Comments on: Breaking! Judge Walker Gets Ready to Penalize the Government in al-Haramain

By: Petrocelli

Petrocelli — Sat, 23 May 2009 20:22:32 +0000

You go to the drive- in to watch movies ?!!

When did this crazy idea take hold ?

By: Petrocelli

Petrocelli — Sat, 23 May 2009 20:18:52 +0000

We were just having some juvenile fun about not naming it …

I really, really liked it, esp. since I was an ardent fan of the original Star Trek series.

Well worth seeing, esp. the great special effects. Everyone left the cinema smiling …

By: bmaz

bmaz — Sat, 23 May 2009 19:36:50 +0000

The establishment of illegal activity and/or program would be significant if that finding were to be adopted for Hepting et. al; but it still would not be dispositive. Note, I don’t even see how it gets them past the standing issue, and I think there are real problems with the state cases in the group. A solid finding established in al-Haramain sure wouldn’t hurt the other Consolidated cases if Walker were to take judicial notice of it. It sure wouldn’t hurt.

By: bmaz

bmaz — Sat, 23 May 2009 19:31:14 +0000

Yes, I have, and the results varied; it is not always a net negative. That said, I have never been effectively defaulted. This will be interesting; It is clear what Walker is threatening as the punishment, but he did threaten under the provision of 37(b) that allow him the greatest latitude under the circumstances, so we shall see.

It should be noted however, that your logic @125 is based on an apparent flawed assumption. Al-Haramain itself is distinguishable from the other Consolidated cases that are germane to the retroactive immunity issue. So I think it will bleed over in a significant way? Yes, but that is not certain.

By: GefilteFish

GefilteFish — Sat, 23 May 2009 19:21:59 +0000

I disagree. I don’t think a ruling on government liability by Walker in Al-Haramain would have any direct affect on the retroactive immunity in the Hepting v. AT&T cases against the telecoms. And the type of surveillance is different between the two cases: direct wiretapping v. dragnet data mining. I’d be interested in hearing a lawyerly opinion on that.

By: Mary

Mary — Sat, 23 May 2009 19:18:47 +0000

Thank you for the information. It’s hard to keep playing by the rules, as you have vis a vis this “classified” information of governmental warrantless surveillance, while they other side cheats over and over without consequence. If that’s “without consequences” is about to change, that would be a good thing.

By: NMvoiceofreason

NMvoiceofreason — Sat, 23 May 2009 18:26:53 +0000

Have you ever had a client who refused to obey court orders? And how did that work out for them?

By: NMvoiceofreason

NMvoiceofreason — Sat, 23 May 2009 18:24:07 +0000

I agree with your sentiments. To answer EW’s question:

But if Walker rules in al-Haramain’s favor, what does that do for the retroactive immunity case?

The presumption of removal of evidence or failure to obey court ordered discovery is less severe than the presumption of spoilation of evidence. But either way, he is presuming that what Al-Haramain says is true and what the government says is false. The presumption then directly refutes the government’s claim that its agents are entitled to retroactive immunity, as they are in essence admitting everything claimed is true, or THAT THE TRUE FACTS ARE WORSE. They will file a show cause answer, but it will be weak, and they will know the consequences: a judge who knows you are lying to his face, is already POed about the games you’ve played with claims and evidence, and is entitled to the presumption to rule against you on everything. Yep. Lawyers screwed the pooch on this one. Hasta la vista Telcos and TSP.

By: emptywheel

emptywheel — Sat, 23 May 2009 16:31:28 +0000

Oops. My translator software must be set on “family friendly.”

By: Nell

Nell — Sat, 23 May 2009 15:43:10 +0000

Even more reason to look forward to seeing it at the drive-in (where you can turn down the sound on the radio).