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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?

Not exactly.

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?"

Yes, exactly.

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?

Yes, exactly.

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!

Originally posted to NCrissieB on Sat Jan 24, 2009 at 04:24 AM PST.

Poll

Do you think the Al-Haramain trial should wait until this issue is decided on appeal?

64%157 votes
20%50 votes
5%13 votes
9%24 votes

| 244 votes | Vote | Results

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Comment Preferences

  •  Tips for better reporting :) (183+ / 0-)
    Recommended by:
    skybluewater, emptywheel, Louise, Chi, hannah, Phoenix Woman, Buckeye BattleCry, ORDem, burrow owl, DebtorsPrison, Emerson, dengre, MouseThatRoared, eeff, Matilda, Paulie200, Gustogirl, rktect, Wee Mama, Mary Julia, SoCalJayhawk, srkp23, Ian S, Pithy Cherub, MisterOpus1, high5, michelle, ovals49, slackjawedlackey, MCL, Nina, Bluedoc, attydave, Catte Nappe, grrr, count, tomjones, Daddy Bartholomew, chumley, radarlady, jrooth, Heiuan, Roadbed Guy, mjd in florida, zeuspapa, MT Spaces, EJP in Maine, majcmb1, Pam from Calif, The Raven, sodalis, JanL, Abacab, Orinoco, Patriot Daily News Clearinghouse, RogueStage, dharmafarmer, Im with Rosey, MTmofo, nonnie9999, real world chick, Zwoof, myrealname, Clive all hat no horse Rodeo, coolsub, postxian, Pandoras Box, out of left field, dotsright, Bob Guyer, jarotra, moosely2006, RandomGuyFromGermany, yoduuuh do or do not, karmsy, drchelo, 99 Percent Pure, rainmanjr, jayden, klnb1019, vbdietz, cyncynical, Moderation, gchaucer2, rogereaton, willb48, trivium, sand805, swampus, JaxDem, ShadowSD, Bill Evans at Mariposa, oolali, indyada, skohayes, Its any one guess, pamelabrown, evora, DanK Is Back, MsWings, mofembot, temptxan, mommaK, winterbanyan, luckylizard, BlueStateRedhead, DixieDishrag, Athenocles, marketgeek, debheadley, dmhlt 66, sydneyluv, princess k, mamamarti, satanicpanic, 1BQ, Neon Vincent, litoralis, Michael James, Carol in San Antonio, be the change you seek, notrouble, athensga, Jenai, IamTheJudge, mksutherland, soms, allep10, jackrabbitears, Shuruq, sherijr, fernan47, zenmasterjack, Dragon5616, deviant24x, eva lobach, Leftcandid, ratmach, RinaX, miss SPED, Commoditize This, nsfbr, amk for obama, CS in AZ, Luma, wvmom, Anne933, AJ in Camden, aggie98, sharonsz, pateTX, addisnana, Publius2008, jonwilliamsl, Actbriniel, jeanma, theKgirls, watershed, kktlaw, gobears2000, Colorado is the Shiznit, TAH from SLC, kerflooey, bottlerocketheart, I love OCD, Quite Contrary, Birchwood, cranquette, etbnc, Olon, MaryinHammondsport, Mistral Wind, FarWestGirl, speet, trs, thethinveil, zukesgirl64, FrozeAgain, bamabikeguy, green plum, merrily1000, Edgewater, pensivelady

    I don't know about y'all, but I get really tired of the media getting it wrong about legal cases, again and again, and usually in the most politically skewed and legally nonsensical ways.

  •  interesting. ya know, just from Obama's (23+ / 0-)

    statement he made during the signing of the memorandum which concerned this, I actually thought I understood what he was doing - no tribute to my intellect - but definitely to HIS ability to communicate.

    Sheesh - you wouldn't think the press would spend QUITE so much time in the obfuscation business!

    "We struck down evil with the mighty sword of teamwork and the hammer of not bickering!" - The Shoveler

    by Pandoras Box on Sat Jan 24, 2009 at 04:38:42 AM PST

  •  Whew (10+ / 0-)

    It's too early in the morning to quite grasp everything, but I get the gist (I think).  Thanks for explaining this.  What a mess Bush made of everything!
    He may or may not be stupid, but he sure is a bungler.
    Thanks for filling in for Kula.  Without the pundit round-up and the morning reaction, I can't start the day.

  •  Morning Crissie: (9+ / 0-)

    This is your finest work to date imho.  It's a lot to digest and as myrealname puts it:

    It's too early in the morning to quite grasp everything, but I get the gist (I think).  

    so, I'll copy it and read at a time when I can give it the attention it deserves.  You have an excellent way of dumbing it down for people like me.  

    Rock on girl...

    As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them. -John F. Kennedy

    by JaxDem on Sat Jan 24, 2009 at 04:50:48 AM PST

  •  Good morning Crissie! (4+ / 0-)
    Recommended by:
    Bluedoc, skohayes, NCrissieB, FarWestGirl

    Thank you for the great explanation.  

    It is a slightly complex story.  Don't you think it is a lot to ask for journalists who cover the law to know what they are talking about? ;-)  Or, perhaps the journalists do know, but the editors, who write the headlines have their agenda they want to promote?

    Don't believe everything you think.

    by EJP in Maine on Sat Jan 24, 2009 at 05:11:07 AM PST

  •  Thank you for writing a legal diary (13+ / 0-)

    that us nonlegal types can understand.  The AP headline did make me a bit jumpy, so thanks for the clarification.

  •  You know, Crissie (12+ / 0-)

    I would encourage you to change the title to your diary.  You have a really important diary here, but I am afraid those of us who are not part of Kula's Krew may not find it.  I think it deserves a lot of attention!

    Don't believe everything you think.

    by EJP in Maine on Sat Jan 24, 2009 at 05:22:23 AM PST

  •  Just dropping in to say good morning! (9+ / 0-)

    It is a difficult issue, and thanks for your explanation.  
    Now, it's off to work I go...

    All shall be well again, I'm telling you. Let the winter come and go. All shall be well again, I know. (S Carter)

    by MinervainNH on Sat Jan 24, 2009 at 05:28:24 AM PST

  •  Before flaming AP, let's get our own house in (11+ / 0-)

    order.

    FP'er MB had the same misleading headline here coupla' days back.

    Thanks for explaining the legalese.

    From Alabama to Obama - You've come a long way baby.

    by amk for obama on Sat Jan 24, 2009 at 05:36:13 AM PST

    •  I didn't see it so I can't comment on it. (5+ / 0-)

      My guess would be that Meteor Blades - whom I respect highly - was relying on the other media coverage, all of which was essentially the same.  If you didn't go and actually read the court pleadings, and I did, and if you don't know what you're reading ... it's hard not to assume that everyone's telling the same story because that is the story.

