The Decider vs. the Waffler

"I decide what is law for the executive branch."

— George W. Bush, March 2004

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

—Barack Obama, April 2008

"If there had been a FISA warrant, you wouldn't be here and your principals would be going about the business of protecting our national security," Judge Vaughn Walker said to Anthony Coppolino, lead counsel from the Department of Justice (DOJ).

Walker, an unpredictable conservative appointed to the bench in 1989 by the first President Bush, had already ruled that the Foreign Intelligence Surveillance Act (FISA) imposes limits on the executive branch's gathering of foreign intelligence. One of those limits is a warrant from a FISA court in order to conduct electronic surveillance. Walker was now saying that federal agents lacked a warrant, which implied that he accepted plaintiffs' claims that they had been subject to illegal electronic surveillance.

In one sentence, the judge addressed the two issues the DOJ lawyers have refused to address since a Treasury Department employee inadvertently mailed top secret surveillance logs to an attorney representing Al-Haramain in 2004. Judge Walker will decide the second case in the nation to challenge the Bush administration's warrantless wiretapping program. The first lawsuit, filed in Michigan, was overturned on appeal because none of the plaintiffs, mostly journalists and professors, could actually prove that their government had spied on them. The Al-Haramain case is close to establishing that proof.

Lawyers from the Department of Justice have been clinging to the position that because Al-Haramain's claims are based on a top-secret document that plaintiffs' attorneys are not allowed to see, the plaintiffs have no case.

The judge seems to be signaling that the proof of surveillance the Al-Haramain lawyers gathered from the public record—which includes the transcript of a speech in which the deputy director of the FBI specifically referred to "surveillance" of the Oregon charity—is enough to establish standing.

THE DEFENSE NEVER RESTS—Other developments in the San Francisco courtroom on September 23 must have made the flight back to Washington seem even longer for Justice Department attorney Coppolino.

Judge Walker brought up the infamous March 2004 mugging of Attorney General John Ashcroft in a hospital bed, linking the Al-Haramain lawsuit to one of the more disturbing episodes in the Bush-Cheney presidency.

When Coppolino tried to impeach the quality of the non-classified evidence that lead plaintiffs' counsel Jon Eisenberg and his team submitted to the court, the judge corrected him, describing it as a "broad array of evidence."

When Coppolino said he would like submit another classified filing (one more attempt to correct previous statements made by the government), the judge turned to Eisenberg, who objected, saying he and the judge should both know if the Justice Department has perpetrated a "fraud on this court."

And when Coppolino argued that there is no proof that the National Security Agency and the FBI had gathered evidence on Al-Haramain through electronic surveillance, the judge confronted him with an exhibit that had been filed by Al-Haramain's attorneys: a redacted transcript of a separate incidence of surveillance of Soliman al-Buthi in 2003, in which al-Buthi is identified as "the Treasurer of AHF-OREGON." (It was al-Buthi, the Oregon charity's board member, and his two Washington, D.C., attorneys who allege they were subjects of illegal surveillance.)

After reading a dense passage that included phone numbers, fax numbers, and e-mail addresses, Judge Walker dryly observed that the sentence began with the phrase "al-Buthi was intercepted."
"That's electronic surveillance," he said to Coppolino.
UNITARY THEORY ON TRIAL—I have followed this lawsuit since it was filed in Portland, Oregon, because it presents a rare opportunity to redress the imbalance of power the Bush-Cheney administration created by acting on the theory of the unitary executive, which holds that in wartime the president has greatly expanded powers.

The "Terrorist Surveillance Program," which was fiercely defended by Vice President Dick Cheney, both ignored the Congress and bypassed the judiciary. It was, in fact, such an overreach that loyal members of the administration who were proponents of broad executive power finally said "no" after they were pushed too far by Bush and Cheney.

