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November 16, 2007


So it becomes a matter of, can the Executive branch circumvent the laws written by the legislative branch by classifying Executive Activity that violates the law or Constitution as a State Secret.

We've already been there - that was exactly the Keith case. Meese followed the plane case steps and filed an affidavit claiming secrets to effect cover up of the illegal tapping and it was tossed.


Can you explain your last sentence in more detail? Thx.

It's beginning to feel like we should have had a tea party six years ago. Or we need to have one before the next election.

Where do these guys come up with things like 'state secret' to protect the government from the consequences of its own crimes, anyway: the Tudors? any country with state secret police?

(FWIW: when I looked at the comments on this at the LA Times website, quite a few of them were along the line of 'WTF?')

I'm increasingly disturbed by the fact that they've also effectively gotten rid of attorney-client privilege. Both this case and the CCR case allege that they were wiretapping attorneys for defendants. If that's true, then why aren't we making a stink about legal rights to be represented? (Though, most of the CCR lawyers are represeting Gitmo detainees, so maybe that's their excuse.)

Mary -- Does that mean if the charity appeals the 9th's decision to the Supreme Court that there is still a chance that this ruling will be overturned?

I wouldn't be SO negative about this. Here's my reasoning.
First. FISA represents a statutory change to the law of state secrets. The privilege is (or was) a wholly judge-made creature of the common law, arising (primarily) out of Reynolds v. United States, the 1950s B-29 crash case. So, when Congress passed FISA, they (implicitly or explicitly) put some restrictions on the judge-made doctrine of the privilege.
Second. FISA contains within it specific provisions giving the private individual wronged legal (and, IIRC equitable) remedies. You know, $1000 a day or some such. Classic statutory interpretation doctrine says that (1) Congress does not enact laws which have no meaning, (2) Congress knows the common law when it enacts statutes, (3) Creation by statute of a private cause of action is not done that commonly and, when it is (especially when done as specifically and explicitly as Congress did in FISA), it is a clear signal that Congress wants the remedies in the statute to be given to appropriately situated plaintiffs. So...
Third. In a conflict between the common-law privilege of state secrets and a statutorily granted private cause of action for relief, when the subject of the cause of action would be barred by the common law privilege, the privilege should fail. This, because the privilege was in existence at the time of the statute's being passed, and Congress would not have passed a statute inconsistent with the privilege. Because Congress does not enact meaningless laws. Saying that the proof of a violation of a statute forbidding wiretapping is a state secret (and therefore subject to the privilege) would preclude the later-created statutory cause of action makes no sense - it's the privilege which should fail.

I'm sure the judge will find a way to make it go away.

There there EW, the government only wiretaps GUILTY people. See how easy that is? Executive branch law enforcement establishes guilt without even having to go to trial. It's so much easier that way, and faster, too! Why, it works so well, we can just do without the Judicial Branch. Afterall, they needlessly cost companies lots and lots of money defending themselves. We can't have that now can we? Just one branch, yep, that's all we need... (/snark)


That's precisely teh question the district court has been directed to consider, right?

Which leaves open the small chance that that's what the 9th wanted back...

bmaz, want to weigh in on your 9th circuit gut feel?

scribe -- you lost me. Are you saying that the privilege claim of state secrets should fail? If so, and given the fact that it didn't, why should we not be negative?


Check out the Ryan Singel quote from the plaintiff's lawyers I added as an update.

Just saw it EW, thanks. I had not picked up on your "threw most" link earlier, so didn't realize the case was still alive to some degree. My bad. Sorry, but heck it's Friday afternoon and almost beer thirty :)

I got to run pick up a check from a client (wife very big on that). I think the 9th was asking for exactly what they remanded for. But that is awfully off the cuff, I have not yet read the full decision. cboldt is not thrilled with the chances of the "FISA process" referred to by the Court; I think it may be a little more positive than that, but will have to look more closely. I will say this, from what I know, I think the ruling that a fucking call log (that could be redacted of any info not pertinent to al Haramain) is properly excluded by state secrets assertion, is crazy.

Well, it's not just the call log, it's even the memory of the call log.

Go pick up your check. Soon as phred calls me I'm going to go get a beer.

By the way, from a lawyer's perspective (we may wish otherwise, but we don't count), Tom Nelson is correct to not continue this as an interlocutory issue further at this point. Go back, litigate at the District level and appeal this later if necessary.

This quote is helpful in understanding the current situation:

After in camera review and consideration of the government's documentation of its national security claim,we also agree that the Sealed Document is protected by the state secrets privilege.

Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation. Al-Haramain also claims that FISA preempts the common law state secrets privilege. We remand for determination of this claim.

We shouldn't give up quite yet.


"Al-Haramain also claims that FISA preempts the common law state secrets privilege. We remand for determination of this claim."

is the shorter version of what I said above, in which I laid out the basic contours of the reasoning.


As to this question:
"scribe -- you lost me. Are you saying that the
privilege claim of state secrets should fail? If
so, and given the fact that it didn't, why
should we not be negative?"
If I recall correctly, the argument on this appeal was from a government motion to dismiss for failure to state a claim (or a similar argument) made solely on the basis of the pleadings (or with only a tiny bit of additional fact added). The issue of FISA preempting the common-law privilege was not an issue on the appeal. The government did not raise the issue of FISA preempting the common-law privilege because that would have been contrary to their core argument, which is that the state secrets privilege is all-encompassing and subject to no limits. The "FISA preempting the privilege" argument is a limitation on the privilege, so the victims would have raised that issue as a defense against dismissal.

