Court Rejects Obama Bid to Stop Wiretapping Suit

[kpete]

Source: New York Times

Court Rejects Obama Bid to Stop Wiretapping Suit
By THE ASSOCIATED PRESS
Published: February 27, 2009

Filed at 3:34 p.m. ET

WASHINGTON (AP) -- The Obama administration has lost its argument that the state secrets privilege is a good enough reason to stop a lawsuit over the government's warrantless wiretapping program.

A federal appeals court in San Francisco has rejected the Justice Department's request for an emergency stay. The Obama administration, like the Bush administration before it, claimed that national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.

The case was brought by the Al-Haramain Islamic Foundation, a defunct charity with a chapter in Oregon.

The appeals court decision is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.

Read more: http://www.nytimes.com/aponline/2009/02/27/washington/AP-Warrantless-Wiretaps.html#articleBodyLink

---

here is the brief:
http://static1.firedoglake.com/28/files//2009/02/090226-al-haramainsbrief2-26-09.pdf

[grannie4peace]

1. that's good!

[L. Coyote]

31. if not much, much better than good. It may reveal Bush's crimes and bring indictments

[inna]

94. except that the Supremes will almost certainly side with the administration on this one. nt

[Better Believe It]

2. Good! "States Secrets"??? This is not Great Britain nor should it be Bushland

[jwirr]

3. Did Obama really want to win this one? It seems like a good move

for our side.

[MNDemNY]

6. No , his justice dept. was just arguing it to hide their true intent: socialism.

:spank: :banghead: :sarcasm:

[alfredo]

39. By making the effort he got the gov spooks on his side. Spying is a

necessary evil, and in some cases just evil. No president can even appear to be out to get them.

The agencies are very tribal.

[No Elephants]

46. Please step away from the Kool-Aid. Obama wanted to stop the suit. Thank heaven for good judges.

[alfredo]

69. I was within that community.

Nobody fucked with us, not even the president. You want us to go deaf and blind? Like I said, the intelligence community is very tribal. As I remember, if any suit messed with us, we'd have a bad case of sunspots. It wouldn't take very long for that suit to back off. Nobody fucked with us. They needed us more than we needed them.

The president didn't even have the need to know what I did. If he approached my station, I could have told him to back off. Nobody fucks with the mission.

Obama didn't have much choice but to back the intelligence community. He needs them more than they need him.

[No Elephants]

77. Whatever. Obama is taking Bush's side in that suit bc Obama wants the same result in the lawsuit

that Bush wanted.

[inna]

78. thanks for your perspective

... at least it provides a rational explanation of Obama's seemingly unexplainable attempts to block the suit.

[alfredo]

79. After all these years, my fellow

(former) agents are still a tight group. We are in daily contact and have been for the past forty years. We still resent the suits and are still loyal to the mission.

It's not the power of the president, it is what he does with the power. I saw big changes between LBJ and Nixon. It was Nixon that caused me to leave. I didn't like either one, but Nixon was wrong wrong wrong.

[Prisoner_Number_Six]

80. Even if "the mission" is illegal, unconstitutional, and

is counter to the interests of the citizens of America?

MY mission was Echelon (my Air Force group worked under the NSA) and I say fuck all that shit. Some missions simply need to be stood down and dismantled because they're WRONG.

[alfredo]

81. This was before Echelon. One of our more conservative members did go

back in, but most of us are not happy with what has become of the NSA. ASA - 65-69

[AZ Criminal JD]

83. Secret agent man!

[alfredo]

103. No, just did a boring job in a beautiful place with a group of guys

that liked to drink, and get laid. Nothing glamorous there. What we did isn't anymore, technology changed, the world moved on and we weren't in demand anymore.

[AZ Criminal JD]

82. A person claiming to be a spook on the internet

How unusual! What number was your classification status? Quick now.

[alfredo]

98. 05h20

I became public because of the declassification of the USS Liberty murders.