    •  in all fairness and respect for Meteor Blades (2+ / 0-)
      Recommended by:
      NCrissieB, cranquette

      and i think he has earned both from all of us here, we don't need to "get our house in order" with him.

      MB simply reported a story from a publication that has a good reputation, WIRED. MB basically used their headline, quoted them, provided background facts and then asked: "Given that it has adopted the Bush administration's position in this case, the question now to be answered is what role "unitary executive" philosophy will play in the Obama administration."

      In hindsight, MB should have written something like "given that it appears or this story claims..."

      But, we don't have the benefit to post contemporaneous stories with hindsight.

      To say that MB was wrong, is to imply that there was something he could have done to be right.

      If the publication is credible, then bloggers should not have to reinvent the wheel by digging out more sources for the story to confirm all the facts.

      If a credible publication is not good enough source, then for legal stories, the implication is that only lawyers can blog them because only we can sniff out the fallacies in a story that otherwise appears legitimate by a credible publication. I don't think anyone wants to go there.

      NOW, i think we all know that this particular "reporter" at WIRED is full of bullshit.

      "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

      by Patriot Daily News Clearinghouse on Sat Jan 24, 2009 at 10:03:06 AM PST

      [ Parent ]

      •  True enough. (1+ / 0-)
        Recommended by:
        NCrissieB

        But he did not update when more than one lawyer pointed out the error.

        •  you want an update of "claims" or "appears"? (1+ / 0-)
          Recommended by:
          NCrissieB

          honestly, i've seen tons of diaries where the diarist did, as MB did here, and clarified in the comments. But, given that MB just quoted the reporter and provided background from other sources, the "claims" or "appears" is basically implied. I mean, MB was not doing original reporting.

          it seemed to me that the major disagreement of some commenters was the headline, which was generally the headline from the reporter, who screwed up, not MB, who just reported from a credible publication.

          "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

          by Patriot Daily News Clearinghouse on Sat Jan 24, 2009 at 12:31:14 PM PST

          [ Parent ]

          •  Oh, just an update at the bottom of the story (1+ / 0-)
            Recommended by:
            NCrissieB

            something like: Per commenter XYZ, what happened was actually this.

            •  but, skrpy, we still don't know (3+ / 0-)
              Recommended by:
              srkp23, KenBee, NCrissieB

              we know there was a technical change in the legal caption of the parties, that has no substantive meaning, which many people knew even before reading his diary. The big issue was what does this mean "The Government's position remains that this case should be stayed" in terms of obama's substantive position? This was the heart of the wired article.

              A stay is generally a suspension of the proceedings, a time out so to speak. The government requested a hearing on the stay in april. Now, apparently briefs will be filed in two weeks. This gives obama time to get his DOJ together so that his team can file the briefs stating his position on the stay issue.

              I guess MB could have posted an update that said, hey, adding obama's name does not mean that he adopts the substantive position of Bush re FISA wiretapping. But, that was covered in the comments and his diary never said that MB adopted the beliefs of the WIRED article.

              I guess in a perfect blogging world, every diary would provide updates summarizing the clarifications or twists that may occur in the thread.

              "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

              by Patriot Daily News Clearinghouse on Sat Jan 24, 2009 at 02:04:06 PM PST

              [ Parent ]

      •  Agree that MB wasn't culpable. (1+ / 0-)
        Recommended by:
        NCrissieB

        In addition, in the comments, Mary Julia did her best to calm any incipient hysteria.

        Hope is the thing with feathers That perches in the soul . . .

        by cranquette on Sat Jan 24, 2009 at 01:16:57 PM PST

        [ Parent ]

  •  Thanks, Crissie (5+ / 0-)

    For covering for Kula while she prepares to move, and for explaining this misleading headline to the legalese challenged people like me. :)
    I always take any AP reporting with a HUGE grain of salt these days, I wish others would, as well.

  •  EXCELLENT explanation (10+ / 0-)

    of a complex issue (way over the heads of the AP).

    It appears that President Obama knows how our system works and knows how to use it properly rather than acting as "king."

    Off with the arm-chair talking heads!!

    "As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever." -- Clarence Darrow

    by Bluedoc on Sat Jan 24, 2009 at 05:45:01 AM PST

  •  "Obama Sides With Bush? Not exactly...." (3+ / 0-)
    Recommended by:
    rainmanjr, NCrissieB, FarWestGirl

    Seriously.

    Obama didn't drive into a tree ... look! he sided with Bush again!

    Member, The Angry Left.

    by nosleep4u on Sat Jan 24, 2009 at 05:47:14 AM PST

  •  I wish I would have had you in lawschool (7+ / 0-)

    I would have learned a whole lot quicker.

    Very nice work.

  •  Not Obama but loyal bushies side w. Bush (5+ / 0-)

    Marcie Wheeler has the time line. The motion was prepared under the Bush admin and filed under the Obama administrations name. Not even clear if the had authority to do it, given timing and the fact that there are no Obama appointees at Main Justice.

    This may be hijacking, and not the thread kind.

    The lawyers defending the case remain largely the same....It does not appear to be the product of the Obama DOJ because that DOJ simply doesn't exist yet. ...This was implemented, anyway, by Bushies, not Obama people.

    EW ready however to see a blacker interpretation

    That said, that might make it even more offensive on Obama's part. After all, Holder has been denied an opportunity to read this document; it's not clear Obama has read it either. Would they--working in the dark--simply support Bush's attempt to run out the clock, even while Republicans appear to be deliberately stalling Holder's approval?

    Sense of the comments is against the latter. One commenter think that the Obama name is a function of the federal legal procedure requirements and THERE IS NO EVIDENCE OF THE O ADMIN. PART IN THIS.
    (sorry accidental caps lock. not yelling. but it does make this long post easier to read.)

    Let’s keep things simple. The only change that even suggests the filing is associated with the Obama administration is the fact that his name was placed on the docket - which the government has stated is only accordance with the Federal Rules of Civil Procedure, which are not local

    http://emptywheel.firedoglake.com/...

    •  We don't know ... but ... (7+ / 0-)

      ... even if Obama's people directed the DOJ lawyers to proceed with the request for an interlocutory appeal, it was the right legal decision to make in my opinion, and that's the point of the diary.

      The Bush DOJ's handling of the Al-Haramain case was stupid.  No, obviously, the government can't gut FISA by claiming that no one's entitled to any evidence that might prove the government broke the law.  And I tried to make clear in the diary (with the "Nyah nyah" snark) that I thought that was a transparently absurd defense.

      That said, an appellate court ruling whether the "state secrets" privilege exists in a FISA case, the limits of that privilege, and how classified evidence should be handled, is I think essential.  Not only for trying this case well, but for handling the other cases that are pending, and any investigations and prosecutions that may emerge under the Obama DOJ.

