As Kula is preparing to move and hasn't time to post, I offer this to give the Kula Krew a place to gather for Koffee, Kuddles, and Konversation.
Honestly, a part of me wishes the media would just give up on covering our legal system. I understand that public trials and a transparent judicial system are enshrined in the Constitution, and for good reason. But the media messes it up so consistently, and so badly, that their "coverage" is often worse than no coverage at all.
A case in point is this article on Wired Blog Network: Obama Sides With Bush in Spy Case.
Well, not exactly. More below the fold....
The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.
So writes David Kravets for Wired Blog Network. Now, I don't know if Kravets is a lawyer, but I'm guessing not. His story basically parrots an AP story that was out yesterday with a similar headline. (Sorry, but I can't find the link to the AP story.) Like a lot of people, he may have thought the AP was a reliable source.
When it comes to covering court cases and decisions, in my experience, few in the media do even a passably adequate job. The AP usually doesn't, and this story isn't even close. It does, however, feed the popular narrative that Obama really won't be any different from Bush, so give up and go back to being cynical ... complaining but uninvolved. More on that later.
First, what really happened?
The Department of Justice, through Acting Assistant Attorney General Michael F. Hertz, filed a memorandum of law in support of a prior motion for a stay of trial proceedings in the case of Al-Haramain Islamic Foundation v. Obama (formerly Al-Haramain v. Bush). Don't worry about the legalese. I'll break it down for you.
A brief case history.
Al-Haramain Islamic Foundation is an Islamic charitable group. They filed a civil suit against the U.S., in the name of then-President George W. Bush, alleging their communications were illegally monitored, without a warrant, in violation of the 1978 Foreign Intelligence Surveillance Act (FISA). In defense, the DOJ filed three pretrial motions to dismiss or for summary judgment. Those motions asked the trial court - the Federal District Court for the Northern District of California - to dismiss the case, on various grounds.
The third motion alleged that Al-Haramain had no standing to sue, as they could not prove their communications had been monitored. The DOJ claimed that Al-Haramain could not prove they'd been monitored, because the NSA records of who was or was not monitored were classified. What's more, the DOJ refused to turn over those records, claiming the "state secrets" privilege.
In short, the Bush DOJ's position was essentially: "We have the only irrefutable evidence of who was spied upon, and it's classified and thus protected by the 'state secrets' privilege, so the defendant can't prove they were spied upon, so throw the case out. Nyah-nyah."
On January 5th, the trial court denied the motion to dismiss. But the trial court went beyond that, ruling that the "state secrets" privilege does not exist in FISA-related cases, because FISA supersedes that privilege. On January 19th, the Bush DOJ filed a petition to stay the trial proceedings pending the resolution of that appeal in the Ninth Circuit Court of Appeals.
Of course, the next day, President Barack Obama was inaugurated. Thus Al-Haramain v. Bush became Al-Haramain v. Obama, and on January 23rd, the Obama DOJ filed a memorandum explaining why the trial court should stay the proceedings pending appeal.
But doesn't that mean "Obama Sides With Bush in Spy Case?
The January 5th ruling that the "state secrets" privilege does not exist in FISA-related cases was huge. This is not the same as the "executive privilege" we heard about in the Libby case, where the president asserts that all conversations with aides are protected because the president needs to have candid advice. The "state secrets" privilege covers classified information.
We can debate whether the Bush Administration classified too much (I think they did). We can debate whether the Obama Administration should or will declassify a lot of that information (I think they should and hope they will). But I hope we can agree that classified information must be protected unless and until it is declassified. A lot of it is classified for very good reasons, and we shouldn't throw the nation's baby out with Bush's bathwater.
The specific issue here is not whether or how the Obama DOJ will defend the Al-Haramain case. In fact, the January 23rd memorandum says not one word about whether or how the Obama Administration will treat that case, except that the Obama DOJ does want the trial court to stay proceedings until the Ninth Circuit hear the appeal of the trial court's January 5th order eliminating the "state secrets" privilege in FISA cases.
In legalese, that's called an interlocutory appeal, an appeal that is heard "between pleadings" to the trial court.
Umm ... Crissie ... it's too early for legalese.
Usually a case doesn't go to appeal until the trial court issues a final judgment, either a conviction in a criminal case (the government can't appeal an acquittal), or a judgment for a party in a civil case. The losing party then has a right to appeal that judgment in the next highest court. That appeal can include decisions made during the trial, as well as any pretrial decisions. So if the defendant in a civil case files a pretrial motion to dismiss, and that motion is denied, the case moves on to trial. If the plaintiff wins at trial, the defendant can appeal not only the decisions made during the trial, but also that decision to deny the pretrial motion to dismiss. All on one appeal. This both saves the appellate courts' time, and moves cases through the trial courts faster. (As if "fast" could apply to anything that happens in court cases, but that's another topic altogether.)
