Obama Administration: Wiretapping Legal Challenge Must Die

[Fireweed247]

SAN FRANCISCO -- The Obama administration urged a federal judge on Friday to stay enforcement of a ruling favoring the plaintiffs in a lawsuit challenging President George W. Bush's warrantless eavesdropping program.

Justice Department special counsel Anthony Coppolino told U.S. District Judge Vaughn Walker during a 60-minute hearing here that the appellate courts should review his Jan. 5 decision allowing classified evidence into the case, a position the Obama administration took in court documents the day before.

Without the classified evidence, Coppolino said, the government wins the case by default, and two American lawyers who claimed they were unlawfully spied upon can't pursue their lawsuit.

"If we are right about this, the case gets dismissed," Coppolino said.

http://blog.wired.com/27bstroke6/2009/01/obama-administ...

Why is Obama protecting the Bush Administration?

I think we should go to every freeper board and tell them that Obama has the power to wiretap them, and they will join in our efforts to put an end to this.

[truedelphi]

1. Obama, although mesmerizing and adorable, is a Corporatist

A kinder gentler Corporatist, but not someone deeply in favor of the Constitution.

If he had been for the Constitution, he would never have voted for FISA, or for the constitutionally challenged BailOut Bill.

[OregonBlue]

13. Before everyone jumps to conclusions, go read the KOS article about this:

But doesn't that mean "Obama Sides With Bush in Spy Case?

Not exactly.

The January 5th ruling that the "state secrets" privilege does not exist in FISA-related cases was huge. This is not the same as the "executive privilege" we heard about in the Libby case, where the president asserts that all conversations with aides are protected because the president needs to have candid advice. The "state secrets" privilege covers classified information.
We can debate whether the Bush Administration classified too much (I think they did). We can debate whether the Obama Administration should or will declassify a lot of that information (I think they should and hope they will). But I hope we can agree that classified information must be protected unless and until it is declassified. A lot of it is classified for very good reasons, and we shouldn't throw the nation's baby out with Bush's bathwater.
The specific issue here is not whether or how the Obama DOJ will defend the Al-Haramain case. In fact, the January 23rd memorandum says not one word about whether or how the Obama Administration will treat that case, except that the Obama DOJ does want the trial court to stay proceedings until the Ninth Circuit hear the appeal of the trial court's January 5th order eliminating the "state secrets" privilege in FISA cases.
In legalese, that's called an interlocutory appeal, an appeal that is heard "between pleadings" to the trial court.

Lots more in this article. Obama may or may not agree with Bush. This is not about agreeing but about the process.

http://www.dailykos.com/story/2009/1/24/4422/57021/124/...

[truedelphi]

20. Thank you for your kind and also informative response.

Bear with my cynicism - I once lived in a demcoracy that was a grand place to be,

Then it was hijacked away from me for eight years. I am going to take a lot of convincing about this obama guy and it may not be all about him personally at all but how after my living in the Up is Down world of the Bush/Cheney regime, I no longer trust anyone.

[Fireweed247]

24. sounded like damage control to me

and the Kossacks are a bunch of shills...

Interesting it wasn't discussed that this is the very case that Bush tried to have thrown out in his last act in office.

[OregonBlue]

31. They have not asked that the case be thrown out. They have asked for a stay until the 9th circuit

rules on another aspect of the case. let's wait a bit and see.

[Fireweed247]

34. Without this evidence, the case is over.

"But I hope we can agree that classified information must be protected unless and until it is declassified. A lot of it is classified for very good reasons, and we shouldn't throw the nation's baby out with Bush's bathwater."

Do you think this is why Bush wanted the case thrown out?

It looks to me like we finally got Bush on this one, and they know it. It was a small miracle that these lawyers got a hold of this proof. There is finally a chance for some real accountability that doesn't involve the US Congress taking action.

The Obama Administration should get out of the way.

[OregonBlue]

35. I to want to see Bush and Cheney behind bars. However, I am not going to believe that based on what

I have read so far that he is in favor of warrantless wiretapping or that he is "just like Bush". That's all I'm saying. And yes, I do believe that there are some state secrets that should not be revealed. I haven't seen the information therefore I cannot judge whether or not it truly a matter of national security.

[spag68]

40. wiretapping and classified material

So you mean that you are willing to believe that the bushies are correct in thinking that they can classify anything they want? It is bullshit to think that a country that intends to do the right thing needs to have state secrets. In any case it will soon be impossible to have secrets in this increasingly computerized world.

