Law & Order meets The X-Files: what happens when you sue George W Bush

This is perhaps the most intense, perplexing and intriguing legal tale I have read in a long time. I implore whoever (‘whomever’? I can’t tell from my Collins Dictionary for Writers & Editors. And Borders don’t have the Bill Bryson one, dammit!) of you are reading this to read Jon Eisenberg’s account of the background to the case of Al-Haramain Islamic Foundation Inc v Bush. (PDF of the judgment.)

But it’s kinda long, so if you can’t be bothered… here’s an outline of the best bits… which is also kinda long.

Illegal Surveillance

Eisenberg is one of the lawyers for the now defunct Islamic charity, and his narrative is about how the US government’s representatives have gone to bizarre extremes to stifle a legal challenge to Bush’s warrantless surveillance activities, which a US federal judge says is criminal, anyway:

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA — which means Bush’s warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear.

The legal battle has so far gone on for some 28 months of interlocutory proceedings because, in order to get the case up, the plaintiffs have to prove they have standing — ground or authority to sue — because they were the victims of the unlawful conduct being alleged in the suit.

In order to legally conduct electronic surveillance inside the U.S. for intelligence gathering, FISA requires law enforcement/surveillance officials to get a warrant.  President George W. Bush violated FISA requirements for nearly six years, starting shortly after 9/11, but the act actually makes those violations felonious and provides for civil recourse for the victims.

The story of how Al-Haramain’s lawyers negotiated the journey thus far to Judge Walker’s ruling — a team of seven lawyers that includes me — sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Doesn’t this feel like a John Grisham novel?  But then story starts to resemble tales by Le Carré or Tom Clancy, too.

The Document

Unlike other parties trying to sue Bush over illegal warrantless wiretapping, these plaintiffs have proof that they were wiretapped —

Our proof is a top-secret classified document, which the government accidentally gave to Al-Haramain’s lawyers in August of 2004. We call it “the Document.” It appeared in a stack of unclassified materials that the lawyers had requested from OFAC. Six weeks later, after the government realized its blunder, FBI agents personally visited each of the lawyers and made them return their copies of the Document …

I can’t publicly reveal what’s in the Document because, well, it’s a secret. I would be committing a crime — a violation of the Espionage Act of 1917 — if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys …

The Feds were so freaked out about the Document that they almost had a bit of a blue trying to get back the copy that had been filed with the court by the plaintiffs’ lawyers. Ultimately, the judge was allowed to access the Document while it must be kept under high level security, but the plaintiffs’ lawyers aren’t allowed to see it ever again.

Soon after the Document’s place of reposit was resolved, the government asked Judge King to throw out our lawsuit pursuant to the state secrets privilege, a tactic used aggressively by the Bush government. We opposed that request, arguing that the Document isn’t a secret any longer, since we and our clients have seen it. The government attorneys insisted that the Document is still a secret no matter who knows about it, and further insisted that the warrantless surveillance program itself remains secret — never mind that the New York Times revealed the program in December of 2005 and soon thereafter the president publicly admitted its existence.

The lawyers were directed to draft their arguments concerning the state secrets privilege by “filing secret affidavits describing the Document from memory“. Isn’t that ridiculous? But it got even stranger when Department of Justice attorneys filed two opening briefs in the 9th Circuit Appellate Court on the issue of whether the state secrets privilege required the lawsuit to be thrown out entirely:

One brief was publicly available, to which we would be allowed to file a publicly available responsive brief. The other was filed in secret, under seal, for the judge’s eyes only. The bad news for us was that we would not be permitted to see the government’s secret brief; the (sort of) good news was that we could file our own secret brief in response.

Rebutting arguments you’ve not been allowed to see is a talent that isn’t taught in law school. I consulted Kafka’s “The Trial,” looking for helpful tips, but found none. I tried guessing at what might be in the government’s secret brief and then hazarding a response in our own.

“Oh yeah,” say the Feds. “And another thing…”

Because the Feds were so worked up over the fact the plaintiffs’ lawyers were drafting submissions about the Document, a judge had ordered the parties to “see what you can work out”.  The lawyers agreed to what the Feds wanted, and they ended up

drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer — that is, under the auspices and control of our adversary in the legal case.

