Ninth Circuit Judge Vaughn Walker understands his job.

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Some years ago someone in the Bush administration accidentally revealed to an organization that it had been spied upon. What resulted was a plaintiff's court suit of the government for illegal warrantless wiretapping. It became known as the al-Haramain case. It is now active in the federal 9th Circuit court of Judge Vaughn Walker in San Francisco, and it is not yet settled. Today's post surveys the pertinent posting activities of some of the writers in the blogosphere who have followed the case all this time.

Anthony Coppolino, Dept. of Justice, has handled defending the government's state secrets privilege claim in the case for the Obama administration, a continuation of the position of the previous administration. "The government dodges and weaves on al-Haramain," is by emptywheel (6/1/09). To quote the post's beginning and the ending:

I'm utterly fascinated by the dodging and weaving they do to try to persuade Vaughn Walker not to impose sanctions on them. I'm fairly sure that Anthony Coppolino (the government lawyer in this) ended up canceling his Memorial Day plans last weekend and has been working on this dance ever since.

. . . This is a far more sophisticated argument than they've been using (Walker's discussion of sanctions seems to have cleared Coppolino's head a bit). But it's still a beg to get state secrets back long after Walker said they couldn't use state secrets to hide their own crime.

Waiting until the last minute in this power struggle -- "Obama Says Government Sanctions Unwarranted in Spy Case," from Wired Threat Level (5/30/09). To quote:

The Obama administration refused to budge late Friday and agree to reveal state secrets in a lawsuit weighing whether a sitting president may lawfully bypass Congress and spy on Americans without warrants, as President George W. Bush did following the 2001 terror attacks.

In court briefs filed at nearly midnight east coast time, the Justice Department was responding to a federal judge’s week-old inquiry on whether the administration should be sanctioned for “failing to obey the court’s orders” in a key National Security Administration lawsuit. The government, as it has repeatedly, urged U.S. District Judge Vaughn Walker to allow the government to appeal his January 5 order requiring the government to develop a plan – a so-called “protective order” – that would pave the way to the release of state secrets to plaintiffs’ attorneys.

. . . The Obama administration declined to comply with Walker’s order. The government is refusing to cooperate with the court’s orders because, as it asserted two weeks ago and again on Friday, that plaintiffs’ attorneys do not “need to know” the information that Walker has “determined they do need to know.”

Judge Walker, who clearly understands his role, does not seem to be intimidated. -- "Decision Day on al-Haramain (updated)," is by "bmaz" at emptywheel (5/29/09). To quote:

The obstreperous and defiant defendant, the United States government by and through President Barack Obama was, however, not treated so kindly by the court. Judge Walker, clearly fed up with their belligerence and recalcitrance, drew the blade of a guillotine over the government's head (and rightly so I might add).

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders . .

UPDATE: I promised an update when the government pleading hit the docket, and it has been filed. Above I opined the government would likely show up with the same repetitive arguments already declined by the court, and they did not disappoint.

The Obama administration appears to want to be in a position to appeal the decision quickly. -- "Obama dares Judge to order release of NSA spy document," from Wired-Threat Level (5/15/09) To quote:

Setting the stage for a constitutional showdown, the Obama administration dared a federal judge here late Friday to do what no judge has yet done: disclose classified data the government has declared a national security state secret.

The administration urged (.pdf) U.S. District Judge Vaughn Walker to order such a disclosure in a 3-year-old lawsuit weighing whether a sitting U.S. president may bypass Congress and adopt a program of eavesdropping on Americans without warrants. Such an order, the administration said, could halt three years of convoluted litigation and force the appellate courts to weigh in on the hotly contested issue.

The classified data in question shows that telephone calls by two American lawyers for a now-defunct Saudi charity were intercepted by the government without warrants in 2004. Without the classified documents admitted as evidence in the case, the aggrieved lawyers for
the al-Haramain charity, which the Bush administration designated as a terror group, cannot establish a legal basis to earn them a day in court.

It is disappointing, of course, that our current president's claim of secrecy rings hollow when it comes to his concurrent claim of more transparency in his administration that in his predecessor's. What is clear to many of us is that the Bush administration ran an illegal warrantless wiretapping program for years before it was revealed by the New York Times. Congress eventually attempted to clean up the mess, but the resulting amendments to the old protective FISA law were long on permissions to spy on us and short on accountability for doing so illegally in the past. And civil liberty privacy protections have all but been ignored to this day. It is fortunate that there are judges still congnizant of the constitution and the separation of powers.

Related background links:

1. "Obama's civil liberties speech" -- by Glenn Greenwald at Salon.com (5/21/09). Includes link to speech.


2. "FBI Use of Patriot Act Authority Increased Dramatically in 2008" -- from Wired Threat Level (5/19/09). The use of national security letters is rebounding.


3. "Two new judges for the FISA court" -- is by Steven Aftergood at Secrecy News (5/18/09)


4. "The NYT sums up Obama's civil liberties record in one paragraph" -- by Glenn Greenwald at Salon.com (5/16/09) It is not a great big "thumbs up."


5. "Interim IG report on surveillance program released" -- by Steven Aftergood at Secrecy News (3/31/09). To quote: "does not present any new findings, but rather lays out the scope of the ongoing review and the division of labor among five agency Inspectors General." The final report is due in July.


6. "Again on the al-Haramain stuff" -- is by emptywheel (3/25/09).


7. "Top Internet Threats: Censorship to Warrantless Surveillance" -- comes from David Kravets at Wired- Threal Level (3/20/09). Summary of list: Warrantless Government Wiretapping; Private Censorship; Government Censorship; ISP Tiered Pricing, Recording Industry of America proposes "Three-Strikes Policy;" and Digital Millennium Copyright Act Abuses.


8. "Correcting the confused al-Haramain reporting" -- is by emptywheel (3/3/09).


9. "Some clues to what 'inaccurate' information Bush provided in al-Haramain" -- is by emptywheel (3/1/09).

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