[OregonBlue]

44. No, that's not what I'm saying.

[JDPriestly]

64. Spag 68, the point is that no secrets exist in this case because

the government sent the "secret" documents to the plaintiffs in this case. That is why they are suing. It is no secret that they were wiretapped. It is known. Yes, the government should be able to keep legitimate secrets. But if the government lets the cat out of the bag all by itself, if it reveals its secrets and thereby admits that it violated the law, then the government should not be able to avoid the consequences of its violations of law by claiming that the evidence that it violated the law is secret.

Under the logic that the government should be able to avoid the lawsuit by claiming the evidence (that it gave the Plaintiffs) proving its liability is secret would pretty much destroy our Fourth Amendment rights. It is bad enough that for practical purposes a defendant's only recourse for police violation of certain constitutional rights in the course of an investigation is to exclude the evidence gained by the violation from trial (except, except, except when the exclusionary rule does not apply), to permit the government to eavesdrop in violation of FISA and then bar the evidence of the eavesdropping on the ground that the eavesdropping is a state secret makes a joke of the Constitution. The Obama administration is downright wrong on this one in my opinion.

[Fireweed247]

69. needs to be repeated

"But if the government lets the cat out of the bag all by itself, if it reveals its secrets and thereby admits that it violated the law, then the government should not be able to avoid the consequences of its violations of law by claiming that the evidence that it violated the law is secret."

[tomp]

66. exactly right! state secrets =something to hide=illegal activity. nt

[Fireweed247]

52. He is not "just like Bush" but he is covering up his crimes

Obama did vote to make illegal wiretapping legal retroactively...which you can't actually do. The Constitution states that it is illegal and until they pass an ammendment to the Constitution it is still illegal. If Obama continues to do this, he is breaking the law. It is time for Obama to get on the right side of this issue and this Country.

[JDPriestly]

63. Thank you, Fireweed. The argument in Daily Kos sounds so impressive.

But it is just confusing people with a lot of fancy talk about legal procedures.

The judge should be permitted to review these papers. There is nothing in them that hasn't already been seen by the Plaintiffs. No state secrets will be divulged. The fundamental issue regarding real secrets can be decided if and when it arises in a case in which it arises appropriately in a case in which real secrets exist that have not yet been made public or revealed to the party opposing the government.

Allowing this case to proceed without delay may be the only way we will ever find out about the illegal surveillance. Exposing the crimes of the Bush family is more important than hiding these non-secrets (that have already been disclosed) from the judge. The judge \will review them in camera (in his private chambers) in any event. He or she does not have to make the contents of the papers public.

Once again, that these papers exist is known, so their existence is not a state secret. In fact, I believe that the content of the papers is also known.

The important thing here is that the people of the United States be given full disclosure about the scope of the Bush regime's illegal surveillance. Our most fundamental rights are at stake here. I favor exposing to the public the truth about the extreme paranoia, excessive partisanship and secrecy of the Republicans by allowing this case to go forward. The Bush regime snooped on everything and everyone, and, I personally believe, mostly for political advantage, not really so much for national security.

I like to keep the current security threat in perspective. After all, our nation survived the Revolutionary War, the War of 1812 (in which do not forget, D.C. was invaded), Indian wars, pirates and the bloody insurrection that was the Civil War. The terrorists are a relatively mild threat compared to what our ancestors faced in early America. We are a strong, strong, united people. We really have nothing to fear but fear itself. No, Bushies, America nees freedom first. "Security" will follow.

[Fireweed247]

68. Thank you!

Your post is a breath of fresh air. The daily Kos post stopped everyone from discussing this with it's lengthy excuse but we need to be raising awareness about this.

I just hope the judge refuses to listen to the Obama Administration.

[acmavm]

72. And a 'lot' of stuff was classifed for no other purpose to hide illegalities.

Which is it?

[Radical Activist]

54. sounds like someone will believe anything they read

if it supports their cynical attitude about Obama.

[Fireweed247]

55. that's what I though about the Kos folks

I don't have a cynical attitude about Obama. I have been loving the Obama family since his first day in office, but this is not right.

We should not blindly follow Obama, we still must fight for what is right.

[chill_wind]

29. A pity many won't bother.

The EFF doesn't have any alarming headlines, either. I'll wait for them to weigh in, for sure.

http://www.eff.org/cases/al-haramain

[OregonBlue]

32. Thanks for the link. I think this is so far more about process than about covering up.

Guess we'll see. I assume it is possible that there really are national security secrets involved and perhaps we don't want them revealed. I doubt Obama believes in warrantless spying on Americans.

[chill_wind]

41. And here's the actual pdf document that was filed:

The case is now named Al-Haramain v. Obama (07-cv-109-VRW) (MDL06-cv-1791-VRW)

(Why shouldn't he make sure this doesn't get legally screwed up for all of history?)

We should know more soon enough.