Anything they wrote down which contained classified information become “derivatively classified” and thus it would be unlawful for the lawyers to possess. Eisenberg says he “wondered whether this meant that the portion of my brain that remembers the Document is also “derivatively classified,” making its presence in my skull unlawful.”

But because of this “derivatively classified” business, all the old drafts produced in the drafting session (in “the San Francisco federal building … on a floor that was strangely deserted … in a small interior room lined with bookshelves that had been completely emptied, except for a few chairs, a large table, a dusty telephone, a laptop computer and a printer”) had to be securely shredded. The banana peel left from Eisenberg’s snack was left by the stack of drafts:

“Here’s everything, even the banana peel.”

Hogarty [the DOJ lawyer] said she would shred the drafts and the banana peel. (She may have been joking about the banana peel, but I couldn’t be sure.)

Also, DOJ officers wiped laptops which had been used to draft earlier submissions (i.e. the ones that weren’t written in the San Fran panopticon):

The situation grew darkly comic. They didn’t have a hammer, so they started debating how to smash the hard drive. I suggested they smack it against the corner of the table that was in the room. That didn’t do much. Hogarty then had an idea to put the thing on the floor and use a table leg on it. [Another officer] put down the hard drive, picked up the table and brought it down several times forcefully. The noise resounded, but the hard drive was impervious. One of the table legs became bent from the procedure. …

I found myself thinking of the Samsonite Gorilla, the TV commercial from the 1970s in which a gorilla stomps on a piece of luggage that just won’t break. I thought: “These people are entrusted with our national security?”

The the sanity of the lawyers arguing the case for the government might also have to be called into question…

What do we know? Really, what do really ever know? Is it what we think we know? No.

My favourite bit of the tale is about how DOJ attorney Thomas Bondy stood at the lectern before three judges of 9th Circuit Court of Appeals and “delivered a mind-boggling rebuttal to our argument that the surveillance of our clients was no longer a secret”:

“They don’t know,” Bondy said. “Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, ‘know,’ they don’t know. What they mean when they say that is that they — although they think or believe or claim they were surveilled, it’s possible they weren’t surveilled … When they say they know, what they mean by that, on their own terms, is that they don’t know.”

Bondy went on to argue “it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled.”

Judge McKeown: The world knows what they think they know, whatever that is that they know.

Bondy: Exactly. And that’s less than actually knowing whether it’s true.

Judge McKeown: Boy, we are really splitting the “knows.”

At this point Judge Michael Hawkins interjected: “Sounds like Donald Rumsfeld.”

Bondy: But your honor, let me be plain. If it’s entirely possible, and I’m not saying one way or the other, obviously —

Judge McKeown: Right, because you don’t yet know.

Bondy: It’s entirely possible —

Judge McKeown: And we can’t know.

Bondy: It’s entirely possible that everything they think they know, just to give one example, is completely false. It’s possible, or maybe it’s partly true.

And so on. If I’d been permitted a reply, I would have quoted from Lewis Carroll — not from “Alice’s Adventures in Wonderland,” but from his poem “Jabberwocky”: “Beware the jubjub bird, and shun the frumious Bandersnatch!“

The next chapter

The appellate court ruled that the Document’s accidental disclosure does not negate the state secrets privilege.  Public disclosure of information concerning the Document would still threaten national security if it were used in a law suit.  The judicial compromise of allowing the parties to file affidavits about the Document from memory was, determined to be an improper “back door around the privilege.” But the appellate court also made the an order that

Judge Walker [was] to decide whether FISA pre-empts the state secrets privilege in FISA litigation because of provisions in FISA for adjudicating claims under secure and confidential procedural conditions, which would allow our lawsuit to go forward.

On 3 July 2008, Judge Walker “concluded that FISA does indeed preempt the state secrets privilege.” He also addressed the key issue raised by the plaintiff’s lawsuit — the validity of the “unitary executive” theory — and said what they’d been waiting a long time to here:

The president does not have unbridled power to disregard federal statutory law in the name of national security. According to Judge Walker, “the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required.”