Going public has enabled me to meet others who did the same. There's several here on DU, and all good Democrats. The ASA was disbanded in the mid seventies, and our numbers are thinning.

[Uncle Joe]

85. Then the tribe must have been pissed when those champions of state secrets

outed a covert CIA Agent (and by extension her company) all because her husband felt the American People had the right to know when we were being lied to in order to send our men and women off to die in war.

I would also say President Obama or any President needs the American People more than that administration needs the intelligence community.

We weren't deaf and blind before Bush started unnecessarily breaking the law by wiretapping the American People en mass, we were just stupid with the information we did have.

I believe we should have a strong intelligence community, but that doesn't mean unconditionally.

How can the American People defend their Constitutional Rights if they can't even expose the transgressions against those rights in a court of law?

This is simply abuse and possible atrocity without acknowledging it, where is the limit on that?

If there is no limit, by logical extension there is no Constitution.

[alfredo]

99. I'm just saying loyalty is strong and Obama will have to gain their trust.

All new leaders have to give to get. Ultimately, prosecution of wrong doing is not in his hands, it is in the prosecutors. Civil suits don't really do much to punish what was done by our agencies. Civil suits usually follow criminal trials, not the other way around.

[Zhade]

91. How very fascist of you.

NT!

[alfredo]

101. I was trying to show how strong the tribalism was when I worked

for them. It was also part of the reason I got out. I had to give up too much of myself. It wasn't what I wanted to be or how I wanted to live. I would have gotten into a lot of trouble because of very strong anti authoritarian streak.



I love the guys I worked with. They will be my brothers till the day I died.

[No Elephants]

45. If he did not want to win on this, he would not have filed it.

[Titonwan]

63. I think your right!

He "made the effort" (ugh ugh) to appease the mouth breathers (huff huff), but "failed" (awwwwww), so the suit can proceed (yea!) and then arrest Bush (yippeeeee!). Isn't learning fun!

[atreides1]

4. Good

This is good news especially when the original case for the state secrets privilege was based on the USAF trying to cover their asses because of bad maintenance on a B-29.

How many other times has this excuse been used not to protect national security, but to cover up a f**k up?

[Solly Mack]

5. GOOD!

[slay]

7. AWESOME!

Obama is on the wrong side of this one. Big time.

[dixiegrrrrl]

17. Pres. Obama is actually on the right side. Let me explain.

The lawsuit has existed for some time prior to change of Presidents.
Bush wanted to block the suit, for damn good reason.
The US Government ( via the Justice Dept.) has to defend lawsuits against the government, like it or not.
It is often important to distinguish between our government roles and responsibilities.
President Obama is 1/3 of the Government.

We want the lawsuit to continue.
The Justice Dept. will lose, and then President Obama has an "out" , in that he did not block the necessary legal progress, but a bad law by a previous Admin. was allowed to be overturned.

Obama is developing a pattern of allowing the law, and/or the people, to "move" him in certain directions, I have noticed It is a smart move.

[biopowertoday]

24. .The decision by the three-judge appeals panel is a setback for the new Obama administration

..... as it adopts some of the same positions on national security and secrecy as the Bush administration...............



Your response gave me the laugh of the day.

[closeupready]

86. Thank you. Sometimes, people, things really are what they appear to be.

:rofl:

[frog92969]

25. Thank you, that makes perfect sense

I think too many of us are used to having a "checkers player" in the WH.

:popcorn:

[SteveG]

26. Bush wasn't even a checkers player

hell, he couldn't win at tic tac toe without cheating........

[frog92969]

28. I was being generous to chimpy, I know

I think his game was hide n seek.

[ArcticFox]

36. Government's Brief wasn't too forceful

I agree - it looks like the President is trying to get the court to flesh out the right findings.

