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Today's Must Read
The Justice Department argued yesterday before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco that two class-action lawsuits involving warrantless surveillance needed to be thrown out of court for potentially exposing state secrets. And it practically got laughed out of court.
The two cases, Hepting v. AT&T and al-Haramain v. Bush, both center on aspects of the secret surveillance effort run by the National Security Agency after September 11, 2001. In the former case, an ex-AT&T employee claims that the company illegally provided the government with access to a panoply of subscriber information through a system of communications hubs along the west coast. The latter case involves an al-Qaeda-linked charity that claims to have evidence that it was the target of illegal surveillance.
The Justice Department claims that neither case can go forward without compromising crucial intelligence-gathering materials, and asked the judges to dismiss them. Deputy Solicitor General Gregory G. Garre and DOJ lawyer Thomas M. Bondy didn't find them particularly sympathetic.
"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back.
The 9th Circuit is known as one of the most liberal appellate courts. Hearing the cases were three judges appointed by Presidents Bill Clinton and Jimmy Carter. Should it lose, the Justice Department will surely appeal, in the not-unreasonable expectation that a higher court will be more solicitous of the government's predicament.
Still, the hearing yesterday aired the Bush administration's central contentions in the warrantless surveillance controversy: that national security compelled it, after 9/11, to launch a widespread program of international surveillance -- it claims purely domestic communications weren't involved -- that would have suffered from judicial oversight.
McKeown repeatedly referred to a public statement by President Bush that the government does no domestic wiretapping without first obtaining a warrant, and asked whether administration officials would provide that assurance under oath. Hawkins also requested the assurance, arguing that "no court in the land" would accept a public statement as binding."If there were in fact widespread surveillance of American citizens, there would be no [legal] remedy, yes or no?" McKeown asked Garre. He responded by reiterating that litigation would inevitably lead to exposing methods that must be kept secret to be effective.
If yesterday's grilling session was any indication, those secrets might actually be aired. Since the Bush administration is resisting subpoenas from the Senate Judiciary Committee over internal documentation establishing the legal basis for surveillance efforts, that would make San Francisco the only public forum for insight into one of the controversial national-security programs of the post-9/11 era.
Comments (56)
RandyR wrote on August 16, 2007 9:45 AM:I know you've heard me say I don't believe but please God, please please, please make some justice here.
I promise I will.....
Security Code: sugar Like pretty please with sugar on it
1970cs wrote on August 16, 2007 9:52 AM:The 9th court although located in San Francisco covers most of the northwest including Idaho and Montana. The fact that Republicans rail against almost every ruling from this court is interesting.
The majority view of the 9th court is Libertarian/Constitutionalist in the same vane as Ron Paul. Because Republicans disagree with their rulings their kneejerk reaction is to label them liberals.
dancer79 wrote on August 16, 2007 9:52 AM:It seems interesting that the defendant is called "Bush." I had thought suits against the government were generally labeled "... v U.S."
TheraP wrote on August 16, 2007 9:55 AM:Let us hope that sanity can prevail in one branch of government - at least!
1970cs wrote on August 16, 2007 9:59 AM:dancer79 - I think the suit 'vs Bush' is because this was done by one of his executive orders.
gcs wrote on August 16, 2007 10:00 AM:Maybe we can reestablish the United States in the western states covered by the 9th District Court. And when the rest of the country sees what it's really like to live under true democratic principles, well then freedom will blossom all across North America.
John Gillnitz wrote on August 16, 2007 10:02 AM:By the by it might be a good time to give some love to EFF. They have been fighting the good fight on these type of issues. eff.org
craig wrote on August 16, 2007 10:02 AM:because a judge mentioned 'impeachment' the doj will argue undue prejudice, or some such, and try to get the decision thrown out on those grounds. and maybe get a retrial in a friendlier district? 'course, we all know a 5-4 supremes decision is the end result, so they may not bother...
jeffgee wrote on August 16, 2007 10:08 AM:We can expect to hear renewed calls from the GOP right wing to eliminate the 9th District court.
kentuck wrote on August 16, 2007 10:08 AM:Since the Congress and Senate have proved themselves impotent to challenge anything this Administration has done, the fact that the judges are hearing this case gives just a glimmer of hope.