BTW - I don't like using the word "preempting" in this context as it has an entirely different legal meaning. But, since it seems to be the word everyone's using in this context, I'll go along. In reality, FISA would "negative" the privilege, by erasing it from all cases within the ambit of the private cause of action the statute creates.

scribe -- thanks for the follow up. Part of my confusion was due to misreading the original post. Still I appreciate your more positive take on this than my original reading.

This is just a test to see if I can enter a comment. I love Marcy!

another test.

-- cboldt is not thrilled with the chances of the "FISA process" referred to by the Court --

I'm trying to figure out how it isn't a Catch-22 of it's own right. How does al Haramain establish the status of being an "aggrieved person" under 50 USC 1801(k>?

(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

That's a necessary prerequisite to get to the right to court review of the surveillance, under 50 USC 1806. I'm wondering whether the court will construe what looks to be a general opening for "getting in":

whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter

... as establishing a right to discovery in a civil case brought by a person who claims to be aggrieved. Looking at the remedy in 1806(g), I get the feeling that 1806(f) is aimed at in-trial action, to wit "suppress the evidence or grant the motion." That's not the same as "grant the relief prayed for in the complaint." It's motion practice.

Looked at another way, FISA may in fact serve to undercut state secret, but only in the context of a trial brought by the state against an individual or an organization. And already, in that context, the courts are free to adjust the trial process (even determine the outcome of the case) if "state secret" evidence is excluded from consideration.

All the above is just my first cut through the statute -not having reviewed al Haramain's brief on the argument, or anything beyond the short statement in today's Opinion by the 9th and the cited portions of FISA.

One other thought. Go back and look at the definition of "aggrieved person." That person has to be subject to "electronic surveillance." Now reflect on the redefinition of "electronic surveillance," where acquiring international communications is NOT electronic surveillance. Hence, no aggrieved person under the new FISA regime.

For those headed to Boston, esp. phred:

Glad to hear it! We (hubby and I) will definitely be at the conference tomorrow afternoon, so hopefully we can meet up there.

Otherwise, the plan is to meet up afterwards at An Tua Nua on Beacon St. If you don't make it to the conference, I think it will be a safe bet that BlueState and I will be easy to spot as we are both redheads (unless her name is misleading ;) Plus the hubby will be with us, a big handsome fellow with a beard
Your got it phred--of course it's the hair that's red and not the brain. Pleeeeeeeese.
Red hair, medium length. Old enough to have learned to type on a typewriter.
What to do? Wear a Kossackian orange flower? A red sox hat?
Got it. I will be wearing a purple/lilac button the size of an old silver dollar that says Seeker, as in Quiddich. My reading glasses when I wear them are vaguely Harry Potterish too.

BTW, how did you figure out I was she?

And what time at An Tua Nua?

Slippery Slope: Dictatorship

This case is essentially saying there are two standards: One for the tovernment that it can ignore; and another for the public that isn't respected. That's not defense or enforcement of any standard or right, but abdication and deference to tyranny. If that is the standard -- that all evidence of illegal activity can be calssified as state secret -- then we have a dictatorship. That is not Constitutitional. This ruling does not appear, on its face, to be consistent with the Judicial Officers' requirement to fully defend the Constition against domestic enemies.

Judicial Oversight: Prosecution Plan Against Judicial Officers?

The next step: What about a Judiical Ethics challenge in re oath of office? Precednet: Geneva/Nuremburg Justice Trials which required judicial officers, attorneys, counsel, and judges to face consequences for not fully defending the laws of war.

Refusing To Adjudicate War Crimes Out Of Inconvenience?

Using this rationale, Hitler could've classified the Holocaust as a State Secret, and ended the Nuremburg trials, in effect saying, "Sorry, we don't want to be held accountable. We didn't plan on being detected during the Holocaust. So the trials must end." Legal outcomes like that might have sparked WWIII bewteen the Allies.


Can't classify evidence related to illegal activity. ORCON rules in the Executive Orders prohibit classification of illegal activity. Back to this case: Having trouble on this issue for one reason: Inadvertent disclosures of evidence, and the opening the barn door theory. Once evidence is disclosed, even inadvertedly, that evidence is admissible.

Appearance of Injustice

How do they justify closing the barn door? That makes no sense. Especially when everyone knows about it, and it doesn't seem just to ignore evidence of illegal actdivity. That's circular. The public -- outside court -- knows the actdivity happened. Surely, the legal opinion of the court excludes the evidence, but that doesn't ensure the offending conduct ends.

This isn't justice. This is a whitewash to justify an illegal coverup of governmental incomptence, illegal activity, and abuse. ORCON prohibits classification of infomraiton to suppress data about maladministration. Regardless the legal outcome, the public still needs to have confidence that there are internal controls within NSA -- if they exist at all -- to ensure this abuse is overseen by a court with the warrant process. NSA's answer apparently was to ignore FISA Court, then pretend that the violation is a state secret. That's tyranny.

  • 1. Reversal On Admissabiilty: Exceptions

    Why aren't the inadvertend disclosures of illegal activity admissible, regardless State secrets claims, when that activity is clearly unlawful?

  • 2. Private Privilege Second Seate to Public Abuse of Power

    On an issue of illegal activity, how does the Court Justify putting (a) "state secrets claim" -- a privilege, which violates an attorney-client privildge -- over (b) the privilege of clients and counsel in re private communcations?