Much of the brief seemed to tell the court that there's no controlling decision - basically, "you can rule either way." It does not read as if the lawyers really thought they had much of a chance at winning. It illustrates a procedure whereby the plaintiffs' lawyers are to receive security clearance to view the supposedly secret information, and feeds the court the clear argument that the executive branch is not the final arbiter of what is secret.

One interesting point - the Government is actually trying to speed up the plaintiffs' access to the "secret" information. Page 2, lines 17-20 of the Government's opposition brief: "classified information subject to the Government's privilege assertion is subject to disclosure after February 13, 2009 - not months later as the plaintiffs contend." Sounds like the plaintiffs could be looking it over already.

[dixiegrrrrl]

37. I must disclose...

but have no citation.

Somewhere close to the Inaugueration, I read an article citing Obama's telling a story about FDR,
the story being that when FDR wanted to do something he would get opposition flack over,
he made sure that he could point to the PEOPLE's support of it as an excuse to do it.
Obama's emphasis was that FDR often stayed in the background but controlled outcomes.

In this case our Pres. is walking a tightrope between being "the Administration"
(thus the defendant) of a really bad precedent. So he has to "lose" without appearing to
roll over too easily.

IMHO, anyway.

[No Elephants]

48. Please. You do not file something with a court hoping that you lose. For one thing,

that violates Rule 11 of the federal courts. For another thing, it is way too dangerous because you never know how the court will rule.

Understand this: Obama asked the court to dismiss the case bc he wanted the case dismissed, period.

[ArcticFox]

88. Rule 11 is a red herring

The "hope" of the party does not come into a rule 11 analysis. Giving the court information to help it make the proper ruling is a very proper purpose. Perhaps Obama knew it was a losing cause.

Are you trying to say he had no right to be sure the court considered all the arguments? That would lead to bad precedent. If the government would withdraw, there would be no precedent to block a future B#*!.

Rule 11 (b) is set forth below. It basically Says you need to believe your claims are warranted; you do not need to believe there's more than a small chance you'll win.

Rule 11 (b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

[tomp]

67. your argument that he HAS TO defend the government is specious.

he doesn't have to do any such thing. what he has to do is uphold and defend the constitution. it is mere tradition that succeeding governments defend their predecessors' crimes. it helps to enable new crimes.

[shanti]

105. wow

you're one of the few that sees this. President O is nobody's fool.

[No Elephants]

50. Filing something that you do not really want to win violates Rule 11 of the

Federal Rules of Civil Procedure.

[No Elephants]

52. You don't file an optional brief in order to lose.

[The Hope Mobile]

38. The only problem with this is that it makes people think

that he has something to hide too.

[No Elephants]

49. No, the "only" problem is that he's protecting Bush and the Imperial Pesidency at the

expense of the Constitution of the United States amd the citizens of the United States.

[The Hope Mobile]

71. did you read the explanation upthread?

That's exactly what I'm saying it looks like, however, if the explanation of his method and motivation is accurate then I'm happy with his motive but still question the method since it gives a different impression than his intent.

[No Elephants]

47. Obama had no way of knowing the Court would rule against the D of J. If

Obama had actually wanted the lawsuit to continue, he would not have filed a pleading asking the court to stop the lawsuit. Obama filed that pleading, or directed the AG so to do, because Obama wanted to protect the power of the Imperial Presidency. It has nothing to do with wanting a bad law overturned. If you want a bad law overturned, you ask the court to overturn it, not to throw out a lawsuit.

The Obama had a plan within a plan within a plan argument every time something goes well DESPITE Obama's effort to make it go the other way is starting to scare me.

[shanti]

104. exactly

now if people will just TRUST him! i know it's hard after the last 8 years, but he's worth trusting.

[alfredo]

106. Thank you. You hit on the legal points I hit on the inner baseball of dealing

with the intelligence community.

[NRaleighLiberal]

8. Very cool! Bring THIS on, too! NT

[acmavm]

9. Good? That's FABULOUS!

[pleah]

10. GREAT!

:applause:

[CountAllVotes]

11. good to see the federal appeals court doing their job!