No doubt, it will be appealed to the Supreme Court. We need to know whether the Supreme Court is too contaminated with partisanship to rule for our Constitution and the people over the lawlessness of this Administration. They can do much to restore faith in our government, if they recognize the gravity of this decision?
The attitude of the government lawyers is indicative of the White House arrogance that has ignored our Constitution since day one. I pray that our Supreme Court will restore justice to our country.
Mellifluous wrote on August 16, 2007 10:19 AM:1970cs: your noting that the 9th includes Montana and Idaho reminds me that MT and ID are two of the eight states on board with the Bill of Rights defense movement.
1970cs wrote on August 16, 2007 10:32 AM:Mellifluous - I had to google BORDM. This is the first I've heard of it. I'm interested to see a challenge of Bush taking control of each State's national guard. That like the Patriot Act and most of his executive orders violate the Constitution.
Tommy wrote on August 16, 2007 10:34 AM:Has the Supreme Court allowed a single "state secrets" case to go forward in the last 30 years? Have they even once not sided with the government when state secrets case is argued?
I will be absolutely shocked (and happy) if the SCOTUS doesn't throw out the case.
Security Code: black
moondancer wrote on August 16, 2007 10:37 AM:I'm scratching my head here. Since when is "trust us" a defense for anything? What, in this system of surveillance, is going to change subjects behaviour if they find out about it? Any communication of any variety is available to NSA right now. So theres people out there that dont know that? If I was one these types, I would assume anything I did electronically will be seen by US intelligence and act accordingly.
Molly Ivans wrote on August 16, 2007 10:45 AM:The point being this argument is lame, the only people they fear learning about this system are the people of the United States. The only reason they fear them is that they are knowingly breaking the law
Raise Hell!!
lysias wrote on August 16, 2007 11:10 AM:I heard with my own ears Deputy Solicitor General (now Solicitor General) Paul Clement assure the justices of the Supreme Court in the Padilla oral argument that the executive branch would never practice torture. That oral argument occurred earlier in the day on the evening of which CBS broadcast the Abu Ghraib photos. CBS had held off broadcasting them for a couple of weeks, at the request of the government.
I think that constituted a "Trust us" argument. I wonder how the justices felt when they found out the truth.
lysias wrote on August 16, 2007 11:15 AM:Yes, it is odd that Bush is a named party in the Al Haramain case. It can't be just because an executive order of Bush's is involved.
The Steel Seizure case was about an executive order of Truman's, seizing the steel mills. However, the official name of the case was Youngstown Sheet & Tube v. Sawyer, Sawyer being the Secretary of Commerce whose department was supposed to administer the steel mills under the executive order.
Anonymous wrote on August 16, 2007 11:22 AM:I'd be interested to hear Garre's response to
benjoya wrote on August 16, 2007 11:24 AM:"What is that? Impeachment?"
molly, rest in peace dear girl, but i tought it was spelled "ivins"
thepeoplechoose wrote on August 16, 2007 11:26 AM:I would guess that at some point the administration is going to have to demonstrate to someone or some body (Congress?, the SC?) that the executive branch has clearly not broken the law. I've no idea how that might ultimately happen but if it doesn't happen I don't think the United States House of Representatives has little choice except to initiate articles of impeachment against both Bush and Cheney. The people of this nation via their duly elected representatives have an undisputed constitutional right to ascertain that the conduct of government has been, is now and remains above board. State secrets cannot be used to circumvent this because doing so effectively nullifies constitutional protections. Our system was devised in such a way to prevent the government from hiding behind a cloak of secrecy that could be used in a way inconsistent with our laws and democratic principles. The idea behind this is way simple and the fact that Bush and Cheney are trying their best to alter it is all Congress or we the people need to know in order to see that Bush and Cheney are shown the door.
Karen wrote on August 16, 2007 11:26 AM:I'm not up on all the facts of the case, but do you mean "allegedly" al-Qaeda-linked charity?
Philip the Equal Opportunity Cynic wrote on August 16, 2007 11:31 AM:Maybe we can reestablish the United States in the western states covered by the 9th District Court.
Ironically this strategy would end up meeting most of the goals of the libertarian Free State Project, but on the opposite coast.