But the ruling also sends us back down the rabbit hole once again …

His Honour made a further ruling that because of the peculiar way in which the applicable FISA provisions are drafted, the plaintiffs are not allowed to use the Document to confirm that their clients were wiretapped until they can first make some sort of preliminary showing — using only non-classified information — of “enough specifics” indicating that the clients were wiretapped — a burden Judge Walker suggested might be “insurmountable”:

According to Walker, “if reports are to be believed,” we will have “little difficulty” establishing standing once we are able to use the Document. But we can’t use it yet. At this point, the Document alone just gives us what Walker called “actual but not useful notice” of our clients’ unlawful surveillance. We need something more, from non-classified information, for that “actual” notice to become “useful.”

In other words, we must show that our clients were surveilled before we can show that our clients were surveilled. The irony in this is not lost on Judge Walker, who commented that FISA is “not user-friendly.”

Isn’t that just astounding? Some of the legal bullshit I see everyday is just unbelievably… bullshit; this is just another reason why I struggle to cope in my chosen professional field.

However, some of my faith about that mythical class of being called “good lawyers” has been someone restored.

read more | digg story

The L-Word

Before my Politics and Media exam yesterday* I ran into this American Study Abroad student whom I accidently snogged last month (it turned out that he’d postal-voted for Shrub, thus making it an Accident**). When he learned my exam was for a unit run by our Illustrious Collage of Arts Foudation Dean who also happens to be a Big Leftie, my American friend kindly offered me some, uh, sage advice to help me pass.

“Be liberal,” he said. “Simon will love it.”

If I were hispanic, I would’ve done that don-tchu-no-giv-me-noh-ahtitood neck rotation thing*** and said “You don’t have to tell me to be liberal, honey, it runs in my veins.” But I’m not, so I just laughed nervously at a further generalisation he made about my lecturer, politely wished him well for his exam and excused myself. Back. Away. From the Republican. Slowly. His ignorance could be contaigious and might be set off by sudden movements.

Anyway, the way this guy mentioned being ‘liberal’ got me thinking. It was like he thought being ‘liberal’ was contrary to the way human beings would/should normally operate and must only be feigned when writing an exam set by some weirdo commie bastard who may or may not have worked at a terrorist training camp in Cuba.

It was like being liberal was dirty.

What the hell is with some people’s problem with liberalism, huh? Why is it bad to think that everyone deserves a chance to access decent education, healthcare, reasonable living and working conditions and a fair? Why is it wrong to support civilised diplomacy rather than reckless aggression, fairer income re-distribution, services which benefit larger parts of the community and not just those who can afford it, equal pay for equal work, the right of women to choose what happens to their bodies, the right of people to choose their faith coupled with an obligation to not impose their beliefs on others, the right of grown adults to decide whom they want to marry, and the sustainable use of natural resources?

Please, just let me know where I’ve got it wrong, because it’s killing me.

Now, if I am totally and utterly convinced by flawless and brilliant reasoning (something other than If It’s Not Right It’s Wrong, please) that I’m in the wrong camp and I capitulate and repent for the error of my nasty liberal ways, what should I do? How should I act? What am I supposed to believe in? (Heaven would forbid me, as a new Tory, to think for myself.) The Democratic Underground author I’ve linked to above points out that

many conservatives I have met usually espouse one or more programs and policies that are mainly self serving – including the reduction or elimination of taxes, protection of the status quo and states rights irrespective of societal inequities, “my” religious convictions – not yours, prosperity at any cost, business interests – not the public’s, the right to own assault weapons, a powerful military rather than universal public health and education, or finally America first – the U.N. never! In a more vernacular sense, “I’ve got mine, Jack, to hell with you.”

Don’t Americans love themselves from being the land of liberty? Well then get with the facts, dammit, and celebrate liberalism. Because it means sticking up for everyone, not just yourself. Because it means giving a fuck.

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* The exam was a treat, and I think I did pretty well. For the question on blogging, I quoted John Quiggin, Tim Dunlop and Robert Corr, and for the question on the media’s role in Iraq I mentioned stuff I’d blogged about last week. I knew I started doing this for a reason!