:thumbsup: federal appeals court. Don't let Pres. Obama do this to We the People!!

:kick:

[ejbr]

12. EXCELLENT news! n/t

[The Hope Mobile]

13. GREAT!!! But why is Obama fighting this??

I really do not understand. I know someone will say he's complicit but I find that hard to believe - maybe I just don't want to believe it but it just doesn't add up to me.

[Renew Deal]

14. I doubt "the Obama administration" is shedding a tear.

They are just doing their jobs.

[No Elephants]

55. On what do you base that? All his positions since his vote in July 2008 are consistent with Bush's

wiretapping actions. After his July vote, he said that he had no choice, but he recently affirmed his support of retroactive immunity for telcos.

I am amazed, and somewhat frightened, by excusing Obama for his clear actions.

[inna]

89. me too. nt

[Politicalboi]

15. These suits should

Follow Bush and his cronies and they should be sued personally.

[liberalsince1968]

16. GOOD. I cannot believe Obama is following in Bush's footsteps on this.

[PassingFair]

18. GREAT NEWS!

Light it UP! Let's see what those bastards
were up to!

[Kurovski]

19. K&R. Sorry President Obama, you're on the wrong side of history with this one.

[Vincardog]

21. My hope is O had to argue this way; but he did not have to argue this well.

[biopowertoday]

23. What ever could be the reason to side with Bush on this case??

[SteveG]

27. This way the NeoCons cannot argue that Obama thwarted

the justice systems by just dropping the suit. By going this route, if the courts allow the suit to proceed and then find against the Bush law, then no other President will have a leg to stand on in trying to use the "states secrets" argument in cases like this.

[biopowertoday]

32. No, you are off base. You are saying Obama did it so the repugs

can not cry. That would be stupid of him and I do not believe that to be the case.

[Vincardog]

41. Why would it be stupid of him? If he is honor bound not to do anything to diminish the power of the

presidency why couldn't he let the court diminish the power of the of the presidency?

[biopowertoday]

61. Bush grabed the power, No you say it is OK for Obama to keep it!! you are WRONG.

[Vincardog]

74. Why couldn't he let the COURT diminish the power of the of the presidency?

Maybe he has to make the claim so the court can rule it BS.

[No Elephants]

56. You're saying that Obama raised the states secret defense to make sure that no

President can raise the state secrets defense to a lawsuit. Am I understanding that correctly? If I am, my only comment is HUH?

[SteveG]

65. He is leaving it up to the court

And I think that the court will knock down the use of State Secrets as a legitimate reason to prevent a case going to trial. That way the precedent is set.

[No Elephants]

75. Obama is not "leaving" it up to the court. It was up to the court as soon as the plaintiff

sued Bush. Obama is taking Bush's side when he did not have to. Please stop making believe that Obama is doing anything other than fighting for the Imperial Presidency in this case.

[Imagevision]

107. Americans couldn't handle the truth about Bushco, >enter 'National Security

[No Elephants]

51. I don't know that Obama had to file anything at all.

[TEmperorHasNoClothes]

84. that's what I was also thinking,,,

Obama and bush are night and day on our our rights as citizens....

[Fireweed247]

43. I agree- what the hell is Obama doing?

Clinton covered up Bush Sr. crimes and paved the way for Jr with his media deregulation etc. I no longer trust Obama and we better start preparing for JEB!

[No Elephants]

57. Maybe we'd better start preparing for Obama. That seems the more immediate issue and I was not

prepared for a lot of the things he's done since the election. I know people say he is exactly as his campaign indicated, but, candidly that is a crock.

[Fireweed247]

87. exactly- for starters he talked of CHANGE!

then he used all the same damn overused Dems we've all had enough of in his cabinet, and even kept some Republicans...to run the Pentagon :grr:

[biopowertoday]

20. Good news.

[salib]

22. Well, the real indication of where Obama stands will be in the Attorney's General response

If they believe in the rule of law then they will proceed accordingly. Let's watch.