Somehow I don't see the intense government micromanagement of life in California getting dismantled, though, but that's just me....
moondancer wrote on August 16, 2007 11:32 AM:Yes, lysias, that was the other place they used the "trust us". The precious part to that was shrubs explanation: if they know what torture we use, they can prepare for it.
ahem wrote on August 16, 2007 11:32 AM:How does one prepare for torture?
"He responded by reiterating that litigation would inevitably lead to exposing methods that must be kept secret to be effective."
i.e. we can shit on the Fourth Amendment and there's nothing you can do about it. Though ideally we'll get a bunch of dumb and/or shit scared Democrats to 'legalise' it, ideally in a way that makes any constitutional challege an admission of terrorism.
Karen wrote on August 16, 2007 11:33 AM:And by the way, it's too bad Pregerson didn't get Carre to say "impeachment" in response to other venues/forums. Would have been safer and funnier that way.
benjoya wrote on August 16, 2007 11:37 AM:SCOTUS threw out a previous case because the palaintiffs didn't know they had been spied on, so they didn't have standing. in this case, the "misdirected" documents prove standing, so if SCOTUS wants to continue to play the criminal enabler, they'll have to come up with a new angle.
and yes, impeachment would be a minimally acceptable alternative to prison for these thugs.
benjoya wrote on August 16, 2007 11:40 AM:i mean, violating FISA carries a five-year prison sentence. for violating it once!
spamonwry wrote on August 16, 2007 11:43 AM:The claim that only "international" calls are monitored is a complete red herring. With the outsourcing of product support help desks to India, Malaysia, and even to Canada, a huge number of calls one makes can unknowingly be "international" calls.
Secondly, since the Bush White House, with KKKKarl Rovesputin politicizing EVERYTHING he could get his hands on, does ANY thinking, reasonable person think that the security folks have NOT been listening in on every Democratic politico in the nation? Come on.... I'd bet my next paycheck that all of the Demo Presidential candidates are so completely eavesdropped on that none of them can even fart without a flag going up in the White House. Bush, Cheney, Rove and their dementors listen in on every word an opponent, or even a potential opponent, says on a phone. Captain Codpiece's enemies list makes Nixon's look trifling by comparison.
Remember, these people have no regard for others' rights or privacy; their complete disregard for law, the Constitution, ethics, etc., is nothing short of astounding! Why would we EVER think that they're sticking to the limits the FISA law imposes.
It make take several years, but at some point the truth will out, and even the most dedicated Busheviks will recognize the destruction wrought by these criminals. But not to worry: Bush's Pardon Pen will be busy starting the day after the 2008 election. Unlikely that anyone will ever see the inside of a prison or jail.
Xenos wrote on August 16, 2007 11:52 AM:" if SCOTUS wants to continue to play the criminal enabler, they'll have to come up with a new angle."
Well, if the identity of a target of secret wiretapping is a state secret, then the court allowing a suit to be filed will be violating the security laws. So the plaintiff can't have standing after all, due to the obvious and pressing national security situation. There is a war against terrorism going on, after all.
It may sound ridiculous, but we are dealing with some genius, and shameless, sophists here. World class sophistry.
moondancer wrote on August 16, 2007 12:00 PM:Bush seems to pushing for judicial showdown. I personally wouldnt trust the SCOTUS, so if its going to come down to trial, then impeachment is much better venue. I hope the congress is up to it(dont think so).
Michael Lafferty wrote on August 16, 2007 12:01 PM:Keep in mind that 'tossing' the case is actually what we want to see here from the US Supreme Court, should the government appeal to the next level or request an emergency hearing. If the Court refuses to hear a case, the lower court rulings stand as issued.
What we do NOT want to see is the US Supreme Court reverse the likely favorable decision of the 9th Circuit panel, or the initial ruling of the lower court which is now being appealed.
Jeremy wrote on August 16, 2007 12:07 PM:This is all a red herring.
Do people really think there aren't mechanisms in our government to review state secrets for legality without airing those secrets to the general public?
C'mon...
lysias wrote on August 16, 2007 12:08 PM:Any massive abuse of the pardon power by Bush could always be corrected by a constitutional amendment.
parrot wrote on August 16, 2007 12:13 PM:If the Congress would step forward and bring articles I'm sure all the other branches would give a sigh of relief...and also the People...for which impeachment is an option, and for which the Congress should feel obligated to do.
