Comments on: Vaughn Walker’s Chess Game: The New Rules

By: bmaz

bmaz — Sat, 06 Jun 2009 21:17:27 +0000

Theoretically, maybe; in practice, the same proof will likely apply and they will either have it or not. I am really not certain on this, but it is what I would argue. (Caveat: I am marginally full of dung).

By: emptywheel

emptywheel — Sat, 06 Jun 2009 20:46:38 +0000

What do you mean? That the suits against the govt in general might be able to proceed, even if they don’t make the case against named defendants?

By: bmaz

bmaz — Sat, 06 Jun 2009 19:46:03 +0000

But as for the immunity claims, this is where Walker seems to be insisting on the importance of the legislative record. In addition to his ruling that FISA trumps state secrets because there must be some kind of recourse for violations of FISA (the appeal of which, of course, the government flubbed), there’s his repeated reference to the legislative record from FAA, which makes it clear that Congress at least claimed to believe the individuals who authorized the program could be sued. To some degree, Walker’s ruling last week seems to have been a long statement saying, “you want me to read the legislative record on retroactive immunity strictly? then I’ll read it attentively when it comes to suing George Bush, too.”

Yes, and contra to Iqbal like situations, I read Walker to be saying that such action need not be just against individuals, but lay against the sovereign as well due to specific waiver he finds in the statute and legislative record.

By: bmaz

bmaz — Sat, 06 Jun 2009 19:09:34 +0000

The question then becomes whether Walker will find that they have sufficiently proved they are aggrieved parties such that they get to the point where FISA trumps state secrets and that information can be considered in the suit. And also, whether or not Walker will apply his general understanding of the program, including what he has learned through al-Haramain, to his assessment of the Jewel plaintiffs’ aggrieved status.

The question is also how Walker applies Jeppesen in doing the above.

By: bmaz

bmaz — Sat, 06 Jun 2009 18:27:56 +0000

Yeah, I understand exactly what you are saying, and do not necessarily disagree. That said, my understanding from talking to someone that was there is that Walker was specifically intoning that he was not viewing this as a “sanctions” process. I actually think that is pretty smart of him to state that as it leaves the factual findings resultant from a regular process, not a penalty process. Either way, it is what it is, and what it is is moving forward to a judgment. I’ll take that in a heartbeat. And as you note, and I have been trying to convey since this path first emerged, this leaves a nasty potential wicket as far as claims for collateral estoppel in related cases (al-Haramain is a separate case, but everything gets filed under the common multi-district combined docket as well). Makes things, at a minimum, very interesting in this regard.

By: emptywheel

emptywheel — Sat, 06 Jun 2009 18:14:38 +0000

Oops. Fixed, thanks.

It’s hard to keep those Reagan-era Iran-Contra retreads straight sometimes.

By: emptywheel

emptywheel — Sat, 06 Jun 2009 18:13:21 +0000

Interesting point, Mary.

Particularly since (I think) he’s gung ho on Jewel.

The logic behind this practice is not that Bush ordered up wiretapping and it went forward. It’s that Bush ordered up some data mining that is itself illegal that FISC has–at least partly–deemed to get beyond Fourth Amendment concerns. That is, they’ve found the search itself reasonable, but not commented on the process by which they got to the search. I wonder if this is what is sticking in Walker’s craw, and if that’s why he’s pointing to public information of the type that Jewel uses.

By: bmaz

bmaz — Sat, 06 Jun 2009 18:10:26 +0000

There are a few things missing (most critically, IMO, Jello Jay’s letter to Cheney, a named defendant, saying on the day before the Senate withdrew funding for data mining of this sort that the program reminded him of Negroponte’s TIA

Negroponte or Poindexter?

By: emptywheel

emptywheel — Sat, 06 Jun 2009 18:09:00 +0000

You know, they don’t cite that Leonnig article; though they do cite a different one. And in their most recent declaration, EFF says they want a deposition from Royce Lamberth, but they don’t mention Kollar-Kotelly.

By: fatster

fatster — Sat, 06 Jun 2009 18:02:30 +0000

Really! At a minimum she should end up with an honorary law degree from a very prestigious school. In addition to all the awards she’ll no doubt acquire. Brilliant work!