"The Government also requests that the Court shorten the time for plaintiffs to respond to
the Government’s motion because the January 5 Order provides for immediate proceedings and
deadlines that, in the Government’s view, present issues of irreparable harm and thus necessitate
consideration of the stay motion as soon as possible. See Stay Mem. (Dkt. 60). We propose that
the plaintiffs’ respond to the motion by Tuesday, January 27, 2009, that the Government reply by
Friday, January 30, 2009, and that if the Court deems a hearing is necessary, it be set for
Thursday, February 5, 2009."

http://blog.wired.com/27bstroke6/files/alharamainobama....

[goforit]

59. Bla bla bla bla....There is no more privacy among citizens. It is executive VIOLATION.

[Fireweed247]

70. yes

and I don't want Obama to do it either.

[tomp]

65. against "classified" information here.

give an an example, hypothetical or otherwise, of something that needs to be classified.

[Autumn]

2. No surprise there

and I really don't believe it will end.

[Diane R]

3. I'm not understanding this. Would this have anything to do with Holder's confirmation being held up?

[EFerrari]

9. Do you mean, is this part of some quid pro quo? Maybe. n/t

[Diane R]

19. No. I meant perhaps this action was taken by old Bush appointees, not the Obama administration.

[EFerrari]

28. It's possible. We'll know soon enough n/t

[tan guera]

37. Yes, see kos article below

[lumberjack_jeff]

4. Aside from the issue of wiretaps, should Obama help someone suing the government?

I mean, I really don't know.

[truedelphi]

18. Yes and no. Process has to be followed as the person responding to me

A couple posts above this kindly pointed out.

But if the Bush administration is guilty of spying on us, and guilty of torture, and war criminality, then I believe that Obama should be all for it. If Bush and Cheney robbed a bank, no succeeding President would overlook that crime, or enable the criminals rather than those prosecuting the crime.

Lying us into war is much bigger than robbing a bank.

[lumberjack_jeff]

39. It's one thing to seek justice against the perpetrators.

It's something else to volunteer to pay reparations on their behalf.

[Politicalboi]

45. Yes he should

James Baker defended the Saudi's against 9/11. Not that they needed defending. It was Bush's way to ensure they wouldn't get the blame. Since the "terrorist" were suppose to be Saudi's.

[lumberjack_jeff]

49. "supposed to be"?

I'm not getting your meaning.

[Fireweed247]

53. He certainly should not step in and try to influence a judge who has already made a good decision

This court case has major potential as evidenced by Bush trying to have it closed in his last moments in office.

All Obama needs to do is just stay out of the way.

[Stinky The Clown]

5. Oh man .......

[lostnotforgotten]

6. That's It - Start Impeachment Hearings Immediately!

eom

[leftchick]

7. wow! his first of many Friday news dumps.

this fucking sucks! He is protecting the corporations and the war criminals. Who could have predicted?

[EFerrari]

8. Is he protecting the Bush Administration? Who was spied on for all these years?

[tan guera]

12. According to Keith and Rachel

and the interviews with Tice, all Americans have been spied on, with the journalists being especially targeted.

Holding up the Holder confirmation has something to do with a statute of limitations on when the prosecutions of war crimes can begin. I'm fuzzy on details, but there is no statute of limitation on murder so maybe that applies only in this country.

[EFerrari]

15. The Republicans used their time in office to try to shore up their failing party

by tampering with elections, political prosecutions, vote suppression and so on. It wouldn't surprise me if they had a lot of material on Democrats as well as on journalists. It seems more likely to me that Obama is protecting Democrats than BushCo.

[Fireweed247]

56. Obama should have said something about the recent revelations on Olberman

He should not be covering for the Bush Administration, he should be helping expose what they have been up to as far as illegally wiretapping Americans.

[cali]

10. not acceptable

time to make a big deal out of this.

[tan guera]

14. Agree!

[Fireweed247]

57. yes!

What do we do to let Obama know this is unacceptable?

[Fireweed247]

58. oops

dupe

[libodem]

11. Well I just hope that

the Chaney and Bush homes are hooked up to the listening post. They don't deserve one once of privacy or protection.

[Blue_In_AK]

16. I don't like this.

By the way, I like your new name, MartyL.

[Fireweed247]

21. Thanks!

nice closeup!

The only positives I see in this is that there is some real fear that the Bush Administration will be held accountable and the SF judge doesn't seem all that willing to back down.

[Fireweed247]

17. This is the same case that Bush tried to have thrown out in his final act

In Final Legal Act, Bush Appeals Spy Ruling
http://blog.wired.com/27bstroke6/2009/01/in-final-legal...
With a mere 64 minutes left in its last full day in office, the Bush administration asked a federal judge to stay enforcement of a ruling that would keep alive a lawsuit which tests whether the president can bypass the Congress and eavesdrop on Americans without warrants.