  • 3. Undermines Confidence in Judicial System

    How does the US government -- including the Judiciary -- justify classification, suppression of evidence, or evidence shields of illegal activity? Voters know about this; and this information can lead to other lines of public evidence.

  • 4. Poisoned Fruit Doctrine

    How can law enforcement, relying on illegally captured information, pretend they have the "inevitable discovery"-doctrine, but the original reason they're they're isn't lawful? It's infuritating that law enforcement officials lie in court; but then claim a "superior privildge" to vioalte the law, and not be accountable; then they reverse themselves, and say the US government misconduct isn't actionable. That's not oversight, but a green light to tyranny and abuse.

  • 5. Oversight Reforms

    Putting aside the abuses, what's the plan of the Congress to acquire an NSA-like system to, without notice, audit the Executive Branch data retention to ensure compliance with Congressional Acts?

  • EW - I'm sorry I was vague and sketchy, it was a driveby. By the "plane case" I meant Reynolds (I'm incredibly bad with names, much better with facts, so if I haven't been working with a case for awhile I'll refer to it by a feature of the case instead of going to look up the name - sorry). And in keeping with my name failings, I should have said Mitchell and not Meese.

    So the plane case, Reynolds, basically determined that for military and national security state secrets, there were three elements to be addressed to properly invoke the privilege.


    Judicial experience with the privilege which protects military and state secrets has been limited in this country. … It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.

    In the Keith case, there was a formal claim of privilege (Mitchell alleged national security reasons as the basis for refusal to give the tapes to the defense), it was made by the head of the dept that controls the matter (that's why Mitchell as AG and not any of the AUSAs or USA handling the case filed the affidavit) and after Mitchell's review of the information at issue.

    So in the Keith case, Gov asserted the illegal wiretaps should be protected as a state secret and http://www.mied.uscourts.gov/historical/newspdf/Court%20Legacy%2011-03.pdf when the defense made the request for the surveillance tapes,
    … the government’s “bricks and mortar” case suffered its first real set back. In response to the defense/prosecution stipulation, Attorney General Mitchell filed a sworn affidavit with the court stating that: Defendant Plamondon has participated in conversations which were overheard by government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government.

    Accompanying this affidavit, sealed records and files were submitted for the review and inspection of the Court in camera. Simultaneously, the government filed a motion to dismiss the defendants’ request for disclosure of the surveillance evidence. In his affidavit and in the government’s brief, the Attorney General certified that public disclosure of the facts concerning surveillance of the defendants would prejudice the national interest, …

    In his decision granting the defendants’ motion to disclose government surveillance, Judge Keith rejected the government’s position, known as the “Mitchell Doctrine,” which asserted that the Attorney General, as a representative of the Executive Branch, had the inherent constitutional power both to authorize electronic surveillance in “national security” cases without judicial warrant and to unilaterally determine whether
    a particular circumstance falls within the scope of a “national security” concern.

    I think that's where we are and it basically ties to the Nixon subpoena case as well (with the court noting the particular powers and duties of a court when criminal activities are involved) and with why Presidential classification orders have, on their face at least, claimed that illegal activities would not be classified. They are making a big goobledygook about the technical end bc they are trying to make the coverup of illegal activities seem so intertwined with "methods" that you can't discuss the govt crime without also giving away ultraimportant national security technology information. That's really how they are trying to distinguish from Keith - trying to make a secret technology claim they couldn't in Keith and then trying to bootstrap on a claim that the gov can violate law for years with impunity if bringing them to task would mean disclosing secret technology. IMO, FWIW - that 's where they are distracting the judges with bright shineys.

    Otherwise, the Sup Ct. has looked at the balancing of an invocation by an AG of state secrets based on national security concerns v. a court's examination of the illegal or unconstitutional activities of the Executive Branch making that assertion, and said nah - you can't break the law (or violate the Constitution) and then escape judicial review merely by classifying your actions as secret. That's the Keith case to a T.

    It even had the arguments of "don't all these domestic activities tie to foreign power threats and make it foreign and more exclusively Executive Branch" that DOJ is claiming now.

    The tap was perfectly legal, they said, even though it had been installed without a judicial warrant, because warrants are not necessary in cases involving a threat to "national security." This is true not only for the traditional danger from a foreign power, the Justice Department maintains, but also for the security threat posed by the current radical protest movement. Besides, the Government said, the overheard conversations had nothing to do with the bombing charges, and the tap was on the phone of another organization, not the White Panthers.

    In his argument to the Supreme Court last week, U.S. Solicitor General Erwin Griswold insisted that radical protests within the U.S. are "interrelated" with security threats from abroad. The Government was merely gathering intelligence to protect the nation, he said, not deliberately seeking evidence for criminal prosecutions. If each case had to be submitted to a judge to get a warrant, Griswold added, "the Government would have to disclose sensitive and highly secret information." Judges, he said, are not as qualified as the Attorney General to make the "subtle inferences" involved. Even though the Attorney General might abuse his power, that "is not a valid basis for denying [him] the authority."

    [BTW - some involved in the case have speculated that the Sup Ct's ruling in Keith was leaked to the WH before the case was published and this might have been the real reason the "Plumbers" were at the Dem headquarters - to remove the taps that they believed could have been claimed to be "legal" if the case had gone the other way. ]

    One more resources, just to give some flavor:

    Responding to defense motions, the government admitted that they had obtained evidence from a bugged phone, and that there was no warrant. While defense lawyers and Judge Damon J. Keith sat open-mouthed, the government tendered an affidavit from the attorney general, John Mitchell -- soon to be of Watergate infamy. Mitchell stated in writing that he, on behalf of the president, had the authority to order wiretaps without judicial approval to "protect the nation from attempts of domestic organizations to attack and subvert the government."