** Note to self: interrogate all potential snoggees about their political viewpoints beforehand, regardless of cuteness.

*** That would be rotation on the y-axis, cf the chick in The Exorcist. I can’t think of a better way to describe it right now.

PS — More on the Shrub election: The Election is Over. The Fight is not.

A Declaration of Dependence

To the citizens of the United States of America

In the light of your failure to elect a proper President of the USA and thus to govern yourselves, we hereby give notice of the revocation of your independence, effective today. Her Sovereign Majesty Queen Elizabeth II will resume monarchial duties over all states, commonwealths and other territories. Except Utah, which she does not fancy. Your new Prime Minister (The Right Honorable Tony Blair, MP for the 97.85% of you who have until now been unaware that there is a world outside your borders) will appoint a Minister for America without the need for further elections. Congress and the Senate will be disbanded.

A questionnaire will be circulated next year to determine whether any of you noticed.

To aid in the transition to a British Crown Dependency, the following rules are introduced with immediate effect:

1. You should look up “revocation” in the Oxford English Dictionary. Then look up “aluminum.” Check the pronunciation guide. You will be amazed at just how wrongly you have been pronouncing it. The letter ‘U’ will be reinstated in words such as ‘favor’ and ‘neighbor,’ skipping the letter ‘U’ is nothing more than laziness on your part. Likewise, you will learn to spell ‘doughnut’ without skipping half the letters. You will end your love affair with the letter ‘Z’ (pronounced ‘zed’ not ‘zee’) and the suffix “is” will be replaced by the suffix “ise”. You will learn that the suffix ‘burgh’ is pronounced ‘burra’ e.g. Edinburgh. You are welcome to respell Pittsburgh as ‘Pittsberg’ if you can’t cope with correct pronunciation. Generally, you should raise your vocabulary to acceptable levels. Look up “vocabulary”. Using the same twenty seven words interspersed with filler noises such as “like” and “you know” is an unacceptable and inefficient form of communication. Look up “interspersed”. There will be no more ‘bleeps’ in the Jerry Springer show. If you’re not old enough to cope with bad language then you shouldn’t have chat shows. When you learn to develop your vocabulary then you won’t have to use bad language as often.

On your behalf. The Microsoft spell-checker will be adjusted to take account of the reinstated letter ‘u’ and the elimination of “-ize”.

You should learn to distinguish the English and Australian accents. It really isn’t that hard. English accents are not limited to Cockney, upper-class twit or Mancunian (Daphne in Frasier). You will also have to learn how to understand regional accents – Scottish dramas such as “Taggart” will no longer be broadcast with subtitles. While we’re talking about regions, you must learn that there is no such place as Devonshire in England. The name of the county is “Devon”. If you persist in calling it Devonshire, all American States will become “shires” >e.g. Texasshire, Floridashire, Louisianashire.

Hollywood will be required occasionally to cast English actors as the good guys. Hollywood will be required to cast English actors to play English characters. British sit-coms such as “Men Behaving Badly” or “Red Dwarf” will not be re-cast and watered down for a wishy-washy American audience who can’t cope with the humour of occasional political incorrectness.

You should relearn your original national anthem, “God Save The Queen”, but only after fully carrying out task 1. We would not want you to get confused and give up half way through.

You should stop playing American “football”. There is only one kind of football. What you refer to as American “football” is not a very good game. The 2.15% of you who are aware that there is a world outside your borders may have noticed that no one else plays “American” football. You will no longer be allowed to play it, and should instead play proper football. Initially, it would be best if you played with the girls. It is a difficult game. Those of you brave enough will, in time, be allowed to play rugby (which is similar to American “football”, but does not involve stopping for a rest every twenty seconds or wearing full kevlar body armour like nancies). We are hoping to get together at least a US rugby sevens side by 2005. You should stop playing baseball. It is not reasonable to host an event called the ‘World Series’ for a game which is not played outside of America. Since only 2.15% of you are aware that there is a world beyond your borders, your error is understandable. Instead of baseball, you will be allowed to play a girls’ game called “rounders” which is baseball without fancy team strip, oversized gloves, collector cards or hotdogs.