James B. Comey, the acting Attorney General while Attorney General Ashcroft was gravely ill, would later tell a Senate committee that on March 10, 2004, he left his double-parked car and security detail outside the George Washington University hospital and ran to Ashcroft's room to prevent White House Chief of Staff Andrew Card and then-White House Chief Counsel Alberto Gonzales from "taking advantage of a very sick man" and forcing Ashcroft to reauthorize the program.

The episode bears directly on the Al-Haramain lawsuit. Ashcroft and Acting AG Comey refused to reauthorize the surveillance program because the Justice Department's Office of Legal Counsel (OLC) concluded it was unlawful. In fact, the authorization had lapsed three weeks before the bedside showdown. The program was not only illegal, it was operating without Justice Department authorization for at least part of time the Oregon charity was under surveillance.

"I decide what is law for the executive branch," Bush told Comey in an Oval Office meeting the day after the confrontation at the hospital, according to the Washington Post's Barton Gellman. The president signed the reauthorization order himself, then backed down when he was informed that Ashcroft, Comey, FBI Director Robert Mueller, OLC Director Jack Goldsmith, FBI General Counsel Valerie Caproni and CIA General Counsel Scott Muller intended to resign if the program continued. The program was modified, then shelved in 2007.

The Al-Haramain lawsuit addresses something far larger than the defunct surveillance program. It asks a judge to rule on the most ambitious expansion of executive branch power since the presidency of Richard Nixon, who told interviewer David Frost: "When the president does it, that means it's not illegal."

"It's the presidential power issue," Eisenberg said to the judge. "That's the very heart of this case. May the president break the law in the name of national security? We're asking this court to say 'no.'"

In flouting FISA, Bush and Cheney declared themselves above the law. Congress passed the Foreign Intelligence Surveillance Act in 1978. The law requires the president, the attorney general, or the CIA to obtain a secret warrant from the Foreign Intelligence Surveillance court before putting any "American person" under surveillance. It even included a provision that allowed government agents to obtain a warrant 24 hours after surveillance begins, which in 2001 was extended to 72 hours.

And FISA warrants were as easy to obtain as concealed handgun permits in Texas. By the time the Bush administration violated the law in 2004, there had been 14,000 secret FISA warrant applications, of which 13,995 had been granted.

Federal Judge Royce Lamberth, who was the chief judge on the FISA court when the Bush administration began the warrantless surveillance program, told the Washington Post that after 9/11 the Congress would have voted to expand the law.

"We could have gone to Congress, hat in hand, the judicial branch and the executive branch together, and gotten any statutory change we wanted in those days, I felt like," Lamberth said. "But they wanted to demonstrate that the president's power was supreme."

AL-HARAMAIN V. OBAMA—Al-Haramain's warrantless surveillance lawsuit is one of the policy disasters Barack Obama's administration inherited from George W. Bush. But should the Obama administration be defending it?

Twice during the September 23 hearing, Anthony Coppolino said the positions he was defending were based on decisions made by the Bush administration—and now by the Obama administration. When I asked Coppolino which official in the Obama administration is making those decisions, he would only say "ultimately I work for the attorney general of the United States."

A source close to the lawsuit said that Douglas Letter, a holdover from the Bush-Cheney DOJ, is now in charge of the case. Letter wasn't in the courtroom for the Al-Haramain arguments. And the DOJ won't discuss his involvement in the Al-Haramain case.

Letter did, however, travel to California earlier, to defend the Bush administration's extraordinary rendition program before the Ninth Circuit appeals bench in San Francisco.More precisely, Doug Letter was defending the use of the state secrets doctrine to cloak the activities of Jeppesen DataPlan, a Boeing subsidiary that ACLU attorney Ben Wizner referred to as "the CIA's torture travel agents." Letter argued the case before the Ninth Circuit during the early months of the Obama administration.

The "secrets" that Letter was defending had already appeared on the front page of the New York Times, in Jane Mayer's work in the New Yorker, and in wire service reports. They involved secret detention, clandestine prisons, and torture. And in the case of German citizen Khalid El-Masri, the arrest, detention, and torture of the wrong man (assuming that torturing the right man is acceptable).