      •  Yet, arguably, that's what Appeals already did (2+ / 0-)
        Recommended by:
        BlueStateRedhead, NCrissieB

        In the last go-around.

        Remember, this has been to Appeals before, after which Walker said they had to prove they were aggrieved.

        I understand you point about weighing state secrets and the rights of the aggrieved, but once again I believe you're underplaying the degree to which state secrets has already been litigated in this case.

        This is the way democracy ends Not with a bomb But with a gavel -Max Baucus

        by emptywheel on Sat Jan 24, 2009 at 06:22:39 AM PST

        [ Parent ]

        •  That was a slightly different issue. (7+ / 0-)

          The issue in that appeal had to do with whether Al-Hamarain had to prove they'd been spied on (thus that they were an aggrieved party) as a precondition for standing.  The issue here goes to how to whether classified evidence is protected by the "state secrets" privilege, within what limits, and how that evidence must be handled and stipulated to the jury.

          •  The first appeal was state secrets too (1+ / 0-)
            Recommended by:
            NCrissieB

            I'm not disputing that this appeal is about the whether FISA pre-empts state secret and if not how it should be implemented.

            But the first appeal was absolutely about state secrets:

            Thus, we agree with the district court that the state
            secrets privilege does not bar the very subject matter of this action. After in camera review and consideration of the government’s documentation of its national security claim, we also agree that the Sealed Document is protected by the state secrets privilege. However, we reverse the court’s order allowing Al-Haramain to reconstruct the essence of the document through memory. Such an approach countenances a back door around the privilege and would eviscerate the state secret itself. Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition.

            Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation. Al-Haramain also claims that FISA preempts the common law state secrets privilege. We remand for determination of this claim, a question the district court did not reach in its denial of the government’s motion to dismiss.

            That said, as I've said repeatedly, I think it quite likely that Circuit may say Walker went too far in giving the plaintiffs clearance to see some of these documents.

            This is the way democracy ends Not with a bomb But with a gavel -Max Baucus

            by emptywheel on Sat Jan 24, 2009 at 08:48:22 AM PST

            [ Parent ]

      •  So long as the president's ability (6+ / 0-)

        to withold evidence that might be salient to a case is not absolute, under the state secrets provision, and subject to non-executive review (by the courts) or modification (by congress), persuant to the constitution of course, I think that I'm ok with that. But if the desired outcome of this appeal by the Obama DoJ is to obtain a final controlling ruling that definitively clarifies that the president does have such an absolute, non-reviewable, non-overridable and unmodifiable power, then I'm not so ok.

        A LOT not so ok.

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Sat Jan 24, 2009 at 06:24:08 AM PST

        [ Parent ]

  •  Thanks for explaining all this. (7+ / 0-)

    I really learn a lot from you.  I was concerned about this decision, by Obama, but feel much better about it now.  In fact, I think it's a good decision.  Thanks for talking me down.

    "You don't want to swallow something from Rush's butt. You just don't." - Al Franken

    by rainmanjr on Sat Jan 24, 2009 at 05:58:22 AM PST

  •  Indeed, "Thanks Crissie" (6+ / 0-)

    I have to say that the media's inability or unwillingness to discuss the true legal aspects rather than grabbing for the attention-getting trivia as they usually do is one of the things that disgusts me most about them. So often, the true gist of the situation is buried in paragraphs 3 to 23. Then, because a lot of readers don't read that far, and can't think rationally anyway, rumor starts, and it's helped along by the cynics who blow things out of proportion, thereby earning more headlines for themselves and making the situation worse.

    I thought the comments about the headline writers vs. the actual reporters role in this was right on, too. In our local rag we find two or three examples a week of totally misleading headlines which are not born out by the text.

    When I was in school (I'm in my 70s) we actually studied about propaganda and learned how to read critically and recognize slanted news when we heard it. I'm darn sure they don't do that anymore.

    I concur with earlier comments, Crissie: I hope you will continue to offer your clear analysis about news stories like this. Thanks a bunch.  

    •  You are right (2+ / 0-)
      Recommended by:
      dharmafarmer, NCrissieB

      Students are coming into colleges and universities with few critical thinking skills thanks to "no child left behind" and teachers having to teach to tests.

      It would appear that the media is striving to slant the news rather than reporting it.  We have lost our non-biased based media and returned to the days of rampant yellow journalism.  It has become a "numbers" game...headlines that sell papers...sound bytes that grab attention.  

      I dropped the daily paper years ago and watch mostly CSPAN now except when I am listening for "reports" that I want to research to see what really happened.

      "As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever." -- Clarence Darrow

      by Bluedoc on Sat Jan 24, 2009 at 06:14:54 AM PST

      [ Parent ]

      •  news reporting has become commentary... (4+ / 0-)

        Case in point is the latest kerfuffle over Obama crashing the press briefing to say hello and he became "angry" over a question that "he didn't want to answer".  That's the news story.  But if you watch the tape, it is certainly open to a different opinion.  I saw no anger or irritation or annoyance.  Yet, because it's in an article rather than an opinion piece, it is now "fact" that Obama's facade of being even-tempered seems to be crashing down.  And kids (let's be real here, even adults) don't have the critical thinking skills to decipher fact from opinion. (on a list of several things I want from the Obama administration, my hot button issues are health care and No Child Left Behind...  It's a total travesty what we are doing to our kids!)

        "We have always known that heedless self-interest was bad morals; we know now that it is bad economics" FDR

        by theKgirls on Sat Jan 24, 2009 at 06:34:43 AM PST

        [ Parent ]

        •  Kids are smarter than (2+ / 0-)
          Recommended by:
          NCrissieB, theKgirls
          the adults who design and implement the education system.  Teachers are handcuffed by administrative rules designed to make the schools perform well on test scores.  It produces a bogus educational system where the ones who appear to be the good students are often the ones who can memorize what they are told so they can get good grades.

          I taught at the college level for many years.  I saw the change from students being open to learning how to become critical thinkers to those who actually complained to the administration that I expected them to think their way through exams instead of being provided with "answers" they could "learn".

          Luckily there were those students who DID appreciate what I was attempting to do.  Since I was teaching students going into the medical field I realized that it was essential for them to be able to analyze and think on their feet...because I knew I might encounter them when they went to work!!!!

          "As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever." -- Clarence Darrow

          by Bluedoc on Sat Jan 24, 2009 at 08:21:15 AM PST

          [ Parent ]

          •  Reminds me of the George Carlin joke.... (2+ / 0-)
            Recommended by:
            Bluedoc, winterbanyan

            "Somewhere there is the worst doctor in the world.  And he's seeing patients...."

            With legal coverage, it might help if the courts beat wasn't one of the rookie-reporter-getting-ticket-punched assignments.  Sadly, it usually is....

