Terror Case May Force Obama’s Hand on ‘State Secrets’-Motion Asks Judge To Rule

[kpete]

Source: Washington Independent

Terror Case May Force Obama’s Hand on ‘State Secrets’
Motion Asks Judge to Rule on Limits of President's Surveillance Authority
By Spencer Ackerman 7/9/09 4:44 PM


A long-awaited filing Thursday in the al-Haramain v. Bush terrorism case before a San Francisco federal judge presents a dare to the Obama administration: embrace the Bush administration’s warrantless surveillance claims, invoke a secrecy doctrine that Attorney General Eric Holder has pledged to overhaul, or allow a case challenging the merits of warrantless surveillance to win.

Lawyers for al-Haramain, a Muslim charity that the Bush administration accused of having links to terrorists, filed a motion Thursday for U.S. District Judge Vaughn Walker to assess the legality of surveillance undertaken outside the boundaries of the Foreign Intelligence Surveillance Act. The motion, obtained by TWI, asks Walker to answer a question central to the Bush administration’s expansion of executive authority: “May the President disregard the requirements of FISA based on inherent presidential power?”
Illustration by: Matt Mahurin

Other lawsuits challenging the warrantless surveillance program of the Bush administration have been rejected by the courts, including by Walker, for insufficiently establishing that the plaintiffs were themselves subject to such surveillance — making the al-Haramain filing the most likely vehicle for determining whether the Bush administration broke the law by ordering surveillance outside of the boundaries of FISA.

“This is the culmination of three and a half years of work, over repeated attempts by the government” to shut the case down, said Jon Eisenberg, the lead attorney for al-Haramain. “There have been shenanigans by the Bush Justice Department, which were no surprise, but also by the Obama Justice Department, which has been a shock.”

Read more: http://washingtonindependent.com/50268/terror-case-may-force-obamas-hand-on-state-secrets

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FILING: http://static1.firedoglake.com/28/files//2009/07/al-haramainsumjudg.pdf

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

[MannyGoldstein]

1. The Audacity of "Just Kidding"

Ugly trend.

[orpupilofnature57]

4. ' Friendly Fascism '

[orpupilofnature57]

2. War was once an Act of Congress.

[tigereye]

3. I wish this would be resolved - I'm really surprised that it hasn't been

:(

[orpupilofnature57]

5. I had hoped it was one of President Obama's first acts ,like banning Lobbyists.

[tigereye]

6. yeah, that's what I expected- I'm guessing there is some legalistic issue

that I'm not getting. But it does seem inconsistent with the rest of his immediate actions.

[bobshin]

7. I'm guessing Obama is another Conyers.

Get everyone worked up on getting to the bottom of things and then dropping the ball. We may never have an accountable election ever again thanks to Conyers and with "change we can believe in" Obama, 1984 is getting closer to reality. We expect this from Republicans. We're easily duped into believing the Democrats are any different.

[DCKit]

8. bobshin is on Conyers email list too.

Lots of friction, tons of smoke, but no fire. Conyers probably doesn't photograph or x-ray like the rest of us either - it's all smoke, mirrors and misdirection.

Sorry John, but you played your hand too early and far too poorly. You can join Henry, Nancy and Max on the off-ramp.

[Hydra]

9. President Obama has already signaled that he thinks this power is important for him to have

Despite how illegal it is. This will simply be the final signal if indeed he doesn't decide otherwise.

[slipslidingaway]

10. Your subject line does not match the subject line on the GP...

it currently reads.

"“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”


:shrug:

[slipslidingaway]

11. Just noticed that the post has been edited...

maybe that was the original title when it first made it to the GP???

Someone mentioned last week that the edited subject line did not appear on the GP because it had already made it to the GP.

Just a guess.

[No Elephants]

16. Jaysus.

[chill_wind]

12. Some very damning stuff (emptywheel analysis)

Take a look at what some of the other officials serving in the Obama Administration used to say about the illegal Bush/Cheney surveillance program on page 21 of the motion for summary judgment. The really damning section, however, is contained in pages 26-28 of the motion:

Again, not even President Obama or members of his administration agree with the White Paper’s radically expansive theory of inherent presidential power. Principal Deputy Solicitor General Neal Katyal has said: “Claims of ‘inherent’ power . . . fall flat given the fact that FISA has been enacted.” Katyal & Caplan, supra at 1034. Solicitor General Elena Kagan has called the Bush administration’s legal opinions justifying the TSP “expedient and unsupported,” written by “lawyers who failed to respect the rule of law” and who do not understand that “the law and its precepts reign supreme, no matter how high and mighty the actor and no matter how urgent the problem.” Elena Kagan, Address to Cadets at the United States Military Academy at West Point (Oct. 17, 2007), available at http://judiciary.senate.gov/nominations/ElenaKagan/upload/Kagan-Question-13d-Part- 1.pdf. President Obama’s nominee for Assistant Attorney General for the DOJ’s Office of Legal Counsel, Dawn E. Johnsen, has written that the White Paper’s inherent power theory is “extreme and implausible.” Dawn E. Johnsen, What’s a President To Do? The Constitution In the Wake of Bush Administration Abuses, 88 Boston U. L. Rev. 395, 405 (2008). Johnsen adds: “The Bush administration’s ‘unitary executive’ and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights.”

In an amicus curiae brief filed in another TSP lawsuit, Associate Deputy Attorney General Donald B. Verrilli, Jr. (then co-chair of Jenner & Block’s appellate and Supreme Court practice) compellingly debunked the Bush administration’s inherent power theory, calling it “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans.” Brief for Amici Curiae Center for National Security Studies and the Constitution Project, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, Verrilli said that in the Steel Seizure Case “the Supreme Court established that Congress can, even during time of war, regulate the ‘inherent power’ of the President through duly enacted legislation. That is precisely what FISA does. In authorizing warrantless electronic surveillance in direct violation of FISA, the President is acting not only with power that is at its ‘lowest ebb,’ he is acting in violation of his constitutional duty to enforce the law as enacted by Congress,” Id. “Our Constitution was established to end – not enshrine – this kind of executive overreaching. . . . The NSA surveillance program upends the balance among the three
branches of government, and thereby threatens bedrock liberties the constitution and the Bill of Rights are designed to protect.” Id. at *14-15.

President Obama himself has acknowledged: “The Supreme Court has never held that the president has such powers.” Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE, Dec. 20, 2007. President Obama expressly rejected the inherent power theory when he stated: “Warrantless surveillance unconstitutional.” Id. (some citations omitted)

Much more:
http://emptywheel.firedoglake.com/2009/07/09/stunning-al-harmain-filing-shames-obama-shows-duplicity-of-officials/#more-4456

K & Rec.

[Wednesdays]

13. K&R

:kick:

[flyarm]

14. I posted from Emptywheel blog here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x6027134

[flyarm]

15. do read the full essay on Emptywheel and the comments!! all of them!eom

[No Elephants]

17. As always, we'll see what happens once it happens. Until then, one speculation is as

valid (or as invalid) as any other.