fascinating that Jodi apparently cannot appreciate the absurdity of the government's argument.

Of course, Jodi's own comments here rarely extend beyond the mere statement of a contrary position, which implies that she may not fully grasp the whole "argument" concept in the first place. Certainly her behavior seems to fit the pattern presented in Cleese, Palin, et al. (1972)

http://www.youtube.com/watch?v=teMlv3ripSM

[cboldt]

I hit the following blogs, and often get news that doesn't make the news:

http://howappealing.law.com/ Little commentary, great case cites. Has links to half a dozen stories on the 9th circuit's Hepting/al Haramain hearing

http://www.fas.org/blog/secrecy/ Good technie stuff, lots of what is supposed to be "public" but is purposely buried. The legal analysis is mediocre, but the raw material is awesome.

http://natseclaw.typepad.com/ Not "hopping" with action, but is one of the best legal resources on detainee, law of war, interrogation materials. Bobby Chesney routinely cites to others in his league.

http://www.scotusblog.com/movabletype/ Stays on top of detainee cases, and everything else that is perking its way to SCOTUS. Outstanding legal analysis. Lyle Denniston is a treasure.

http://jurist.law.pitt.edu/paperchase/ Touches on international affairs that tend to not make a big splash. Good links, sometimes the legal analysis is flat out incorrect, but the raw material (links to opinions, etc.) and notice of some international events puts this on my "visit regularly" list.

http://balkin.blogspot.com/ Hits a few timely issues that aren't making a splash. I often disagree with the legal analysis here, but it's always well composed and reasoned.

There are others too, for specialty stuff. On the NSA thing, Center for Constitutional Rights and EFF, being parties, tend to have up to date information.

I tend to not count on the mass media to keep me "informed." So much of what is published misdirects from what the underlying issues really are, except in the most superficial sense. Not worthless by any means, but the information delivered by media isn't, on it's own, going to make an accurate impression of reality.

[Rayne]

Thanks, cboldt. I hope that Groklaw.net migrates to coverage of the NSA suits once the dust settles on SCO v. Novell.

[chch16]

Nice links and dead on assessment of the mainstream media, cboldt. I've been using Howard Bashman's "How Appealing" site for a good while because it will direct you to many major cases and developments--and I entirely agree with your description of Balkin's site.

[Basharov]

The problem with Balkin's site is that it is infested with the crazy and moronic musings of ambulance-chasing attorney "Bart", who was so annoying on Glenn Greenwald's original site that Glenn finally banned him (and Glenn doesn't ban anybody). Until Balkin boots "Bart," it's a waste of time to wade through the comments trying to ignore him.

[MarkH]

Bush & Co are obviously traitorous criminals and are overturning the Constitution one piece at a time.

Today Padilla was found guilty without any real evidence shown against him. I certainly hope the jurors don't have to find themselves in the hot seat any time soon. They might not like it.

So, we have no Habeas Corpus, no 4th Amendment, no privacy (local cops get spy satellite access), no accountability from the Executive branch (just 'national security' repeated over and over) and what's left?

Rule of Law? Heh, they could care less what is written on paper. They don't need no stinkin' laws!

We either learn to live with this crap or we oppose it completely and overtly. There is no middle ground.