            •  I used to tell my blase students (1+ / 0-)
              Recommended by:
              NCrissieB

              ...If I ever saw you coming I would pick up my IVs and RUN!!!

              "As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever." -- Clarence Darrow

              by Bluedoc on Sat Jan 24, 2009 at 09:28:03 AM PST

              [ Parent ]

    •  Thank you for the kind words! :) (1+ / 0-)
      Recommended by:
      dharmafarmer

      I too remember studying about propaganda in school.  Ironically, we were studying it in the context of our propaganda about Soviet propaganda....

      Still, I think it's important for our media to do a far better job of reporting on legal cases.  If we don't understand what the law is, We the People can't possibly know whether or how it needs to be changed.

    •  "Public Opinion and Propaganda" ... (1+ / 0-)
      Recommended by:
      NCrissieB

      is the course I remember most from college in the 1950's.

      My term paper was on how maps are used to make "our" part of the world appear to be the center of the universe. It all depends on how the picture is snapped. Still done today.

      As I child of the 30's, WWII was still a vivid memory. Hitler's use of propaganda was stellar [in the worse sense of the word]. Tell lies often enough, blast them in the paper and over radio - soon the lies are believed.

      I think that is why knowing one's core values is so important. Thankfully The President shares his.

      "..a time to renew a sense of common purpose and shared citizenship." Obama 12/24/08

      by Anne933 on Sat Jan 24, 2009 at 01:18:09 PM PST

      [ Parent ]

  •  Non-Cynical Saturday (7+ / 0-)

    If this becomes a regular feature, I will be most pleased to recommend it. You're FP material, Crissie.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Sat Jan 24, 2009 at 06:11:11 AM PST

    •  You're very kind, Raven! :) (2+ / 0-)
      Recommended by:
      The Raven, dharmafarmer

      I actually kinda like the sound of Non-Cynical Saturday, so it may become a regular feature.  Deconstructing cynicism narratives will be important as We the People try to come together to address the many and manifest challenges we face.  Cynicism helps us not one iota, but the Villagers sure love to peddle it.

  •  So basically... (2+ / 0-)
    Recommended by:
    Meteor Blades, NCrissieB

    Except for those brilliant or clairvoyant enough to tell, this motion in no way indicates what the Obama administration thinks of this case or its merits, and as far as we know might agree that the plaintiff had been wronged and deserves recompense (or not), and this appeal is purely intended to prevent this particular case from weakening the states secrets privilege, by having the courts rule that it trumps the FISA provision that plaintiff is using to demonstrate standing?

    I.e. don't let this suit go forward on the basis of this evidence, because, whatever the merits of this case, doing so would both be unconstitutional, and could harm national security in the future, and if plaintiff is to persue this suit, it will have to be on some other basis that doesn't violate the constitution or endanger national security.

    The thing is, if Obama wins, wouldn't that validate the argument that has been made by the right for years that FISA, or at least this part of it, violates the constitution, and is thus unconstitutional? And wouldn't that strengthen the Yoo theory of the unitary executive, that there are certain presidential powers that are plenary, absolute and unchallengeable? And wouldn't THAT in turn take away a basic constitutional right, to sue to determine whether one might have been wronged, in order to demonstrate standing? If Obama wins, don't we all lose, because he will have carved out for himself and all future presidents the power to shield certain potentially illegal actions from ANY legal scrutiny (let alone recourse)? I get the need to protect national security, but if a judge can't be entrusted to rule on case without endangering it, and if congress can't put prudent safeguards on a president's otherwise legitimate powers, aren't we setting up a de facto dictatorship, albeit a quadrenially elected one?

    I don't know. Something doesn't seem right here.

    The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

    by kovie on Sat Jan 24, 2009 at 06:17:36 AM PST

    •  It's about timing, kovie. (3+ / 0-)

      This specific issue is solely about the timing ... when will the appellate courts settle on the "state secrets" privilege as it applies to FISA-related cases?  Should they proceed to trial, then handle any appeals after the final judgment in the case (a typical appeal)?  Or because the January 5th ruling raises such an important procedural and constitutional issue, should they put the trial on hold and get the Ninth Circuit to clarify this issue immediately (an interlocutory appeal)?

      That's all this pleading is about.

      And this is the only pleading that's happened in the case since Obama was inaugurated.

      My guess is that the trial court will grant the interlocutory appeal.  And it wouldn't surprise me if the Obama DOJ's brief to the Ninth Circuit simply asks the court to clarify and specify exactly how the "state secrets" privilege is to be applied in these kinds of cases: its limits, and the procedures for handling classified evidence.

      •  If the only purpose of this appeal is to: (1+ / 0-)
        Recommended by:
        NCrissieB

        1 - Prevent the possible disclosure of classified national security information that could be harmful to national security, in a manner that may not (or may) be permissible under the constitution and existing law and precedent, until there is legal clarification as to what is and isn't permissible under such circumstances.

        2 - Have the courts clarify whether it is permissible for them to examine such classified national security information under such circumstances, and if so in what manner, persuant to the constitutional and any laws and precedents that have bearing upon it.

        At which point the case would be allowed to proceed, or be dismissed, based upon the outcome of this appeal, then I think that I'm ok with it. But if the outcome is such that it's ruled that under no circumstances may classified national security information be examined in a suit, even when plaintiff has cause to have them examined, then that would be a horrible and dangerous ruling, for the reasons I stated in a previous comment. How likely do you think it is that such a categorical ruling is issued?

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Sat Jan 24, 2009 at 03:40:46 PM PST

        [ Parent ]

        •  I think it's very unlikely. (1+ / 0-)
          Recommended by:
          kovie

          If the "state secrets" privilege were interpreted as you described - which was the Bush DOJ's position - then not only FISA but several other important laws would be essentially moot, because their enforcement relies on access to classified evidence.  The Ninth Circuit know that.

          And even during the Bush Administration the federal courts did not buy into his "Article II trumps all in wartime" argument.  Even his (virtually) hand-picked Supreme Court handed him one defeat after another on that absurd claim.  It seems hugely unlikely they'd fall in line after the Bush Administration is over.

          My guess is that Obama's people will brief the Ninth Circuit with more moderated and reasonable arguments relating to specific exclusions (e.g.: "sources and methods") and specific procedures for reviewing and presenting classified evidence - on how to handle classified evidence in FISA cases - rather than taking either the Bush extreme ("state secrets" trumps all else) or the 'liberal' extreme (there should be no secrets at all).

          I put 'liberal' in scare-quotes there because I don't know many liberals who take that extreme.  In the poll above - not at all scientific - only 9% voted for "the government should have no secrets."

          •  I'm hoping that the ability of the courts (1+ / 0-)
            Recommended by:
            NCrissieB

            to review classified information (i.e. "state secrets") will be interpreted fairly liberally (but not as liberally as that 9% appears to want), with the stipulations that:

            1 - A valid need be demonstrated by plaintiff or the courts in each and every specific instance for that information to be reviewed.