You should declare war on Quebec and France, using nuclear weapons if they give you any merde. “Merde” is French for “Shit”. The 97.85% of you who were not aware that there is a world outside your borders should count yourselves lucky. The Russians have never been the bad guys. You will no longer be allowed to own or carry guns. You will no longer be allowed to own or carry anything more dangerous in public than a vegetable peeler. Because we don’t believe you are sensible enough to handle potentially dangerous items, you will require a permit if you wish to carry a vegetable peeler in public.

July 4th is no longer a public holiday. November 2th will be a new national holiday, but only in England. It will be called “Indecisive Day”.

All American cars are hereby banned. They are crap and it is for your own good. When we show you German cars, you will understand what we mean. All road intersections will be replaced with roundabouts. You will start driving on the left with immediate effect. At the same time, you will go metric with immediate effect and without the benefit of conversion tables. Roundabouts and metrication will help you understand the British sense of humour.

You will learn to make real chips. Those things you call French fries are not real chips. Fries aren’t even French, they are Belgian though 97.85% of you (including the guy who discovered fries while in Europe) are not aware of a country called Belgium. Those things you insist on calling potato chips are properly called “crisps”. Real chips are thick cut and fried in animal fat. The traditional accompaniment to chips is beer which should be served warm and flat. Waitresses will be trained to be more aggressive with customers.

As a sign of penance, 5 grams of sea salt per cup will be added to all tea made within the Commonwealth of Massachusetts, this quantity to be doubled for tea made within the city of Boston itself.

The cold tasteless stuff you insist on calling beer is not actually beer at all, it is lager. From November 1st only proper British Bitter will be referred to as “beer”, and European brews of known and accepted provenance will be referred to as “Lager”. The substances formerly known as “American Beer” will henceforth be referred to as “Near-Frozen Knat’s Urine”, with the exception of the product of the American Budweiser company whose product will be referred to as “Weak Near-Frozen Knat’s Urine”. This will allow true Budweiser (as manufactured for the last 1000 years in Pilsen, Czech Republic) to be sold without risk of confusion.

From December 1st the UK will harmonise petrol (or “Gasoline” as you will be permitted to keep calling it until April 1st 2005) prices with the former USA. The UK will harmonise its prices to those of the former USA and the Former USA will, in return, adopt UK petrol prices (roughly $6/US gallon – get used to it).

You will learn to resolve personal issues without using guns, lawyers or therapists. The fact that you need so many lawyers and therapists shows that you’re not adult enough to be independent. Guns should only be handled by adults. If you’re not adult enough to sort things out without suing someone or speaking to a therapist then you’re not grown up enough to handle a gun.

Please tell us who killed JFK. It’s been driving us crazy.

Tax collectors from Her Majesty’s Government will be with you shortly to ensure the acquisition of all revenues due (backdated to 1776).

Thank you for your cooperation.

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email forward via Annabel; thanks bubs!

Fallujah War Crimes Caught on Camera

From Reuters/ABC.net.au:

The US military has begun an investigation into possible war crimes after a television pool report by US network NBC showed a Marine shooting dead a wounded and unarmed Iraqi in a Fallujah mosque.

If I may offer a suggestion for Dubya’s banner makers: Misson Fucked.*

The Power of the Media

I did a unit this semester called Setting the Agenda: Politics and the Media.** Taking it was half of the inspiration for starting up this blog (the other half came from Rob Corr, who, after the last couple of weeks, is officially my blogging idol). The unit really made me question that grand old idea of the Fourth Estate as ‘an independent and impartial watch dog of government and other powerful interests.’ When looking at the mainstream media’s response to 9/11 and hearing about the antics of the Murdochs and Alan Joneses of the world, most of the time the mass media just comes across as a lap dog (excellent, from now on I will only refer to Murdoch as Tinkerbell**).

When things like this show up, though, it gives you just a little bit of hope. Hope that maybe the megamedia has realised they spent immediate post 9/11 period and the lead up to Iraq 03-?? acting as the US Government Stenography Service and now understand the crucial role they have to play in protecting us from the tyranny of the majority. Another entry on hope/faith later (not).

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* As pointed out by GT, my most appropriate typo ever! 🙂

** Therefore this entry counts as exam study, woo.

*** Paris Hilton’s chihuahua.