In an interlocutory appeal, a party that lost a pretrial motion asks the trial court to stop the proceedings while the appellate court hears the appeal on that pretrial motion. In general, the courts don't grant these requests. In order to qualify for an interlocutory appeal, the party must show that it would suffer "irreparable harm" if the case proceeds to trial, and that it would suffer that "irreparable harm" even if it wins at trial. Either merely having the trial, or the time that will pass before the trial is concluded, will cause the harm ... whether you win or lose at trial.
So what's the "irreparable harm" here?
There are two.
The first relates to a fax that was sent in error by the government to Al-Haramain's defense attorney. The fax was a classified document that proved Al-Haramain was spied on. When the DOJ learned of the fax, they immediately asked the court to order Al-Haramain's attorney to return it, because it was classified. The court agreed, and Al-Haramain's attorney did return the fax. (I've read that copies of the fax were also sent to several media outlets; I don't know whether they were ordered to return their copies, or whether they've done so.)
The trial court judge said he would review the fax in camera (secretly, in his chambers) so that no classified information would be released to the public. The Bush DOJ said that wasn't enough, because merely allowing the case to proceed to trial will require the court to stipulate (to state as a fact for the jury) that Al-Haramain was spied on, and that fact is the classified information they claim is protected by the "state secrets" privilege. So even if the classified document isn't released, the classified information would be released.
The second "irreparable harm" relates to whether the government will be able to appeal the January 5th decision. Remember, only the losing party can appeal the final judgment. If the government wins the case at trial - if, for example, Al-Haramain can't show they suffered any harm from being spied upon, or if the jury simply decides in favor of the government - the government has no right to appeal that January 5th decision. Al-Haramain would have a right to appeal, and if they did the government could cross-appeal on the January 5th decision. But if Al-Haramain doesn't appeal, the government couldn't appeal the decision on its own.
So the January 5th decision - striking down the "state secrets" privilege in FISA-related cases - would stand as persuasive (though not binding) precedent in other FISA-related cases, unless and until the government lost a FISA-related case and could appeal that decision.
So Obama's just saying "We need to settle this specific legal issue before the case goes on to trial?"
The January 23rd memorandum to the court does not "side with Bush," except in the very narrow sense that the Obama Administration seems to agree that the appeal of the January 5th decision should happen before the case goes to trial. And there are sound constitutional reasons for that position.
The "state secrets" privilege is grounded in the president's Article II authority as Chief Executive, because whether to classify a document is an Executive Branch call. There are statutes setting out procedures for declassifying a document, but the decision to classify is and has always been an executive decision, usually made by the person or office creating the document, at the time of its creation. The rules for what kinds of documents should be classified are set by Executive Orders.
So essentially, the trial court found that the 1978 FISA supersedes Article II, and legislative acts can't supersede the Constitution. So the Ninth Circuit, and perhaps ultimately the U.S. Supreme Court, should decide whether the "state secrets" privilege applies, and how classified information should be handled, in FISA-related cases. While the specific classified information in this case is already public knowledge, that won't always be true. And while the specific classified information in this case does not seem to reveal any sensitive "sources and methods," that won't always be true either.
So regardless of whether and how the Obama Administration defend this one case, there are sound arguments for letting the appellate courts decide how to handle classified information in FISA-related cases. That will be especially important if the Obama Administration investigate and ultimately prosecute government officials on FISA violations. They will need to be sure they handle classified information in the best way to both protect sensitive "sources and methods" and provide transparency and justice for the parties.
So Obama kinda-sorta "Sides With Bush," but really wants to ensure the courts get these procedures right?
But Obama wants to ensure courts get procedures right doesn't make for a properly cynical headline. It doesn't fit the clearly emerging narrative of "Obama will be just like Bush, so give up, go back to complaining because nothing ever changes." And that's the cynical narrative the media would love all of us Natives to buy, so the Villagers can go back to running things their way while we grumble despondently and go along. That cynicism is about discouraging we Natives from trying to stay engaged and involved in our government. It's about going back to business as usual, where the Villagers lead us from one vat of whine to the next, but always in that tut-tutting way that says "Of course, there is nothing you mere peons can do about this."
And I've had more than enough of that.
How about you? Happy Saturday!