The request was lodged with U.S. District Judge Vaughn Walker of San Francisco at 10:56 p.m. EST on the Martin Luther King Jr. holiday -- about 13 hours before the inauguration of President Barack Obama. The filing was among now former President George W. Bush's final legal acts in office.

[G_j]

22. guess he didn'i have to worry after all

[kentuck]

23. Why should the Democrats not be permitted to do the same as Republicans?

and eavesdrop on the Republicans in the Senate and House, etc?

[Fireweed247]

25. I dunno, I was sort of hoping we could return to following the nation's laws

you know, the Constitution and all that....

[terisan]

26. Because it is wrong and some of us are opposed to spying dictators.

[kentuck]

62. Sorry...I forgot the sarcasm

<.>

[Fireweed247]

71. sorry, I usually catch that.

[varelse]

27. Does not look good at first read

On the bright side, the Federal judge isn't prepared to take this lying down:

But Judge Walker said he wanted more briefing on the matter. He refused to immediately stay enforcement of his order, which requires the government to allow the plaintiffs' attorneys, and the court, to review a highly-classified document that purportedly shows that the lawyers for a now-defunct Saudi charity had their telephone conversations wiretapped without warrants in 2004.

[OregonBlue]

33. Go read the KOS in-depth review of this. It may not be about warrantless spying so much as about

the process and getting to what really happened. This was from the AP and they are no friend of Obama or the left.

http://www.dailykos.com/story/2009/1/24/4422/57021/124/...

[tan guera]

36. another kos article about FISA and Holder and statute of limitations

http://www.dailykos.com/storyonly/2009/1/23/16592/1381/...

[OregonBlue]

38. yeah, I read it and they are just disgusting. Love the idea of going after Specter and

Cornyn for corruption. Political interference in the judicial process!!

[varelse]

43. Well I read it

I'm hoping that the trial court's January 5th ruling will be upheld.

On January 5th, the trial court denied the motion to dismiss. But the trial court went beyond that, ruling that the "state secrets" privilege does not exist in FISA-related cases, because FISA supersedes that privilege. On January 19th, the Bush DOJ filed a petition to stay the trial proceedings pending the resolution of that appeal in the Ninth Circuit Court of Appeals.

Under the circumstances, it would make sense to stay the proceedings - especially if you expected the ruling to be reversed at some point down the road (and it looks like it could be a LONG road).

Or maybe I didn't understand what I read. Please feel free to enlighten me further if you feel that is the case here.

Thanks for the link.

[MadHound]

30. No surprise here,

Obama has already stated that repealing these wiretapping powers is a low priority. Besides, the Democrats have been chomping at the bit to play with all these new expanded Executive Branch powers.

Also notice Obama hasn't repudiated the Bushco gift of being able to declare anybody an enemy combatant, thus stripping them of their Constitutional rights.

Change, yeah, right. Cosmetic change, but that may be about it. Meanwhile the two party/same corporate master system of government rolls on

[leftstreet]

42. So Obama is the first freely elected Unitary Executive

[varelse]

46. I know that it is impossible to prove a negative

I'm hoping someone, somewhere on DU can find evidence to the contrary for this statement:

Also notice Obama hasn't repudiated the Bushco gift of being able to declare anybody an enemy combatant, thus stripping them of their Constitutional rights.

Could you please provide some corroboration for this one?

Obama has already stated that repealing these wiretapping powers is a low priority. Besides, the Democrats have been chomping at the bit to play with all these new expanded Executive Branch powers.

Where are you seeing evidence of this?

[tan guera]

48. His VISA vote spoke volumns

http://www.salon.com/opinion/greenwald/2008/07/09/fisa_...

[varelse]

51. I wasn't happy about his vote on FISA either

I suppose I should have been more precise in my request, though. What I really was requesting is some backup for this statement:

the Democrats have been chomping at the bit to play with all these new expanded Executive Branch powers.

I hope that's not true, and I have not seen any evidence that our President's actions or decisions to date support that accusation.

[MadHound]

60. I caught that on Maddow's show

Last Thursday evening I believe. Should be able to view it on her website.

[varelse]

47. Why is Obama protecting the Bush Administration?

This doesn't look much like a protective move to me.

[chill_wind]

50. Thanks for linking that. n/t

[Fireweed247]

61. There is a difference...

between "I can release your records" and asking the court to throw out evidence that is needed to convict Bush of illegal wiretapping.

[guruoo]

67. Chill, people. It's just a stay, not a dissmal. n/t