    By itself, this case might have been a weird wrinkle in turbulent times. When comparing notes nationally, though, progressive defense lawyers realized there was a pattern. Mitchell had done the same thing in the Chicago 7 / 8 case [internal link] and in a Black Panther trial in California. Something was up. The attorneys came to a conclusion that shocked them: The Justice Department was openly demanding judicial approval of a scheme in which the president alone, without legislative advice or consent, without judicial oversight, decided when the Bill of Rights [internal link] would be suspended, and which citizens' rights would be overborne. The designation "subversive" would not be defined. "Probable cause," the ancient, Constitutional requirement, would not be shown. The lawyers were aghast not only at the arrogance of the government's position. They feared that the government might win. Mitchell's Justice Department would not have opted for this strategy -- no longer denying the illegal bugs, but admitting them, and telling the courts to find them legal -- unless they were confident in their position.

    There was also the constant drumbeat of those who objected to the war being cast as the enemy themselves and this was mentioned in oral argument:
    He said that two weeks previously, a Nixon administration official (H.R. Haldeman, though Kinoy didn't name him) had claimed that the Democrats were giving "aid and comfort to the enemy." Under the government's scheme, such a designation would open even the political party out of power to warrantless eavesdropping by whoever held the White House.

    And I think all of this also ties back to the issue I have tried inelegantly to bring up at times: That while everyone excepts FISA as a the touchstone, there are provisions in it that have never had true review (and indeed, the statute is set up in such a way as to seemingly deliberately deny review by making sure there can never be a plaintiff other than gov) and there has in particular never been any review of the overlay of what the Patriot Act did to FISA - which was an attempt to allow FISC orders to issue without a showing sufficient for a criminal warrant, and yet for the purpose of using that order and information for criminal prosecution, as long as there could be some claim that the surveillance was also for "foreign surveillance" puposes.

    All fwiw.

    For me - I'm re-reading Scott Horton's piece on the IG report on Arar.

    Call to Action: This outcome is not acceptable, unconstitutional, clearly erroneous, and unjust.

    Judicial Rubber Stamp, Refusing To Assert Power To Check Executive Encroachments

    We don't need to worry about about a DNC rubber stamp; we've got one in the Judicial branch. So much for Checks and balances, Geneva, or FISA. Calling everything a state secret isn't a solution, but takes us back to 2001, and the days of Addington-Gonzalez: "Ignore the JAGs, just keep it secret, and we'll torture these people."

    Using this "logic" of this case/opinion, the President -- in ignoring FISA, and stating what he was doing is a "state secret" -- is not actionable. Good grief. Am I still in the United States, under a US Constitution; or am I correct in equating this outcome with tyranny: If the President classifies something as a state secret, then he can -- on his own -- bypass the FISA court? That's nuts.

    Judicial Irrelevance

    So much for Checks and balances. The Judiciary should be appalled that the Preident bypassed FISA and didn't obtain a warrant. Where's this Judicical pushback against the Executive? On a basis of accusation alone, people were targeted illegally.

    Indeed, if the President, deciding he wants to engage in war crimes, and illegally render people to Syria, classifies that event as a state secret, then he can vioalte Geneva, and the US courts aren't going to challenge him?

    Wake up. The electronic data-interceptions were allegedly outside the FISA Court; and did not obtain a lawful warrant. If there are no judicail sanction for this, then what is going to keep the NSA on notice that they can't do this? Oh, that's right, they do it anyway; when they get caught, they make errors, then claim those errors aren't admissible." That's rewarding incompetent criminal conduct.

    Warrants Are Requirements, by Their Structure Implicit Admission Government Cannot Be Trusted

    What's with the DOJ OPR investigation reopening then? Relying on this ruling, as also the case with rendition, then the AG isn't going to review anything: "Sorry, I know I promised a reivew, US Senate; but its a State Secret. Can't review illegal activity anymore. Trust us." Baloney.

    Warrants are required because the Exeuctive Branch cannot be trusted; warrants are there to ensure Judicial oversight. It's absurd for the Judiciary, in failing to enforce the warrant requirement by assenting to "state secrets," to be taken seriously as a check on the Executive. Why don't they just go home, joing Congress, and we'll let David Addington take care of everything. Oh, we tried that, and look at the mess we have: Iraq, FISA violations, prisoner abuse, war crimes, rendition, and reckless US government oversight. This Judiciary is saying, "Hay, that's good enough." That's a definition of a goverment that refuses to enforce the law, vioaltes rights, and abuses power: One that is illegitimate.

    The same government that committed the original abuses is now rubber stamping that abuse as, "We can't do anything about it." OK, then this government has, by its inaction, demonstrated it is not serious about the Constitution, the oath, or the Supreme Law. We the People have to support the Supreme Law; but, depending on the weather, these apparent idiots in the Judicial branch can't figure this out. How absurd.

    Illusory Concern In Re Telecom FISA Liability

    What are the telecoms afraid of, why do they need immunity, if the courts aren't going to enforce the laws using the available evidence? What of the Qwest CEO refusal: He knew enough there was a problem; but the courts are saying, "Well, US Government, even thogh you ignored us and violated the law, the telecoms have nothing to worry about. It's all just a misunderstanding." Non-sense: The Qwest CEO was very clear on the problems, but not this Judicial Branch. More non-sense appeals to confusion.

    cboldt - I'm kind of with you. Plus, in Reynolds, there was a statute providing a cause of action and it was not deemed to have squelched the state secrets invocation.