Punchy wrote on August 16, 2007 12:17 PM:If you guys think that Bush will stop warrentless wiretapping, or admit to breaking the law, or even admit wrongdoing just b/c the 9th finds them so, well...I've got real estate in northern Baghdad to sell ya...
jrc wrote on August 16, 2007 12:43 PM:I've noticed that fox news refers to the 9th circuit court as the "infamous 9th circuit court".
wonder if when a repub's no longer prez, they'll start saying the "infamous white house" or something like that.
listening wrote on August 16, 2007 12:50 PM:I HAD A DREAM!!!!!!!!!
JohnL wrote on August 16, 2007 12:50 PM:When the 9th court handed down its decision, POTUS called all congressional biggies back to Washington and said "Please, I need your help in fashioning legislation that will help us get the info we need in a lawful way. Will you help me?
THEN I WOKE UP!!!!!!!!!
If you go to the LA Times article about one of the lawyers in the case, you can see how bizarre this is:
714Day wrote on August 16, 2007 12:54 PM:http://www.latimes.com/news/local/la-me-secret15aug15,0,3599833.story?coll=la-home-center
"Secondly, since the Bush White House, with KKKKarl Rovesputin politicizing EVERYTHING he could get his hands on, does ANY thinking, reasonable person think that the security folks have NOT been listening in on every Democratic politico in the nation? Come on.... I'd bet my next paycheck that all of the Demo Presidential candidates are so completely eavesdropped on that none of them can even fart without a flag going up in the White House. Bush, Cheney, Rove and their dementors listen in on every word an opponent, or even a potential opponent, says on a phone. Captain Codpiece's enemies list makes Nixon's look trifling by comparison."
Oddly enough, spamonwry, the largest chunk of the nation would still believe that you are prattling on about behaviors too fantastic to be perpetrated.
ruddyoak wrote on August 16, 2007 1:16 PM:I am flummoxed by the number of people who will not accept the fact that genuine weasels have chomped their paths of cheat and control through the federal government from top to bottom. This bunch has been blatantly "my way or the highway" from the get go.
Doesn't everybody know a group that acts/has acted like this? The vested clique at school who can lean on others even more efficiently when they run in a pack?
To restore any of these tatters to it's former (already imperfect) fabric, what in the world will it take?
How do you find enough plugs for the swiss cheese?
This is an imortant case because the 4th Circuit has already weighed in with its typical intellectual dishonesty on the state secrets doctrine in a case called El Masri.
Libby Buck wrote on August 16, 2007 1:29 PM:I AM SO SICK OF GWBUSH!!! GET HIM THE HELL OUT OF THIS COUNTRY
ruddyoak wrote on August 16, 2007 1:31 PM:It's very important that the 9th weigh-in here as the 4th Circuit has already pronounced on the state secret's doctrine with its typical intellectual dishonesty in a case called El Masri. Generally, the state secrets doctrine is used to dismiss court cases in order to protect important government intelligence ops, which are ancillary to the cause of action, from being disclosed in a garden variety tort case brought against the government. In El Masri, the court declared that the state secrets doctrine required dismissal of a law suit specifically concerning potential government wrongdoing and constitutional violations (rendition). The state secrets doctrine is not generally used to insulate the government from this type of 3rd branch oversight. The slippery slope here is that no government wrongdoing can be redressed in a court of law if there is some possibility that we need to look behind the curtain.
714Day wrote on August 16, 2007 1:46 PM:"The state secrets doctrine is not generally used to insulate the government from this type of 3rd branch oversight. The slippery slope here is that no government wrongdoing can be redressed in a court of law if there is some possibility that we need to look behind the curtain."
Jeebus McRapture wrote on August 16, 2007 2:04 PM:Posted by: ruddyoak
If I'm following the train of "thought" here, the AG's argument suggests we'd tip our brilliant snooping techniques which couldn't otherwise crop up in the most paranoid of terrorist minds. They couldn't even dream of it... Something like that.
Give me a break.
SCOTUS would give it to Gonzo. Seems reasonable to the majority, in all probability.
"wonder if when a repub's no longer prez, they'll start saying the "infamous white house" or something like that."
