Throughout the excruciatingly-long seven-years of the Bush regime's international crime spree, court victories in defense of the rule of law, the U.S. Constitution, and in favor of everyday American people, have been few and far between. Sadly, of those precious few victories, even fewer still stand as such today.
Well, this is one of those precious few victories and, unfortunately, it is only in part -- a procedural advantage in a civil case afforded the side of the American people -- and hopefully, a significant step towards reigning in this scofflaw regime presently residing in the White House. Now, to what end this step will eventually lead, and then how long it will stand after that, is unknowable.
But, for the moment at least... let's savor it, shall we?
Late Tuesday, the Electronic Frontier Foundation (EFF) won the timely release of telecom lobbying records from the Office of the Director of National Intelligence (ODNI).
U.S. District Judge Susan Illston ordered the ODNI to meet a December 10, 2007 deadline set to comply with the upcoming congressional debate over granting amnesty for telecommunications companies who participated in the illegal electronic surveillance programs ordered by the Bush regime.
Judge Illston’s timely ruling does two things.
• It vacates a hearing on the case scheduled for this coming Friday.
• It clears the way for full disclosure to Congress in time for a full debate before a vote.
EFF originally used a Freedom of Information Act request for the release of the documents containing germane information concerning any telecom lobbying activity. Until now, the ODNI hadn’t complied with EFF’s request, and during that time, proposed changes to the Foreign Intelligence Surveillance Act became the hot item in Congress, especially over proposals that would allow AT&T, Verizon and other telecom companies to escape culpability for their compliance in the NSA warrantless surveillance program (TSP)..
"We are pleased Judge Illston recognized that time was running out for these documents to make a difference in the legislative debate. She agreed that the Administration is dragging its feet in making relevant information available and stressed that the public has a right to full disclosure before Congress acts on the pending telecom amnesty proposals," said EFF Senior Counsel David Sobel. "The court's order confirms our belief that aggressive use of the Freedom of Information Act is needed to challenge government secrecy."
The class-action lawsuit [Hepting vs. AT&T] brought by AT&T customers, represented by EFF, accuses the telecommunications company of violating their privacy rights by illegally working with the National Security Agency in carrying out domestic surveillance. It’s just one of many cases to come aimed at holding AT&T and others accountable for knowingly violating federal privacy laws against warrantless wiretapping, and the illicit transfer of vast amounts of personal data to the government.
The story appears on the Electronic Frontier Foundation’s website:
"The full Senate could start debate on amnesty for telecoms as soon as the first week in December," said EFF Staff Attorney Marcia Hofmann. "We look forward to making the records public and discovering what light they can shed on this very important issue."
The text below comes from Judge Illston’s ruling (PDF):
Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ELECTRONIC FRONTIER FOUNDATION,
Plaintiff,
v.
OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE,
Defendant.
No. C 07-5278 SI
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR A PRELIMINARY
INJUNCTION
Before the Court is plaintiff’s motion for a preliminary injunction. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument, and VACATES the November 30, 2007 hearing. Having considered the papers submitted, and for the reasons set forth below, the Court GRANTS in part and DENIES in part plaintiff’s motion.
Appreciation should be bestowed upon Judge Illston in spirit, if not literally, for her presicient acknowledgement of the potential importance of this evidence, and its likely relevance to the deliberative process in the U.S. Senate.
I think it's safe to say that some members of the esteemed dubious U.S. Senate are looking forward to examining the evidence provided by the ODNI. Others... perhaps, not so much. In any case, they need to give this subject the time it deserves. The Senate Democrats are truly at a crossroads here and they need to start proving their mettle in standing up to the gang of thugs in the White House. They must draw the proverbial line in the sand; a line of demarcation that they will not cross under any circumstances.
III. Plaintiff’s expedited FOIA requests, and defendant’s response to date
On August 31, 2007, plaintiff faxed two letters to defendant that requested, under FOIA, all records from April 2007 to August 31, 2007 concerning briefings, discussions, or other exchanges that Director McConnell or ODNI officials have had concerning amendments to FISA with (a) representatives of telecommunications companies, and (b) offices of members of the Senate or House of Representatives, including any discussion immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities. Hoffman Decl. Exs. K & L. In those letters, plaintiff also asked that the requests be expedited because they seek the disclosure of information about which there is "[a]n urgency to inform the public about an actual or alleged Federal Government activity," and were "made by a person primarily engaged in disseminating information," as provided in 5 U.S.C. § 552(a)(6)(E)(v)(II) and 32 C.F.R. § 1700.12(c)(2). Id. On September 10, 2007, defendant faxed two letters to plaintiff acknowledging the FOIA Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007
Page 3 of 12
United States District Court
For the Northern District of California requests, and stating that they would receive expedited treatment. However, defendants have not
provided any responsive materials to plaintiff to date. To aid the Court in understanding the reason for the delay, defendant submitted the declaration of John F. Hackett, Director of the Information Management Office ("IMO") for the ODNI. He explained that plaintiff’s requests were granted expedited status, and were moved to the front of defendant’s FOIA request queue ahead of forty-two other pending requests. Hackett Decl. ¶ 5. To respond to the requests, defendant determined it would search for records in a number of offices within ODNI, and that individuals likely to have responsive materials would search their electronic and paper
files. Id. ¶. 6. "As of [November 9, 2007], most of the searches for responsive material have been completed" and they are now being processed. Id. ¶ 8. Mr. Hackett describes the processing in this case
as follows:
As the records are located and forwarded to the IMO, the FOIA analyst handling this case conducts a continual analysis and review of the documents located. During the review process the analyst handling this case first removes any non-responsive and
duplicative material from the records that are received. She then creates working copies of the documents and document indexes and assesses whether there would be any necessary consultations and/or referrals with those entities maintaining equity in the documents. She also reviews the records for the application of any FOIA exemptions. Id. Defendant asserts it has identified approximately 250 pages of unclassified material and about sixtyfive pageS of classified material so far. Id. at ¶ 9.
Defendant asserts it is focusing primarily on processing unclassified materials as soon as practicable. Id. at ¶ 12. It anticipates providing plaintiffs an interim response by November 30, 2007, and a final response by December 31, 2007.
Now before the Court is plaintiff’s motion for a preliminary injunction seeking an order requiring defendant to produce or identify all responsive records within ten days of the issuance of the order, and an index pursuant to Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), ten days thereafter.
LEGAL STANDARD
Requests for injunctive relief may be satisfied by either of two sets of criteria. The "traditional" test requires the movant to: (1) establish a strong likelihood of success on the merits; (2) show the Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007
The U.S. Senate will have no excuse now to not know what's really at stake here; the difference between living in a country harboring a lawless regime that grants blanket amnesty to those corporate cronies, conspiring with them to break the rule of law, and betray the trust of their customers -- AND -- a country that first honors the U.S. Constitution, humbly adheres to the rule of law, and respects the wishes of its populace.
I certainly hope they take their time on this and ultimately reach the correct decision without bowing down to Cheney & Co. It's really quite simple, Senators:
NO FREAKIN' AMNESTY FOR THE TELECOMS. PERIOD.
Please, Kossacks, I implore you; contact them today, tomorrow and every day hence until this resolution dies the horrible death it so richly deserves.
And, while you're talking to your respective senators, please voice your disdain for the pernicious piece of legislation known as H.R. 1955. It's Rep. Jane Harman's big ol' sloppy wet kiss on the lips of the Rand Corporation.
Peace