    I do wonder if it's worth some claim that the legislation could be constured to open up a right of action in the FISC to individuals where the Government's invocation becomes bascially of no weight bc of the security clearance of the court. (I'm a belts, suspenders and more belts kind of person)

    But still, I think we already know when the common law state secrets invocation fails from Keith - it fails when it collides with governmental violation of the 4th Amendment.

    It may also fail with respect to criminal actions by the Executive Branch in general, based on separation of powers doctrines and the need for courts to be able to know what actions were taken to make rulings as to whether those actions violated the law, but I think that is a more generic and less FISA-centric argument and there isn't necessarily a lot about FISA that seems to make it a "different" kind of statute on the state secrets front than the tort claims act in Reynolds - at least off the cuff.

    Rubber, meet stamp.

    Videos Of Illegal Activity

    Abu Ghraib and GTMO abuses were adjudicated because of videos. What the court is saying is, "If we had videos of the NSA employees violating FISA, then that might be a different story. But written logs, no, that's nothing to be concerned with. Move along."

    Videos were enough to wake people up about Geneva violations. We've got videos on squad cars. Waybe that's what we need: Video surveillance of the NSA contractors; keep then archived with a special master; if there's a dispute, then the videos can be subpoenaed.

    Government Meddling

    These abuses were not just against foreigners. People in the United States -- on accusation alone -- were targeted, put on watch lists, and had their peronal papers gone through. Without Judicail oversight. Does that not offend your senses? This government -- to justify any action to thwart investigation, oversight, or questions of incompetence -- can label anything a "national security threat" or "unusual" to justify distracting attention from its abuse, and blaming a scapegoat.

    Where Does This End

    The idea of Judical oversight is to introduce a leash, or some sensibilites. To remove the passion, and ensure there is a reasonable path. This Judiciary is saying, "Ignore our prudent standards of sound logic, we'll defer to the emotioanl nonse-se of the Exeuctive."

    Think about scapegaoting. What did they do when cotton prices fell in the South, they find people to blame. There is a relatinship bewteen cotton prices and lynchings: When the prices fell, there was more frustration, and the Southerners took it out on the slaves.

    Same thing is happening after 9-11. After 9-11, the US government didn't take responsibilty nor said, "Our NSA messed up," but it tried to find someone to blame. Ignore the facts, just invade Iraq.

    The issue of this case today in re FISA is the mindless non-sense that is driving a Judiciary to not get involved, to assent to the US government's non-sense, and to put mindless abuse of power before the needed constraints within the Constitution. Thus judiciary is rewarding mindlessness, and abuse of power, not challenging it as it should.

    Invalid Appeal to Confusion

    This argument about "foreign surveillance" doesn't wash when the issue is attorney-client privildge; and the NSA logs. FBI even said, "Oops." If it was an "OOps," then they were doing something they shouldn't have been.

    FISA is very clear: Get a warrant, use the FISA court, and don't engage in illegal surveillance. Or is that still in dispute by the US government. "Oh, of course. . . it's all so confusing. . ." Appeal to confusion to make everyone believe you're compentent engouht to enjoy no oversight.

    Undermines Public Confidence In Governance Structures

    The US government can "nuance" the waning US public confidence in it's legitimacy. Cases like this will only mobilize the public to find a credible system of oversight which ensures this arrogant abuse of power doesn't occur; or, if it does occur, faces some meaningful consequences.

    NSA prior to 9-11 obviously botched something. A case result like this doesn't get us close to figuring out what non-sense is going on inside NSA; or what better oversight they need to do their job, work with the FISA court, or modernize the procedures/technology.

    Pakistan's Attorneys Woke Up And Took To The Streets In Protest

    What's it going to take American lawyers: Are you, as attorneys, not outraged that the NSA is intercepting your communcations based on assertion alone; and there is no judical oversight of that action? And what else is going on? People, on the basis of accusation and rumor have been targeted; but they've been targeted not because of any link to anything, merely because of grudges.

    POWs in GTMO, on accusation alone, are there merely because one of their neighbors had a grudge against them. The idea of warrants and the FISA court is to ensure that there is oversight, and to prevent the abuses. This Judiciary is making a circular argument to ignore legal constraints, and then reward mindless abuse of power.

    Mary | November 16, 2007 at 19:25


    In my view in re Reynolds (Classification of data lawful when purpose 'substantially' for national security reason), there are two different issues:

    1. The original illegal activity by NSA in violating atty-client privlege, which may be a state secret; and

    2. The attempted recapture of information which was disclosed about that original illegal activity.

    In my view, the court only addressed the first, not the second. Reynods doesn't automatically protect a reclassification of the disclosure: In that, the purpose of that reclassification isn't primary/substantally for a governmental purpose, but to hide evidence of illegal activity.

    The court, in my view, erred in pretending that the entire conduct -- from interception to recapture of that evidence -- what substantially for a national security purpose. Rather, Reyholds does permit a dissembling, allowing a non-classiifed review, which the court did not appear to support. Yet, in asserting that State secrets prevents any adjudication, they've failed to see the non-national security objective of the government in the second act.

    Vaugn Walker in re FISA litigation does appear to view there is a dissembling allowed as it relates to public knowledge of the AT&T effort -- so much is publicly known, the case can proceed; and the US governmetn illegal activity does not oblige the states to remain silent about state statute privacy violations.

    This is not just about the spying.