[No Elephants]

53. The NYT article in the thread header says that the government intends to keep

fighting. Quote:

"A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay in a case involving a defunct Islamic charity.

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security"

[MasonJar]

29. The Obama administration could have stood on principle and been

just where it is today. But, no, they took the BUSHISTA route and are now rightfully upbraided. Good for the COURT.

[katandmoon]

30. YESSSSSSSSSSSS

[RUMMYisFROSTED]

33. The 9th Circuit(iIrc) has been keeping the dogs at bay.

[midnight]

34. Thank you, thank you, and thank you.

States secrets privledge was never, never, never intended to be used as a shield to protect against crimes.

FISA -- a law written back in 1978 in the wake of Watergate that ensured the government had both the tools it needed to defend the country and a process in place for judicial review to put checks on executive authority.

Most agree that this law needs to be modernized, as it has been many times over the years. But this time, the president is asking Congress to do something much more: to shield the telecoms from any judicial review of their actions. He wants Congress to declare spying without a warrant both constitutional and necessary to defend this country.

It is neither.

That is why I have done everything I can to stop retroactive immunity from being included in the FISA bill. As written, this bill does not say, "Trust the American people." It does not say, "Trust the courts and judges and juries to come to just decisions" about what happened at the telecoms. Rather, retroactive immunity sends this message:

"Trust me" -- a message that comes straight from the mouth of President Bush. I would never take "trust me" for an answer, not even in the best of times. Not even from a president on Mount Rushmore. http://www.huffingtonpost.com/chris-dodd/opponents-of-retroactive_b_111198.html

[robinlynne]

35. gggggggggggggggggggreat!

[bleever]

40. Most excellent.

I'm guessing this was actually anticipated by the Obama administration, and that they were depending on the courts to do what courts do.

Hey, a guy can dream, right?

[No Elephants]

58. Your guess is that Obama sided with Bush hoping to lose? If so, Obama has violated

Rule 11 of the federal courts and is liable to the plaintiffs. Not only that, but only a moran files a brief hoping a court will rule against his or her arguments. You can never count on that.

[Supersedeas]

42. looks like Marc Rich is not the only man that Eric Holder works for

[lamp_shade]

44. Smart move by Obama admin. See Post #17.

[No Elephants]

59. Please see Post #54.

[No Elephants]

54. Thank God for good judges. Initially, I thought the scariest thing about this case was that

Obama was siding with Dummya. After reading this thread, I've changed my mind. The "Obama meant to lose this" mentality is the scariest thing.

Obama is NOT fighting plaintiff appellees with the intent of losing the case.

Among many other things: (1) that violates Rule 11 of the federal courts and is punishable fy fines; and (2) you DO NOT, repeat DO NOT file something hoping that the court will rule against your position because you can never predict how a court can rule, even if your argument is lousy.

Obama voted for FISA in July 2008. At that time, he said that he had no choice and would make everything right when he became President. However, ALL his actions since becoming President affirm that vote, including his support of Bush's position in this case.

PLEASE step away from the damn Kool Aid and stop this "Obama meant it to go the opposite of what he said he wanted" stuff. Not only does it not make sense, bbut it's downright creepy.

[biopowertoday]

62. I saw the bizzare way of thinking upthread. I was simply

astounded!!

[No Elephants]

64. I've seen it before on other threads and it is rampant in other fora, like

Presidential Discussion. But the claim that Obama actually waged a court fight for the purpose of losing it is actually making my skin crawl.

[biopowertoday]

73. :-(

[freemarketer6]

60. Excellent! Nice to see there are still some people in here who

understand that right and wrong still must triumph over the seemingly proper.

[tomp]

66. so much for our constitutional scholar in the white house.

this was a major piece of obama bullshit.