            2 - It's limited to only that part of the evidence that can be shown to be salient to the case or situation at hand.

            3 - It's done in a very secure manner that would not reasonably endanger national security or expose classified information publically.

            I think that this could serve the needs of both the public, either as prospective plaintiffs or at large (in the case of FISA), and national security and the various agencies and departments involved in protecting it. But, so long as proper measures are taken to protect national security, and a valid need can be demonstrated, no information should be off-limits to plaintiffs or the courts. I'm guessing that the constitution supports this.

            Also, it might be a good idea to set up, if one doesn't exist already, an independant office within the executive branch that serves as a laison between the courts and the various national security agencies, to assure that information that is legitimately requested is handed over, and done so in a way that protects national security. Otherwise, the courts (and plaintiffs and the public) can never be assured that they're getting all the information that they have a need and right to, and national security agencies can never know if their information is being protected.

            I imagine that Obama and his people know all this and are persuing such a compromise solution. But we need to stay vigilant in making sure of this.

            The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

            by kovie on Sun Jan 25, 2009 at 03:03:53 PM PST

            [ Parent ]

          •  Also, I think that even "sources and methods" (1+ / 0-)
            Recommended by:
            NCrissieB

            shouldn't necessarily be off-limits, since the methods by which, and sources from which, evidence might have been obtained could potentially be tainted. E.g. torture, and detainees who were tortured. The legitimacy of evidence is of course as important as the evidence itself. And plaintiffs and the courts should have secure access to all this, per demonstrated need, or else they're denied their constitutional rights.

            And, of course, in apparently violating so many laws pertaining to such matters, Bush may well have threatened national security, by having spoiled evidence that could have been used against actual terrorists. He and his people likely both violated the constitution AND endangered national security. Way to go, Bushies.

            The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

            by kovie on Sun Jan 25, 2009 at 03:09:29 PM PST

            [ Parent ]

            •  Replying to both here.... (1+ / 0-)
              Recommended by:
              kovie

              I agree with all of your points in the first response, except for creating a separate liaison office between DOJ and the intelligence-defense-security agencies.  To me, that seems like simply another level of bureaucracy.  I'm pretty sure the agencies already have in-house counsel offices who could and should be liaising with DOJ and the White House counsel on a regular basis regardless.  And as for convincing people that all relevant evidence has been turned over ... umm ... the conspiracy theorists will never believe that, no matter what you do.

              As to the second response, the word "sources" in the phrase "sources and methods" refers specifically to human beings, our case officers working with foreign nationals, and the foreign nationals themselves.  To reveal those sources is to eliminate them as sources and possibly endanger their lives.

              And from a legal perspective, I can't imagine any scenario where "sources and methods" information would be relevant in a FISA case.  The issue there is simply whether the government illegally surveilled the plaintiff.

              What sources convinced them to focus on the plaintiff is legally irrelevant if they didn't obtain a FISA warrant.  And if they did get a FISA warrant, the surveillance was legal.  Similarly, the methods they used are legally irrelevant, if those methods required a FISA warrant.  It's enough to show that the government monitored the plaintiff communications, bugged their offices, etc.  Exactly how that was done has no legal bearing on whether it was done or whether it was done without a FISA warrant.

              •  Makes sense (1+ / 0-)
                Recommended by:
                NCrissieB

                I just want to make sure that the courts and plaintiffs are able to fully verify that the evidence in question was obtained legally, and that the ability to do so isn't prevented by states secrets. I agree that they don't need to know irrelevant specifics that could endanger these sources and national security. But they do need to be able to know if all the evidence was legally obtained. I.e. the sorts of things that they'd need to know, and have every right to know, in a regular trial not involving national security.

                It really shouldn't be that difficult to "black box" whatever the courts and plaintiffs don't need to know, to be able to give them what they do need to know. And my suggestion about a separate division to ensure that this was being done was to maintain some internal independance. Otherwise there'd always be the possibility of manipulation. It would be no different than the IG's that already exist within most agencies and departments as independant watchdogs, to make sure that everything's kosher.

                What the GOP doesn't realize is that liberals absolutely care about national security, perhaps even more so than they do. But we also care about civil liberties and the constitution, and don't see any conflict between the two whatsoever. But I guess that when a party is based on stupidity, fear and lies, it's kind of hard to understand that.

                The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

                by kovie on Mon Jan 26, 2009 at 07:13:45 AM PST

                [ Parent ]

                •  I think we're missing a connection here. :) (0+ / 0-)

                  When I say "the plaintiff in a FISA-related case," I mean specifically an Al-Haramain-type civil case - or a prosecution of a government employee - where the allegation is a violation of FISA itself.  In that context, the issues are: (1) was there surveillance of the kind that implicates FISA; and, (2) was there a FISA warrant for that surveillance.

                  In that context, "sources and methods" are irrelevant except to the extent that there was surveillance that implicates FISA.  There's no need to specify exactly how that surveillance was conducted, nor the reasons it was undertaken.  All that's required is a finding that it was done in a way that implicates FISA (i.e.: not mere observation from a public place).  If there was, and if there was no warrant, then the government violated FISA.

                  So far as I know, there's never been a prosecution using FISA-derived evidence, and that's because in such a case the "sources and methods" information would be relevant and subject to defense challenge.  But the underlying premise of FISA was that it applied only to foreign intelligence investigations, where the legal response was to be deportation rather than prosecution.  If the target was a U.S. citizen, or the government wanted to be able to prosecute a non-citizen, they had to obtain an ordinary search warrant in an ordinary federal court.

  •  Speaking as a former guardian (9+ / 0-)

    of classified information (I was the facility security officer at a defense contractor) I have a personal and inside view of the entire classification process.

    First of all, we need it.  The decision to classify a document theoretially is and should be made ONLY to protect national security.  Not to protect an administration.

    Among the many things properly classified are:

        1) Military capabilities, both of troops and weapons
        2) Military plans (would you want the enemy to know your exact capabilities and plans?)
        3) How to build an ICBM, or a nuclear warhead
        4) Stealth technology and other such technologies
        5) emergency preparedness planning (great info for terrorists)
        6) Intelligence sources and methods (remember Valerie Plame?)

    I could go on at some length, but I'll spare you. :)

    In my experience, there are quite a few things that MUST be classified for valid national security reasons.  Unfortunately, the ability to classify has sometimes been abused.  Take Reagan for example.  After Carter started a massive declassification program (I mean, heavens, we had stuff still classified from WWII!) Reagan came into office, halted the entire declassification program, and indeed made a move to classify every single bit of research being done in this country, even at universities.  Only an uproar from academics and other researchers forced him to rethink.  They argued they couldn't conduct research if they were inhibited from exchanging information.  The result was DARPAnet...and out of that the Internet.