    It's what they did - and do - with All. That. Data. You say National Security, Karl says it's how he does his math.

    Ok, this is a little tongue in cheek.

    Shouldn't we stop discussing this because it is a secret?

    "Reading on" in the FISA statute, and adding an alternative to the discovery process of 50 USC 1806, I see a statutory civil remedy in the FISA statute.

    FISA itself provides a means to obtain damages, in the event of being an "aggrieved person." I still see the Catch-22 is obtaining a judicial finding that one is an "aggrieved person," but if that hurdle can be surmounted, FISA itself has a cause of action. That is, the "aggrieved person" need not be found ONLY in the context of a state-brought [probably criminal] case.

    50 USC 1810

    An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation ...

    The government defendant has a few ways to have the case dismissed, in addition to the Catch-22 barrier of the plaintiff's burden to establish that he is an "aggrieved person." The civil case is dismissed ff the plaintiff is an agent of a foreign power (see 50 USC 1801, this is a fact-intensive inquiry); or if the violation fails to reach the threshold described in 50 USC 1509.

    (a) ... A person is guilty of an offense if he intentionally-- (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance

    The government has stated publicly, but not admitted in court, that it has undertaken surveillance outside of the statutory framework of FISA. It says the surveillance was authorized by the AUMF. This argument would be brought to bear here, as well. Also, the phrase "color of law" would be hard fought, as the government actors have the fact of at least an EO or order from the AG. That is, they aren't independent snoopers.

    Which brings up an interesting question, that being whether or not the president can promulgate an order "under the color of law," and if he can, what the legal effect of that misstep is on his minions downstream.

    Finally, and repeating something I pointed out above, notice that all of the legal remedy and action depends on a finding of "electronic surveillance." Communications acquired by "NOT electronic surveillance" are shut out clean.

    May I just say, that as a non lawyer type, I feel that I should pay for getting to read such exquisitely well thought out posts.

    Very Juicy.

    Thanks for sharing your minds with us.


    There have recently been a spate of agitators applying to our court system. They complain that the State Apparatus has taken "oppressive actions" against them, all in secret.

    Comrades, of course these actions are secret! That is why you must not discuss them. All good citizens know that the General Secretary has ordered these things only to protect the Worker's Paradise.

    Court protections are a concept of a bourgeouise state of existence. But the KGB is not the Okhrana! The Revolution changed everything.

    You only aid the capitalist running dogs with these discussions of the secret actions taken by the State Apparatus.

    BlueStateRedhead --

    Electric or manual typewriter? ;) I'm guessing we're about the same age. We'll keep an eye out for the Seeker button and Potter glasses...

    As for my figuring that you're a she, must have been a pronoun at some point that tipped me off. Anyway, since we both live in a Blue State (same one at that, it appears) and we're both redheads, it stuck in the back of my mind...

    Oh, and the time for An Tua Nua is a bit fluid. I think the conference ends at 5, followed by a book signing, so we'll head over after things wrap up. I'm a sucker for a book signing though, so it may be a bit after 5...


    Thanks for the long clarification. I had hoped you might respond with such a great, detailed comment.

    cboldt,bmaz, so what you are saying is that although the courts seemingly ruled against the plantif in this case they, the court,left open a way for the plantiff to proceed through 1806g and f. I am I correct in this?

    -- although the courts seemingly ruled against the plantif in this case they, the court,left open a way for the plantiff to proceed through 1806g and f --

    In a word, "yes."

    The lower court refused the government's request to dismiss, but on the basis that al Haramain could make a prima facia case with a sworn affidavit that recited the contents of the state secret. The Ninth Circuit held that permitting the plaintiff to recreate parts of the state secret from memory would undermine the doctrine of state secret. Therefore, said the appellate court, if the case is to proceed, al Haramain needs a basis other than his own sworn affidavit.

    The plaintiff argued that FISA gives him a right of action that survives the assertion of state secret. The lower court did not rule on that. It didn't need to, because it found a right to proceed based on a sworn affidavit.

    Rather than reach a legal conclusion of first impression at the appellate level, the Ninth Circuit ordered the lower court to analyze the intersection of FISA sections 1806, 1809 and 1810 with an assertion of state secret. That decision will go back up to the Ninth for a review.

    In viewing the question for the first time, the lower court had this to say ...

    Pursuant to Section 1806(f), a plaintiff, if he is able to show he is an "aggrieved person," may seek "to discover or obtain applications or orders or other materials ...

    Without access to the "state secret" evidence that he was in fact under surveillance, I see no way for al Haramain to get past the qualification for proceeding. He has to show he was surveilled.

    It'll be an interesting decision. "State secret" has a way of turning everything it touches into a Catch-22.

    cboldt, mary, bmaz, and any other lawyers,

    As a non-lawyer, I have a couple of questions for you. Before I get to the questions, let me explain where I'm coming from. First, I'm old enough to remember when FISA was enacted and why. Second, I have a theory about some facts that the government has disclosed in camera to the courts, but not admitted publicly. I'll get to those in a minute. Third, I think the Appeals Court was asking the lower court to rule on whether or not FISA puts the burden on the government to tell the court (in secret) whether or not a particular party was spied on, assuming that party has a cause of action arising from the spying.

    Assume the following facts have been disclosed to the courts:

    1. The TSP involves gathering metadata (caller, callee, length of call, etc) for as many calls as possible (foreign, international, and domestic).