It is the same "state secrets" privilege that Anthony Coppolino has thus far successfully invoked to keep the document related to Al-Haramain's warrantless surveillance locked in a vault, although it was already seen by a dozen people, including a Washington Post reporter.

Eisenberg defines the problem as "presidential power," not George W. Bush and Dick Cheney's abuse of power. "This is the first time that it is Al-Haramain v. Obama," Eisenberg said in an interview. "There is now no doubt."

Why ask for an injunction against a program that no longer exists? "The program was discontinued in 2007, or so they say," Eisenberg said. "Our argument is that there is still threat that it can happen again."

And then there is the current administration. On the same day Eisenberg and Coppolino appeared in court in San Francisco, Attorney General Eric Holder issued new rules intended to end the abuse of the state secrets privilege. They are at best tepid reform that leaves the decision to invoke the state secrets privilege in the hands of the attorney general, just as it was in the Al-Haramain case.

I would never argue that the Al-Haramain plaintiffs should not have been monitored by the government. One of the affidavits their Washington attorneys submitted to the court describes phone calls to Washington in which Soliman al-Buthi mentioned Osama Bin Laden's sister-in-law and two clerics who shaped Bin Laden's thinking. Our intelligence agents would have failed us had they not intercepted, transcribed, and analyzed his phone calls or e-mail. There was a legal process to do all that and keep it classified.

The Al-Haramain case will be appealed, regardless of which side prevails. Ultimately the Supreme Court will determine if "the president's power is supreme."

Yet the ground is shifting even as the Obama administration digs in and defends George Bush's policies. In a separate case in which government lawyers lied about evidence they protected with the state secrets privilege, Judge Lamberth (who has left the FISA court) ruled that the privilege is compromised when the government lies about what it is trying to protect. In Congress, Vermont Senator Patrick Leahy and New York Congressman Jerrold Nadler, both members of Obama's party, are sponsoring the State Secret Protection Act of 2009. The bill requires judges to review the secret filings the government would use to dismiss lawsuits, rather than accepting the foresworn claims of government lawyers hiding behind the state secrets doctrine.

KEEPING STATE SECRETS—"It's but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials," warned the appeals court judge who ruled on the United States v. Reynolds state secrets case before it went to the Supreme Court in 1947. Judge Albert B. Maris, quoted in the New York Times' "Topics of the Times," questioned the blank check that would allow Department of Justice lawyers to withhold evidence in lawsuits.

Judges have some say in whether the government can be forced to unseal evidence. Yet since 1993 courts have only forced the government's hand in one in eight cases, according to Barry Siegel's Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets. By and large, the Justice Department has a blank check.

Attorney General Eric Holder promised to fix the state secrets problem; on September 23 he released new guidelines that are a transparent attempt to put a good face on a bad policy. Holder's new rules require the Justice Department "to be satisfied that there is strong evidentiary support" before approving the use of the state secrets privilege, to "commit" that the department will not allow use of the privilege to conceal wrongdoing or embarrassment, and to set up a review committee. A final hurdle has the attorney general signing off on all state secrets claims. (Nothing here considers how disgraced Bush Attorney General Alberto Gonzales would use this power.)

Jerrold Nadler's bill, H.R. 984, offers a legitimate fix. It defines a process for judges to review "secret" evidence in camera, brings attorneys from both sides of a dispute into the process, requires the head of an agency to explain the basis for withholding evidence, provides for special masters to review evidence, and allows a judge to order a government agency to produce "a non-privileged substitute" for any information withheld. Nadler's bill also would prohibit judges from dismissing a lawsuit until the plaintiffs have had adequate time to look for unclassified material to make their case. And it requires the attorney general to inform the chairs of the intelligence and judiciary committees in both houses of Congress when they use the privilege.

Twelve pages of clear and concise English divides the authority among the three branches of government and fixes the problem.

print article     email article