Oregon judge allows domestic spying lawsuit to proceed

Oregon US District Judge Garr King has ruled that a lawsuit by an Oregon-based Islamic charity, the Al-Haramain Islamic Foundation, against the federal government for its domestic spying program may proceed. In the opinion and order linked below, Judge King denied the government's motion to dismiss the case or for summary judgement (though he did rule that the government could withhold certain evidence the plaintiffs and the Portland Oregonian had been seeking).

http://newsroom.blogs.oregonlive.com/...

One noteworthy thing about this case is that -- although much of the caselaw in the opinion is severely deferential to the Executive -- it confirms of Judge Anna Diggs Taylor's ruling in Michigan that the government has hoisted itself on its own petard by disclosing what information it has about the domestic spying program. Judge King's ruling turns on the government's attempt to invoke the state secrets privilege. He stresses that the broad outlines of the program are not secret, which is one half of the reasoning undermining the government's claim. The take-home point here, of course, is that the government only disclosed what it did in response to its critics. We should all pat ourselves on the back for forcing these defensive disclosures, which might be fatal to the program in the end.

Judge King then actually rules for the government on several points here (denying a request to produce documents showing whether this particular charity was a target of the program), but what saves the plaintiffs' case is a classified document that had been inadvertently disclosed to them in the past. Although they are not permitted to retain the document itself, they may use their memories of its contents to file affidavits attesting to facts that would support a claim they had been spied on themselves. Thus, the lawsuit may proceed.

•  Thanks

  Nice post, great info.  Hate to see this scroll past so fast.

  Cheers

  by cycloptichorn on Thu Sep 07, 2006 at 02:23:19 PM PDT

  •  Maybe it'll be rescued...

    The case underlines how arrogant the Bushies have become, in control of the executive branch.  They see Congress only as a rubber stamp, and they pretend to have the authority to decide which laws apply to them and which don't.

    Although Judge King didn't answer the question whether FISA preempts the state secret evidentiary privilege, he spoke against the arrogance with the following sentence:

    To accept the government's argument that Section 1806(f) [of FISA] is only applicable when the government intends to use information against a party would nullify FISA's private remedy and would be contrary to the plain language of Section 1806(f).

    I hope that Judge King further discomforts the Bush partisan attorneys when he orders the government to answer some of the interrogatories they are trying to dodge.

    by JTML on Thu Sep 07, 2006 at 04:19:27 PM PDT

•  call this your tip jar

  Nice info.  Let's follow this and see what happens in the case.

  by tom 47 on Thu Sep 07, 2006 at 02:24:44 PM PDT

  •  Thanks

    I appreciate it. A lawschool classmate of mine, Ashlee Albies (a year behind me at Lewis and Clark), deserves a good share of the credit for this win.

    by Oregon Bear on Thu Sep 07, 2006 at 02:28:46 PM PDT

•  Is the link working?

  I'd like to read the opinion and order, but nothing seems to load when I follow your link.

  by JTML on Thu Sep 07, 2006 at 02:34:10 PM PDT

  •  Works for me...

    I'll email it to you, Dad.

    by Oregon Bear on Thu Sep 07, 2006 at 02:34:44 PM PDT

    •  Thanks n/t

      by JTML on Thu Sep 07, 2006 at 02:38:01 PM PDT

    •  Works for me, and Thanks Oregon Bear

      Another smack-down for the Bush Junta.

      It's been a great day. The Mass Media seems to be catching on to GWBs fear-mongering, understanding how angry many of us are, "Path to 9/11" is under massive pressure, Bolton's UN appointment on hold ... is the Chimp/Rove house falling apart???

      by EclecticFloridian on Thu Sep 07, 2006 at 02:38:57 PM PDT

      •  Bush is a FEARLEADER

        I just found my one-word slogan for this fall:  I'm going to refer constantly to Bush as a FEARLEADER.  That way, every time the word "cheerleader" is mentioned this fall, people to whom I speak will be reminded of my judgment of Bush.

        The reason I mention that here is that Sen. Kerry pulled no punches this afternoon when he told Tweety that Bush's rolling schedule of recent speeches is "nothing but a p.r. campaign".  It was nice seeing and hearing that on my cable TV.

        by JTML on Thu Sep 07, 2006 at 02:52:36 PM PDT

  •  Maybe someone should call Judge King's clerk

    Like other district courts, the Oregon U.S. District Court site has a section for "selected recent rulings", where you'd exspect something like Judge King's opinion and order to be posted.

    In case that happens soon, here's a link to that section:
    Selected recent rulings .

    by JTML on Thu Sep 07, 2006 at 02:44:54 PM PDT

    •  Never mind...it worked for me, too n/t

      by JTML on Thu Sep 07, 2006 at 04:07:59 PM PDT

•  important stuff, Oregon Bear

  Thanks for the update.

  With the executive, the legislature, and now even The Fifth Estate under the cloak of tyranny, it is vital that we support those winter soldiers slogging through the marshes of the judiciary.

  Keep plugging.

  by blueness on Thu Sep 07, 2006 at 02:40:14 PM PDT

  •  make that the Fourth Estate

    Got it confused there briefly in my mind, and I wonder why, with "Fifth Column."

    by blueness on Thu Sep 07, 2006 at 02:43:40 PM PDT

•  Al-Haramain

  Nice catch and good analysis.  I just read the decision and I think you are right on about the content and outcome.  The next step in the case is a discovery conference.  Since the accidentally disclosed document remains classified, the hearing will seek to force the government to redact sections and then deliver it as evidence.  I believe that would be a very interesting disclosure.

  Therefore, I grant the government’s Motion to Deny Plaintiffs’ Access to the Sealed Document in that plaintiffs may not have physical control over the entire document. Plaintiffs may, however, submit affidavits in camera to support their standing and to make a prima facie case. After exploring possible redactions, I may require that plaintiffs be provided with information that is now no longer "secret," subject to a protective order.

  by smokeymonkey on Thu Sep 07, 2006 at 03:51:24 PM PDT

  •  Thanks

    I really appreciate it.

    by Oregon Bear on Thu Sep 07, 2006 at 03:56:41 PM PDT

    •  Welcome

      You don't blog very often, eh?

      I'm hoping to move to Oregon in the next year or two.  Probably Portland, but I'm open to suggestions.

      by smokeymonkey on Thu Sep 07, 2006 at 05:17:48 PM PDT

      •  Not too often

        I've been involved in online community since 1988 (BBSes to start...) and a DKos member since 2003, but I'm not a big blogger. Work and family and volunteer activities leave me precious little time and energy for it. But I'm getting more into it.

        I'd love to talk Oregon sometime. Email me - see my profile.

        Cheers.

        by Oregon Bear on Thu Sep 07, 2006 at 06:14:46 PM PDT

•  With Specter's bill tied up in committee,

  I guess all these suits nationwide won't end up getting consolidated in one court.

  That means there are plenty of opportunities for the government to lose in some of the courts.  And it also means that a circuit split -- and Supreme Court review -- is more likely eventually.

  by lysias on Thu Sep 07, 2006 at 03:52:52 PM PDT