    2. That metadata is captured over fiber optic cables inside the U.S.

    3. Pattern analysis is used to identify targets for full-fledged wiretapping of international and foreign calls.

    Now, look at the definitions from FISA:

    Electronic surveillance” means— the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

    “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

    “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

    If I'm right about the facts (and I'm pretty darn sure I am), wouldn't a ruling that FISA preempts state secrets clear the way for Hepting? Wouldn't the courts almost be required to rule that the surveillance was illegal?

    -- wouldn't a ruling that FISA preempts state secrets clear the way for Hepting? --

    The Hepting plaintiffs have the same trouble that those in ACLU v. NSA over in the Sixth Circuit, namely that of obtaining standing in the first place.

    al Haramain is in a different situation, factually, but if the courts won't take notice of the fact because of state secret, then al Haramain resolves the same way ... no evidence that he was surveilled, therefor he can't establish being an "aggrieved person" under FISA, therefor not able to sustain a 50 USC 1810 cause of action.

    The opinion I formed at my first peek at al Haramain, months ago, was that it wasn't a good fourth amendment/TSP case because, for reasons independent of the FISA snoop, it may well have been abundantly reasonable to snoop.

    As for challenging the TSP and the creation of a secret surveillance state, if a Court finds that a prima facia case exists on a naked assertion of being surveilled, without evidence of personally being under FISA surveillance, it'd get swamped with suits to rule on. The Ninth has ruled that al Haramain's document is properly a state secret. I'm just not finding a way to get past the barrier of "state secret," regardless of some statute that purports to give a right of action.

    For challenges to FISA, per se, (where the government admitted surveillance using FISA) see Squillacote and Stand v. US.

    Darclay - That is exactly right; the question we now debate is of what value and moment is the alternative FISA/Section 1800 et. seq. pathway the court has left open and sent the case back to the trial court for determination on?

    You used the phrase "the courts seemingly ruled against the plaintiff". That kind of made me chuckle in a slightly sardonic way. This is something that has been bugging me for a while on these cases, and I don't really know how to put it into words, but I will take a lame stab at it. If you really size up what happened here, the court didn't rule against the plaintiffs at all. In fact, I will argue, the court pretty much validated and accepted the plaintiff's case, they are just saying it can't be heard because the Administration says so. There really is a rabbit hole quality to all this. The trial court and 9th Circuit appellate court have both seen and evaluated "the document", i.e. the call log. There has been no, and I mean NO, question or inference whatsoever as to whether it is, and establishes, exactly what al-Haramain says it is and does; the courts appear to accept that point unequivocally. (And for the other lawyers out there, no I haven't lost my mind, I understand that the merits have not truly been litigated, but I think the merits of the call log/standing issue have been litigated better than we are giving them credit for). I would like to toss something else out as long as I am meandering around outside of strictly technical legal analysis. Why the hell can't the court take some type of judicial notice of the document? All we are talking about is standing. The government either did or didn't surveil al-Haramain; the surveillance either was or was not legal. As the others here have already said so well, this just does not require any disclosure of sources, methods, technology or anything that needs legitimate protection via secrecy/classification. Curiously, the Government has not even challenged the fact that al-Haramain was surveilled as the call log exhibits. If the government is going to be permitted to argue the call log is secret, they should be estopped and ethically precluded from denying al-Haramain's standing when they have knowledge (scienter) that he is entitled to it.

    Thanks guys for the Help! I'm not a lawyer. I have to read and re-read and sometimes I am not sure of what I read. Glad that this site has Lawyers that help ordinary Joe's understand what our system of laws are about.

    Jeebus, I see that during the interminably long time I was struggling with how to put some of my more esoteric thoughts into words @14:28 (I still did a crappy job; sorry), I see that others did it a lot better in the interim.

    William Ockham - What you have related (excepting the opinion/question in the last paragraph) is almost precisely what I was trying to get at, at least conceptually. When I put the technical lawyer hat back on, however, I fear cboldt is right. No matter which avenue you drive down to approach the question, you arrive at the Catch-22 state secret/standing cul-de-sac. I have real ethical problems with government attorneys advocating this when they unequivocally know the validity of the plaintiff's position. To me, it is akin to me knowingly putting my client on the witness stand to give perjured/false testimony and knowingly incorporating that false testimony in my argument. I would be in contempt, sanctioned and quite likely disbarred for doing that. No questions seem to be asked of what the Administration lawyers are doing here though....

    cboldt - I have no clue about the woman judge from Seattle other than I recall she was a telco lawyer at Perkins Cole (thats enough for me; I have issues with Perkins Cole), and I used to know Mike Hawkins a bit; he is a conservative democrat type of guy that I hoped for better out of, but am not shocked. The fact that Harry Pregerson signed on to the state secrets decision kind of sets me back though. Is it possible that there is more to this stupid call log than we are giving credit for?

    EW, now I am hopping mad. Phred, you too by Big Ten general association. Damn Wolverweenies went and got waxed by OSU. And what scintillating football it was too. NOT.

    I'm approaching the point where I conclude that the establishment of a Secret Surveillance State, "Police America Act" even extended to purely domestic communications, has no judicial remedy and no legislative remedy. That is, it's a fait accompli, the courts are in on it too.

    If "innocents" object to being surveilled, they have no evidence with which to state a claim. IOW, if the government surveilled ONLY innocent people, those who have nothing to hide, then there's no way the surveillance becomes known. There'd be no criminal case where the evidence wants to come out, etc. All the snooper/controller has to do is firewall or stonewall. You're on a no fly list? Too bad. We can't tell you why. State secret, doncha' know.