"infamous White House" "infamous Congress" "infamous federal government" "infamous Constitution" "infamous United States of America."
moondancer wrote on August 16, 2007 2:25 PM:"infamous" is that a adjective used in elite journalism circles?
Brighid wrote on August 16, 2007 3:32 PM:Hamdan v. Rumsfeld, Dancer79.
This is just unbelievable. This whole thing is Alice in Wonderland, and the United States has popped it's national head up out of a hole in an alternative universe. Sen. Barbara Boxer is asking for help over at HuffPo, to stop the GOP Juggernaut from stealing electoral votes in California. Well, I think we should ask Sen. Boxer WHY we should help HER, when she is not willing to do what is necessary. Impeach Bush, Cheney and Gonzales immediately. This president, vice president and attorney general are committing treason. They have violated the Constitution since they took office. They have violated our treaties (Geneva, Charter). They have lied and taken our country into an illegal war (UNSCR 1441). They are destroying this country. The stealth strategy to steal 2008 for the Republicans in California is just a SYMPTOM of the disease they represent. Let us stop wasting time treating symptoms that come from every angle every day; Let us cure ourselves of the disease once and for all. IMPEACH THIS ADMINISTRATION.
STI wrote on August 16, 2007 4:57 PM:FYI--there are ways to deal with the issues here, but clearly--because the government inadvertently revealed they were targets of surveillance--the plaintiffs have proved they have suffered actual "harm," and thus cannot be denied standing.
Security code = sheep, like the Rethuglicans who blindly follow Bush
Doug wrote on August 16, 2007 6:15 PM:If the government truly believes that the exposure of its intelligence gathering methods would render them ineffective they have an easy method to shut down the case: provide temporary security clearances to the principals involved (judges and attorneys for both sides) and show them how publicizing the methods would affect intelligence gathering.
kentuck wrote on August 16, 2007 9:47 PM:That the government hasn't tried this suggests that a) it hasn't thought of it, b) it isn't really worried about intelligence and just wants to show who's the boss, or c) there is something illegal about the activity.
Bush has probably already scheduled a chit-chat with his 5 buddies on the Supreme Court. Just to make sure he knows how they are going to vote if it comes to them? He is a scoundrel if there ever was one. But that is why most of his supporters still love him. They don't really care if he breaks the law so long as he is a headache to the liberals...
kentuck wrote on August 16, 2007 9:47 PM:Bush has probably already scheduled a chit-chat with his 5 buddies on the Supreme Court. Just to make sure he knows how they are going to vote if it comes to them? He is a scoundrel if there ever was one. But that is why most of his supporters still love him. They don't really care if he breaks the law so long as he is a headache to the liberals...
really pissed at this point. Dammit! wrote on August 16, 2007 10:45 PM:Not to be too technical, but didn't congress just make these cases moot? Isn't that what they just did - make all the illegal warrantless wiretapping legal retroactively? I really hope not.
Josh, thank you for making sure we learn of this stuff. You are a great asset in our progressive world. You are loved by those whom you do not know (including me!).
Security code: Stiff - as in, keep a stiff upper lip when discussing the loss of our freedoms and the loss of our bill of rights in the last 6+ years so the tears don't blind you. Or, to be much more bitchy, Stiff, as in most GOPers can't get that way without either an underage boy or an of-age "professional" woman.
Mark Baker wrote on August 17, 2007 11:10 AM:really pissed at this point. Dammit!,
The U.S. Constitution says that Congress cannot make ex post facto laws. That means that even though Congress has passed legislation that attempts to make Bush's wiretapping legal, they cannot do it retroactively and Bush can still be prosecuted for having broken the law prior to the change. I say "attempts" to make it legal because the legislation violates the Fourth Amendment. It is unconstitutional and therefore not a real law.
. . .
If the government is allowed to have programs which are completely opaque and answerable to no one, then the government can break the law with impunity, and "rule of law" ceases to exist.
"Government by the people" is impossible if the people aren't even allowed to know what the government is doing.
Bush hates democracy.
Daniel wrote on August 18, 2007 1:55 AM:How many "illegal" wire-taps do you all suppose were conducted "in the name of freedom" by the Roosevelt administration during the course of WWII?