    So state secrets are essential to our national security.  The question that must be decided by the courts is how to handle classified documents in a trial in such a way that protects national security without damaging the legal rights of those involved in a court case.  This is a very important question, and the District Court's ruling is too broad, with the potential to seriously damage the essential secrecy privileges that really DO protect us.

    Obama is quite right to ask for legal clarification.

    "It's what you think you know that just ain't so that will get you into trouble." --Will Rogers

    by winterbanyan on Sat Jan 24, 2009 at 06:35:37 AM PST

    •  Thank you for that excellent background. :) (3+ / 0-)
      Recommended by:
      Phoenix Woman, winterbanyan, Anne933

      And yes, as a general rule the GOP tends to favor more secrets, while the Democrats tend to favor more transparency in government.  Obviously, I lean toward the latter ... while recognizing that there are some national security issues that require protection.

      In this case, I think the Ninth Circuit does need to clarify the limits of the "state secrets" privilege in these cases, and lay out procedures for handling classified evidence.  And there must be limits on that privilege - and procedures for handling that evidence - or else FISA is an empty shell of a law.

  •  Wow, Crissie! I rarely comment, but I want to (5+ / 0-)

    thank you for doing an excellent job on explaining this so clearly. Great diary.

  •  You do such a great job getting into the (6+ / 0-)

    details of this and of the many issues that are connnected to it, but there is also a shorter, simpler way to view it:  the U.S. is the DOJ's client and the ruling was adverse the U.S.'s position in litigation.  You would pretty much always seek to stay execution of any adverse ruling pending appeal, including an interlocutory appeal.  

    There are, as you point out, substantive specifics of this appeal that make it particularly appropriate to seek its resolution now.  But even without knowing that, it would practically be legal malpractice to not seek a stay pending resolution on appeal.  That fact in itself doesn't reveal ANYTHING about the Obama administration's thinking.

    I guess maybe Kravets and some posters here thought the Obama administration should just drop the interlocutory appeal altogether and let the case go to trial right away.   Well, they're wrong, and if they'd stop to think about it, I don't think they really want a ruling as broad as the Jan. 5 ruling to stand.  You've put the issue perfectly:  let's not throw out the baby with the Bush bathwater.  In order to get a proper resolution of this issue so that we don't create dangerous precedent that is largely a reaction to Bush' overreaching, we need to revisit that decision and get it right.  Just because the decision was contrary to the Bush DOJ's position, doesn't mean it was the right one.

    The Obama administration is doing the right thing on this interlocutory appeal at this point.  I have absolutely no idea whether the substantive position that it will take  on this appeal and then in the trial of the case itself is going to be right or not.  But neither does Kravets or anyone here.  To pretend that one can know something important from this essentially pro forma 5 page filing seeking a stay pending appeal is absurd.

    So, thanks for taking the time to flesh this whole thing out.  I know there are some who will still think that Obama should have come in and immediately withdrawn the appeal itself, but they are simply wrong.  And if the Obama administration is going to seek to backtrack and get these cases resolved correctly, it is necessary to get that January 5th decision right.  An integral part of appealing it is also staying its execution.  There is nothing sinister about this at all.

    The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

    by Mother of Zeus on Sat Jan 24, 2009 at 07:16:09 AM PST

    •  Yes, that's the guts of it. (5+ / 0-)

      In most cases, not seeking an interlocutory appeal would not be malpractice, because in most cases the appellate issues can be litigated post-trial without any harming any party's interests.  But given the sweeping nature of the January 5th decision I think an interlocutory appeal is essential in this case.

      I don't blame the trial court judge, by the way.  The Bush DOJ made such an absurdly sweeping and obviously self-interested claim of privilege that no narrower trial court decision was possible.  But that doesn't mean the sweeping decision must stand as-is.

      Indeed, if the Obama DOJ makes a more reasonable argument to the Ninth Circuit - and there are sound, reasonable arguments to be made - the Ninth Circuit should easily be able to offer a tempered decision that respects both the interests of transparency and justice and the need to safeguard classified evidence.

      There's a saying in the legal world: "Hard cases make bad law."

      Again and again, the Bush Administration set out to be a "hard case."  I'm actually surprised that the courts have, on the whole, been able to avoid most of the "making bad law" that usually happens when one party sets out to be a "hard case."

      And thank Your Deity Of Choice that we don't have to deal with that "hard case" anymore.

      •  No, I meant in cases where you have (2+ / 0-)
        Recommended by:
        winterbanyan, NCrissieB

        an interlocutory appeal, it'd practically be malpractice to fail to seek to stay enforcement of the ruling under appeal and/or the case itself.  I was semi-joking about malpractice, but honestly, it is hard to imagine many situations where seeking a stay wouldn't be standard practice with a pending interlocutory appeal.  It may or may not be warranted, but one party or the other is almost always going to be seeking it.  That is why I thought it was so absurd for Kravets to be making a big deal out of this filing.  Maybe his broader point was trying to be about whether the Obama administration should have come in and withdrawn the appeal altogether.  That's not what it sounded like.

        The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

        by Mother of Zeus on Sat Jan 24, 2009 at 10:06:37 AM PST

        [ Parent ]

  •  I just had a vision (0+ / 0-)

    I envisioned some of the worst international terrorists from guantanomo in a federal prison stateside networking and teaching techniques to some of our worst domestic criminal element.  
    We might want to keep the two populations segregated, although I'm not advocating another Gitmo.  

  •  More or less what I was thinking myself (4+ / 0-)
    Recommended by:
    evora, winterbanyan, sydneyluv, NCrissieB

    only I didn't explain it to myself so clearly, so I appreciate the diary.  ;)

    You've got a guy here who is an expert in Constitutional law.  Furthermore, his background is as a scholar and then as a participant in government-- not as a trial lawyer.  So he will have as a priority the long-term implications of legal decisions that are made today, and want them settled clearly and justly-- not, like the previous administration, adopting whatever crazy strategy might get him the results he wants, short-term, in any individual case, for the purposes of covering his ass.  It seems only natural that he would support the opportunity to clarify a legal principle relevant to the workings of his administration.

  •  Tipped, rec'd and hotlisted (5+ / 0-)

    Drop dead, outstanding diary, Crissie, not only the spot-on analysis of what passes as journalism, but in explaining legalese to me in a way that doesn't make my eyes glaze over and my head hurt.  

    Great job. Thank you!

    •  Thank you for the kind words! :) (2+ / 0-)
      Recommended by:
      True North, evora

      Explaining the legalese required the bulk of the diary, but what I really wanted to focus on was the journalism aspect.  I'm very disappointed with the "Obama Won't Change Anything, Just Give Up" narrative that has been gaining traction in the media lately.  Cynicism and good citizenship don't mix well.