[panzerfaust]

68. Ah yes. The New Broom

... sweeping out corruption, and ringing in the era of transparent government. Not.

For anyone who thinks that the fundamental nature of a given government can be changed for the BETTER, i suggest a long weekend spent watching the British series "Yes, Minister" followed by "Yes, Prime Minister" (and if still not convinced then continue with "House of Cards").

Governments, all governments, slowly become ever more corrupt and controlling over time, until swept away by revolution: Then the process begins all over again. In our own case, I anticipate another actual revolution in this country within the next 2-3 generations. In the interval, we will continue to lose civil liberties to the evermore suffocating State, which seeks only to retain power.

Now, I am glad that we won; for, as I am always saying, I prefer the illusion of democracy provided by Democrats, to the overt Fascism evident under Republicans. I simply recognize that it is an illusion.

I see the movers-and-shakers of both parties to be self-similar. I see they are primarily motivated by the drive for power, for access to the wealth of the nation simply in order to use it for person gain. Additionally, I believe that the vast faceless bureaucracy of our, of any, government, is driven by a consuming desire for control over the lives of the rest of us.

This drive for power, for control, is the natural state of government - no more to be unexpected than that cats kill birds.

Many, even I will say the majority, of the restrictions of civil liberties and rights engineered by the previous administration, will be defended, if not extended, by the new.

[inna]

92. i agree with a lot of what you said, but....

... i want to hope/believe that you're wrong re. the last sentence:

"Many, even I will say the majority, of the restrictions of civil liberties and rights engineered by the previous administration, will be defended, if not extended, by the new."

[flyarm]

70. Obama DOJ Signals It Will Continue To Fight For Bush Invocation Of "State Secrets" Doctrine

Obama DOJ Signals It Will Continue To Fight For Bush Invocation Of "State Secrets" Doctrine
http://www.talkleft.com/story/2009/2/28/12755/2372

Obama DOJ Signals It Will Continue To Fight For Bush Invocation Of "State Secrets" Doctrine

Via Greenwald, the Obama Justice Department signals it will go to the Supreme Court to defend the Bush Administration's invocation of the "state secrets" privilege in the Jeppesen rendition case. The AP reports:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government's warrantless wiretapping program. A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay in a case involving a defunct Islamic charity.

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security.

[inna]

93. holy shit. what is Obama's motivation??

the Supremes will side with the administration, i'm almost certain.

[midnight]

97. The Supremes. Sounds like a music group.

[Klimmer777]

72. Good! And this is why they should . . .

What is possible; what do they do; and how evil domestic spying on US citizens is. Please see this detailed link with many resources:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3760934#3761123

[No Elephants]

76. You think that it is good that Obama is taking Bush's side in this lawsuit?

[Zhade]

90. Awesome! Obama was WRONG on this.

NT!

[Beetwasher]

95. Does Everyone Realize That OBAMA IS NOT THE ATTORNEY ON THIS CASE????

Obama had nothing to do with the decision to try to stop this lawsuit. This case was an ongoing case before he was President. The attorney's assigned to the case make the decisions and it would be HIGHLY inappropriate for Obama to insert himself into the case by telling them what to do. They are SUPPOSED to act independently and DEFEND the gov't against lawsuits. If Obama told them to stand down or to drop their opposition or fired them, he would be GUILTY of politicizing DOJ.

Obama has to have a hands off approach to this and let it work it's way through the courts and let the attorney's assigned to the case do their job, independently of him.

I'm very happy w/ the judges decision to allow the case to go forward, I'm also happy that Obama is NOT inserting himself into this case and politicizing the DOJ.

[Paulie]

96. Agreed!

And I'm very happy we'll have case law ON THE BOOKS, for today and the future. :cheers:

[Imagevision]

100. Personally? - Obama doesn't want it known what laws Bushco broke because

the American people wouldn't be able to handle it - then turning it into a real national security issue.

[Imagevision]

102. The American people should know the truth - this isn't 1930...!