    And the courts won't go out of their way to disclose methods or the full scope of the police state, when it comes to prosecuting the guilty ones. They'll look at the evidence in camera, then come out and say, "Yes, state secret. We aren't equipped to second guess."

    I've been looking for a case based on 50 USC 1810, and so far I'm coming up blank. I still have to look for suits against "an intelligence element" of the government, under the Electronic Communications Privacy Act.

    -- Is it possible that there is more to this stupid call log than we are giving credit for? --

    The way the Ninth mis-construed the order from below, al Haramain right to recreate the document from memory wasn't circumscribed or limited. The Ninth didn't want to decide which parts of the document could be separated out, without compromising state secret.

    I think the unstated concern is that in the long run, it puts the courts in the position of deciding how to carve up a "state secret" into parts that come in, and parts that don't. While not prescient, I'd be willing to bet that when the next terrorist attack happens, the administration would point at the Courts as being the blame, for being loose with state secrets.

    The only parts the Courts have been willing to "let in" (sort of) are those parts that aren't useful to an individual plaintiff in a lawsuit. E.g., even given the existence of an illegal wiretapping program of massive scope, there is no identifiable victim, therefore no case.

    Separately, it may be that the Ninth perceives al Haramain as a terrorist threat, in fact. It may have reached that conclusion privately, based on secret evidence that it finds credible.

    "Separately, it may be that the Ninth perceives al Haramain as a terrorist threat, in fact. It may have reached that conclusion privately, based on secret evidence that it finds credible."

    That is kind of what I was getting at; something we don't know about that spooked the panel. If so, I have, as does Mary, real problems with such "secret law". Eisenberg has discussed the call log pretty specifically, and I some time back asked the EFF folks if they had any suspicion to the contrary and they did not, and it is hard to envision from said description how the log deserves the status it has been accorded. Really hard to envision. That is why I mentioned Pregerson; he is old, cranky, independent, and not generally amenable to such governmental duplicity. Still, Pregerson concurred. Curious.

    bmaz, why could not both intities be right, ie the government did wiretap wrongly and if indeed Haramain was gulity of terriost activity also be convicted. Both broke the law both pays the penalty set forth for those crimes. Seems reasonable to me, fruit of the poison tree etc, etc. taken into account.

    ps: if you are seeking real justice.

    My point is this. FISA was specifically designed to get around the state secrets claim and allow the court to decide standing, even if the non-governmental party can't prove it. If you look at 1806(f) closely, you will see that the court's discretionary power to examine the legality of surveillance isn't limited to criminal cases:

    or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter

    Then in (g) the law says:

    If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person.

    The courts have the power to stop this nonsense. I'm hoping the Ninth Circuit was telling the district court to do the job.

    Darclay - As a general rule, I agree with that thought. I vacillate between viewing this as a lawyer on the technical legal provisions, and on a more general "how the hell do we do the right thing" basis. I started earlier to put in some discussion of the absence of the old time, strong willed, judges that understand the concept of substantial justice. The Learned Hands, Cardozos, Hugo Blacks, Douglases, the John Marshalls. The current crop seems to recognize the rabbit hole quality to the state secrets BS, but are curiously content to maintain it. They strain, contort and twist just about everything to give the benefit of the doubt where it is quite undeserved; and they do not have to do that. Common sense does not have to be discarded to prop up a malicious disingenuous government with a flawless record for duplicity.

    William Ockham - There is always some risk in drawing subjective conclusions about an appellate remand order like this; but I am convinced that is exactly what they were saying. It should be kept in mind though that this is still the 9th Circuit; if the 9th is this hinky over this junk, we got real problems when it hits the Supremes.....


    The problem for Squillacote and Stand was that FISA allows the court to decide that the surveillance was legal without telling the surveilled party why (i.e. the law says the district court "may" disclose).

    I keep trying to get across a fundamental point. FISA was enacted to prevent exactly the behavior that the Administration has engaged in. To date, the Administration has used the state secrets privilege to prevent anyone from proving they have standing. If FISA preempts the state secrets privilege, the courts have it in their discretion to determine whether or not a person has standing. Of course, if they won't do it in the al-Haramain case, I doubt they ever would. I guess I keep hoping that the judicial branch will at some point stand up to the incipient dictatorship that the current administration is creating (at least the courts never actually endorsed the disappearing of Jose Padilla).

    "...allows the court to decide that the surveillance was legal without telling the surveilled party why (i.e. the law says the district court "may" disclose)."

    Yeah. And now, we don't even get that. There needs to be at least some prima facie showing, and consideration by the court that the invocation by the government is legal and proper in order to summarily deny a plaintiff due process court access to protect their Constitutional and legal rights. I know I am overly simplistic with what I have been saying, but it is seriously out of whack when mere words by the executive, that appear duplicitous on their face, trumps the Constitution and it's due process protections.

    I have a creative idea about how to deal with governmental domestic eavesdropping, elect a rational set of officials who respect, or even champion, the individual rights of the citizens as described in our Constitution. This Administration has so put us in a frame of mind to be suspicious of our own government that we've forgotten that it's our elected officials that are sworn to uphold our rights.

    They're supposed to be "the good guys." When I was growing up, it was in all the movies...

    How can a group such as this Bush administration had the ideas and energy to have committed so many heinous acts of treason and other criminality?

    State secrets are apparently covering up a lot of crimes and one wonders how justice will ever be served.

    If you can't use evidence to convict them because it's a state secret, then what is to prevent them from doing anything and calling it a state secret? Dictatorship anybody?

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