  •  Thank you for the headache! (3+ / 0-)
    Recommended by:
    True North, notrouble, NCrissieB

    I think I understand it, but my head is spinning (no fault of yours)!

    •  awwwwww ... ::passing you Tylenol:: (1+ / 0-)
      Recommended by:
      True North

      You might try reading it again in an hour or two, after it's had time to rattle around for a bit.  It's not the easiest legal issue ever, but it's not quite as daunting as it may first seem.  And if I can help by answering any questions, I'll be happy to do so. :)

  •  I'm a bit of a radical on this.... (2+ / 0-)
    Recommended by:
    dratman, NCrissieB

    It seems clear to me that only plans of troop movements, the identities of undercover spies, and the keys to ciphers qualify for "state secrets" treatment.  Period.  None of the above is actually implicated in FISA cases.

    Accordingly, the court is correct that there is no state secrets doctrine where FISA is involved, and Obama should drop the appeal on this point.

    However, it may be better to get an appeals court ruling that state secrets do not apply to the FISA case.  If Obama plans to do that -- by defending its appeal on this issue very half-heartedly -- that is a smart move.  In that case, delaying the trial until the appeals court rules is a good idea -- it will provide a more permanent precedent for the principle that state secrets do not exist in FISA cases.

    -5.63, -8.10. Learn about Duverger's Law.

    by neroden on Sat Jan 24, 2009 at 08:31:38 AM PST

    •  Please explain radical point of view (2+ / 0-)
      Recommended by:
      winterbanyan, NCrissieB

      Neroden, in a comment above this one, at

      http://www.dailykos.com/...

      winterbanyan writes

      Among the many things properly classified are:

         1) Military capabilities, both of troops and weapons
         2) Military plans (would you want the enemy to know your exact capabilities and plans?)
         3) How to build an ICBM, or a nuclear warhead
         4) Stealth technology and other such technologies
         5) emergency preparedness planning (great info for terrorists)
         6) Intelligence sources and methods (remember Valerie Plame?)

      I could go on at some length, but I'll spare you. :)

      Respectfully, why do you believe some of winterbanyan's categories do not require secrecy?

      Thank you.

      "This document is totally non-redactable and non-segregable and cannot even be meaningfully described." *

      by dratman on Sat Jan 24, 2009 at 08:42:41 AM PST

      [ Parent ]

  •  If not AP et al, where can we find good info? (1+ / 0-)
    Recommended by:
    NCrissieB

    Accepting that AP and other MSM purveyors are not useful sources for legal case information, can NCrissieB suggest a better place to look for more reliable explanation and commentary?

    "This document is totally non-redactable and non-segregable and cannot even be meaningfully described." *

    by dratman on Sat Jan 24, 2009 at 08:32:55 AM PST

    •  The foreign media tends to be far better (2+ / 0-)
      Recommended by:
      NCrissieB, FarWestGirl

      in its reportage of American affairs.  

      Even many of the British sources, like The Guardian.  I'm always finding interesting news there.

      Also the Asia Times.  

      Here, I like to check out Thinkprogress.org every day, and I'm a new fan of cryptogon.com, although it cherry picks the unusual stuff, not really an all-around news source.

      I've found Bloomberg to be a better source of regular news than a lot of mainstream "news" sources.  

      But basically you have to look for it.  The American "news" media serves you up what they want you to hear, and the AP is especially, ESPECIALLY bad.  

      William Casey "We will know that we have succeeded when everything the public believes is false"

      by Inky99 on Sat Jan 24, 2009 at 09:03:33 AM PST

      [ Parent ]

      •  I'm asking more specifically about legal matters (1+ / 0-)
        Recommended by:
        NCrissieB

        I'm aware of many foreign (and some domestic) sources of better information. What I was asking is where I might go for informed commentary about legal matters.

        "This document is totally non-redactable and non-segregable and cannot even be meaningfully described." *

        by dratman on Sat Jan 24, 2009 at 07:08:56 PM PST

        [ Parent ]

    •  Original sources are good. :) (0+ / 0-)

      One of the most important and least appreciated safeguards in our constitutional republic is our common law system, where prior decisions carry the weight of law in similar future cases.  That means our appellate courts must explain every substantive decision in writing, and those decisions are public records.  Most other court documents are also public records, and in the 21st century you can read most of them online, free of charge.

      That means legal cases are not like other news events, where you can't see what happened and you have to rely on a reporter to tell you.  In the appellate courts at least, and often in trial court proceedings as well, you can do your own reporting, finding and reading the pleadings, briefs, and court decisions for yourself.

      Admittedly, some of will be legalese, a shorthand of legal words with precise definitions that allow us to write about a given case without having to reprint the entire law library.  But most of that will be clear enough in context, and where it's not you can always come to DKos or some similar forum and ask lawyers to clarify it.  It will help if you give us a link to the case and a specific question, but there are a lot of lawyers here who are willing to answer questions of that sort.

      I'm going to admit a strong bias here, but I think our judiciary is probably our strongest branch of government, in terms of safeguarding our rights and making reasoned and reasonable decisions.  So as a general rule, if the media tell you the courts have just done something boneheadedly stupid, you should probably assume the media have the story wrong, at least until you check it out for yourself and find that this is, indeed, boneheadedly stupid.  It does happen sometimes, but not nearly as often as the media would have you believe.

  •  The media astounds me (3+ / 0-)
    Recommended by:
    NCrissieB, cranquette, FarWestGirl

    with this kind of crap, even now.

    Did you see that Newsweek cover story, that basically suggested that Obama might have to take Dick Cheney's view of the Presidency to heart?

    And now, yes, this headline that you mention from the AP.  

    Every day I see more of this.  If I weren't still drinking my coffee and waking up I would probably remember the specifics of a few others.  :)

    William Casey "We will know that we have succeeded when everything the public believes is false"

    by Inky99 on Sat Jan 24, 2009 at 09:00:19 AM PST

  •  I'm pretty confused about the "irreparable harm" (1+ / 0-)
    Recommended by:
    NCrissieB

    Seems to me the horse has left the barn on the first one.  It's public record at this point that Al-Haramain's lawyers were spied on.

    As for the second one, wouldn't the appeal proceed in parallel with the trial?  If so, the legal question of whether there is any state secrets in FISA cases would be resolved regardless of whether the trial is stayed.  Surely the appeals court decision would be the prevailing precedent, not the lower court decision ...

    "I agree with you, I want to do it, now make me do it." - Franklin D. Roosevelt

    by jrooth on Sat Jan 24, 2009 at 09:12:45 AM PST

    •  Appeals don't proceed in parallel with trials. (1+ / 0-)
      Recommended by:
      jrooth

      Only one court can have jurisdiction over a given case at a time.  The trial court has jurisdiction (unless it stays the proceedings for an interlocutory appeal) until it issues a final judgment.  Then, and only then, does the case go to an appellate court.  The alternative would be procedural chaos.