And why aren't any of you expressing anger at AT&T? They seemed to have surrendered their customers' privacy without so much as a hiccup, but all anyone here can see is a president robbing you of your rights.
It seems to me most here are so blinded by your hatred of literally "all things Bush" you've seriously lost your historical perspective, which is certainly no surprise.
The most ironic thing about all of this is Bush may actually prevent your favorite 9th Circuit Court of Schlameals and the city in which it sits from being incinerated, poisoned or otherwise damaged by the "Islamic charity" bringing suit, but of course such a stretch is too much to imagine, especially because it is somehow easier to imagine the entire administration is staffed with little more than felons.
Loons, one and all.
Daniel wrote on August 18, 2007 2:10 AM:And besides, the Ninth Circus has done more to rob individuals of their "freedoms" than anything the Bush administration has ever done or is accused of doing, but does anyone here mention that? No, of course they don't.
For that matter, where is even one dissenting comment? Doesn't this site allow both or all sides of the discussion? If the answer is also "no" (as is the case over at the hyper-hypocritical "Huff-Post"), then you have a problem far worse than one administration.
Kelvin Phillips wrote on August 19, 2007 9:44 AM:Look, the problem is that we don't know that the Bush administration isn't abusing the wiretapping. You might want to trust this bunch, but haven't they proven that trusting them is dangerous? Besides, simply pulling out the "WW II" canard proves nothing. During that time, Congress voted to declare war to an obvious provocation. All during that time, they did not give up their right to oversight. So enough about that. If there is one thing I have learned over the years, EVERYONE desires privacy, no matter what.
Daniel wrote on August 20, 2007 6:36 AM:Kelvin,
Yes, everyone wants and deserves to possess their privacy, but if any of you bother to examine the 9th Circus, the way it thinks and the rulings they hand down, you'll see T-H-E-Y are the ones who have spent years stripping Americans of their individual freedoms and rights.
It is absolutely laughable to be sniveling about the Bush administration's wire-taps when compared to the destruction wrought upon our Bill of Rights by those "we-do-your-thinking-for-you-because-you-citizens-can't-be-trusted" liberal maniacs pretending to be Americans at the 9th Court of Disasters. Laughable. And damned myopic.
They are the only federal court of appeals which consistently has their rulings overturned when complainants have the resources to get to the Supreme Court. No other court of appeals has a quarter of the overturned rulings the 9th does. There is something dreadfully wrong with that court.
You say that trusting Bush has been dangerous? To whom? As far as I can tell, Bush is dangerous to those who kill Americans. Don't forget it was the Janet Reno Dept. of "Justice" who actually went around murdering Americans in their own homes, wholesale, too. Weren't their victims free to live their lives without federal interference, let alone live at all? Apparently not.
As for WWII, you say Congress declared war on an "obvious provocation." Wasn't 9/11 obvious enough for you?
Sure, Saddam wasn't in on it, but he had been waging a convincing info-war strongly suggesting his possession of WMD's - and largely for Iran's sake, it turns out - while being one ultra-evil bastard anyway. There may not have actually been WMD's in Iraq, but how the heck are we supposed to know that? Now, his country has been turned into an outstanding place to meet head-on those who would kill Americans, and take them out by the truckload, regardless of from where they came to do it. As far as I am concerned, that's great.
The 9/11 attacks were not carried out by a formal nation-state, so there wasn't anyone to declare war on. You remember how we all felt after 9/11? If there h-a-d been a particular country with that attack's blood on its, Congress would have declared war in a heartbeat.
It took a brave president to see the bigger picture: Afghanistan on one side, Iraq on the other, and Iran, the epicenter of the idealogy of hate, right in the center. Pretty good job, I'd say, though made an infinitely greater challenge by the cowardly, cut-and-run, "War-is-lost," "Global-War-on-Terror-is-a-bumper-sticker" Democrats and the wackos who gravitate to that morally bankrupt party.
So while I am pissed that AT&T is so willing to screw its own customers, I don't have a problem with our president doing what's been done for centuries; spy on whomever with "secret federal oversight" while somehow managing to not send hundreds of federal agents to murder freedom-practicing Americans in the process.
You let the 9th have their way, and privacy will be the least of your concerns.