  •  Cynicism is a core tool of the ownership class (1+ / 0-)
    Recommended by:
    NCrissieB

    Ever since Adam Smith wrote his paragraph about the invisible hand the idea that good intentions, when acted on directly, are incapable of producing the results they intend to achieve.

    "By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. ... By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it."

    Modern capitalism, at least the Milton Friedman school particularly, has taken the presumed superiority of individual "self interest" over intentional action directed toward achievement of the common good as an article of faith. When I switched from an Edwards supporter to an Obama supporter it was when I saw the Obama strategy aimed at undermining this cultural foundation of our economic system and all the ills that come out of it.  

    Love = Awareness of mutually beneficial exchange across semi-permeable boundaries. Political and economic systems either amplify or inhibit Love.

    by Bob Guyer on Sat Jan 24, 2009 at 09:18:24 AM PST

  •  Thanks for this! (2+ / 0-)
    Recommended by:
    NCrissieB, FarWestGirl

    The right diary here at Kos will always make clear what the regular media try to obscure.

    Radarlady

  •  Thanks, Crissie, for a sane analysis. n/t (2+ / 0-)
    Recommended by:
    NCrissieB, FarWestGirl

    [T]he LORD had said unto Moses, Say unto the children of Israel, Ye are a stiffnecked people: ... I will consume thee: ~ Exodus 33:5

    by 99 Percent Pure on Sat Jan 24, 2009 at 10:43:13 AM PST

  •  Hey, This Is Too Complex. (1+ / 0-)
    Recommended by:
    NCrissieB

    Can't I just read the original article and write a screed on dKos about how Obama is selling us down the river?

    ;)

    Yes We DID!!!!!!! Now back to work!

    by InquisitiveRaven on Sat Jan 24, 2009 at 10:50:26 AM PST

  •  Thanks for the thoroughgoing ... (5+ / 0-)

    ...explanation, NCrissieB. Quite helpful for all of us, I'm sure, especially non-lawyers like me.

    One point: Many of the complaints about my original piece - which was mostly a recap of the Wired piece and background on Al-Haramain in general (not the specific issues relating to the effort to get Judge Walker to stay his ruling until an appeal is ruled on) - related to the notion that the Obama administration would not take the same stance in this case as Bush. Those arguments, it seems to me, both from further reading and your analysis, just don't hold water. We don't know how the Obama administration will go on this, but it seems quite possible that it will support the Bush administration's argument in this narrow but matter (although not in the matter of illegal wiretapping overall).

    You might also be interested to know that David Kravets has written a second piece relating to the hearing on Friday. Here it is: Obama Administration: Wiretapping Legal Challenge Must Die.

    Americans do not like to think of themselves as aggressors, but raw aggression is what took place in Iraq. - John Prados

    by Meteor Blades on Sat Jan 24, 2009 at 11:06:39 AM PST

    •  So far it's the same issue. (2+ / 0-)
      Recommended by:
      Phoenix Woman, KenBee

      This is just the oral arguments in support of the pleading filed on the 23rd.  We don't know yet if any the DOJ lawyers arguing the case have received any instructions from the Obama Administration.  So far they're still reporting to Mukasey, as Eric Holder's appointment has been delayed in the Senate.  And yes, the quote from the attorney (in oral argument) states the obvious: if the trial court adopts the Bush DOJ's position, the government wins by default because the plaintiff can't prove he was spied on.

      Yet again, the headline and story make sweeping assumptions that are not supported by the actual events.

      •  Thanks, Crissie (1+ / 0-)
        Recommended by:
        NCrissieB

        The Kravets writings are being pushed far and wide by those who, as you say, are really trying to push the Obama=Bush meme.  (Many if not most of these persons, surprise surprise, backed somebody else in the primaries.)  Hope you don't mind if I cite you in my own efforts to stem the tide of reflexive cynicism.

        Visit http://theuptake.org/ for Minnesota news as it happens.

        by Phoenix Woman on Sun Jan 25, 2009 at 07:03:33 PM PST

        [ Parent ]

  •  The ulitmate point of MB's (4+ / 0-)
    diary, see here: http://www.dailykos.com/...

    was whether Obama should continue trying to defend the states secrets privilege in the context of all that has gone on in this case.

    There is the suspicion that the veteran attorneys on this case are pursuing their own agenda, rather than the current adminstration's.  

    Judge Walker has ordered further briefing.  I suspect he wants to be sure that O and AG Holder really want to pursue this defense in this case.

    http://blog.wired.com/...

    I survived the Bush Administration, 2000-2008

    by Publius2008 on Sat Jan 24, 2009 at 11:22:29 AM PST

  •  Do you really perceive an Obama=Bush wave (1+ / 0-)
    Recommended by:
    NCrissieB

    sweeping over the Land of the Free and the Home of the Brave?

    I've heard a very few sullen wingnuts say things such as that, but haven't picked up on any wide-spread "plus ça change plus la même chose" feeling.

    Greg Shenaut

    •  There are some folks still fighting the primaries (1+ / 0-)
      Recommended by:
      NCrissieB

      Plus a few that are so far to the left that they think that Paul Wellstone would equal George W. Bush.

      Those two types are the ones who have latched onto the Kravets pieces and are spamming them all over the place.

      Visit http://theuptake.org/ for Minnesota news as it happens.

      by Phoenix Woman on Sun Jan 25, 2009 at 07:30:19 PM PST

      [ Parent ]

  •  Do you want to reconsider this diary (1+ / 0-)
    Recommended by:
    NCrissieB

    in light of this (emphasis added):

    Government trial lawyer Alexander Haas filed two case management statements on Thursday, but accidentally filed the first one citing George W. Bush as the president. Haas seemed to realize his error, filing the same document again but writing, "(Corrected) filed by Barack Obama," before going on to list the other named defendants. On the first page of the corrected case management statement, Haas writes that "President Obama is substituted in his official capacity as a defendant in this case" under the Federal Rules of Civil Procedure, section 25(d)...

    ...as Al-Haramain attorney Jon Eisenberg pointed out at today’s hearing, none of Obama’s political appointees to the Department of Justice have assumed control yet, not even would-be Attorney General Eric Holder Jr.

    When you say

    ..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.

    and other such things, are you assuming something which needs to be proven (eg. Obama has really taken ownership of this case) and just defending Obama in a knee-jerk reaction?

  •  Very well explained, (1+ / 0-)
    Recommended by:
    NCrissieB

    and thank you for the clarification.  I was troubled when I initially read the Wired article, and your explanation made me feel a little easier about the situation.

    Tipped and rec'd.

    Lawrence, KS - From ashes to immortality

    by MisterOpus1 on Sat Jan 24, 2009 at 01:04:11 PM PST

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