Court Rejects Challenge To Wiretap Program

The Bush administration's warrantless spy effort is protected by the 'state secrets' privilege, federal judges rule. The LA Times reports:

In rejecting a key element of a legal challenge to the government's warrantless wiretapping program, federal appellate judges on Friday demonstrated once again the willingness of U.S. courts to give the Bush administration considerable latitude in handling the war on terror.

The U.S. 9th Circuit Court of Appeals in San Francisco, by a 3-0 vote, barred an Islamic charity from using a confidential government document to prove that it had been illegally spied upon, agreeing with the administration that disclosure would reveal "state secrets."

The lawsuit, filed by Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency's spying endeavor, the Terrorist Surveillance Program, launched after the Sept. 11, 2001, terrorist attacks. The U.N. Security Council has declared that Al-Haramain, which operates in more than 50 countries, belongs to or is associated with Al Qaeda.

The suit was one of 50 legal challenges brought across the country after the program's existence was revealed in the New York Times.

Other courts have shown similar deference to the Bush administration on the state secrets privilege, which permits the government to bar disclosure in court of information if "there is a reasonable danger" it would affect national security.

But the ruling in this case was particularly striking because it came from a panel of three liberal jurists, all appointed by Democratic presidents.

Moreover, the charity, unlike other plaintiffs, says it has evidence of surveillance -- a call log from the National Security Agency that the government inadvertently turned over in another proceeding.

In the ruling, Judge M. Margaret McKeown wrote that the judges accepted "the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena."

Erwin Chemerinsky, a liberal constitutional law professor at Duke University law school, said the court showed "how much deference even a liberal panel of judges is willing to give the executive branch in situations like this, and I find that very troubling."

Doug Kmiec, a conservative constitutional law professor at Pepperdine law school, said "the opinion is consistent with" a ruling by the federal appeals court in Cincinnati earlier this year striking down a challenge to the surveillance filed by the American Civil Liberties Union.

He said the dual rulings indicated that "federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such."

The court's ruling was not an absolute victory for the government. McKeown rejected the Justice Department's argument that "the very subject matter of the litigation is a state secret."

That finding could prove important in numerous other cases in which the government contends that even considering legal challenges to warrantless wiretapping would endanger national security.

In addition, the 9th Circuit panel sent the case back to a lower court to consider another issue: whether the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. McKeown said that issue "remains central to Al-Haramain's ability to proceed with this lawsuit."

Georgetown University constitutional law professor David Cole said he thought Friday's ruling showed partial victories for both sides.

Indeed, lawyers for the government and for the charity said they were happy with the outcome.

"The 9th Circuit upheld the government's position that release of this information would undermine the government's intelligence capabilities and compromise national security," the Justice Department said.

Oakland attorney Jon Eisenberg, who argued for Al-Haramain before the 9th Circuit, said: "The government wants this case dead and gone. It is not. We are alive and kicking."

Eisenberg expressed optimism that his client would prevail under the Foreign Intelligence Surveillance Act, a statute enacted in the aftermath of revelations of illegal spying on civil rights and antiwar activists in the 1960s and '70s.

"That provision would be meaningless if the government could evade any such lawsuit merely by evoking the state secrets privilege," Eisenberg said.

The foundation for this court's ruling (naively) presumes is that the executive branch can be trusted. The one and only thing this administration has demonstrated that it is competent at is being deceptive and untrustworthy.

We have a broken legal system when (rightly) innocence must be presumed (but only for the executive branch), and any evidence of criminal activity is inadmissable (only for the executive branch) due to claims by the executive branch which can only be disproven with evidence that is unattainable because it's been ruled inadmissable.

Yossarian was moved very deeply by the absolute simplicity
of this clause of Catch-22 and let out a respectful whistle.
"That's some catch, that Catch-22," Yossarian observed.
"It's the best there is," Doc Daneeka agreed.

~'Catch 22' by Joseph Heller

White House to Give Senate Panel Surveillance Program Documents

The Washington Post reports:

The White House agreed yesterday to give Senate intelligence committee members and staff access to internal documents related to its domestic surveillance program in a bid to win Democratic lawmakers' support for the administration's version of an intelligence measure.

The move was meant in part to defuse a months-long clash between Congress and the Bush administration over access to legal memoranda and presidential decisions underpinning the Terrorist Surveillance Program, which allowed the government to eavesdrop without court warrants on communications between people in the United States and abroad when one of the parties is a terrorism-related suspect.

Some of the documents had been demanded by Senate Judiciary Committee members as a condition for considering the administration's nomination of former judge Michael B. Mukasey as the nation's 81st attorney general. Sen. Patrick J. Leahy (D-Vt.), the committee's chairman, dropped that condition weeks ago but said yesterday that he still wants to see the documents.

Leahy told reporters after a meeting with Mukasey yesterday that he nonetheless expects Mukasey "to be confirmed" after a nomination hearing today, at which Mukasey is to be escorted into the room by Leahy and the committee's ranking Republican, Sen. Arlen Specter (Pa.). Mukasey is to be formally introduced by Sens. Joseph I. Lieberman (I-Conn.) and Charles E. Schumer (D-N.Y.).

Schumer indicated after meeting separately with Mukasey yesterday that he expects the judge to promise to undertake a review of the department's legal justifications for the administration's counterterrorism policies, which are the subject of some of the documents made available to intelligence committee staff and members for review at the White House.

Mukasey has indicated that he strongly supports the administration's counterterrorism effort.

Committee member Dianne Feinstein (D-Calif.), who also sits on the Judiciary panel, said however that when one of her staff members reviewed the documents, "he wasn't impressed." She added that she was unsure whether the documents the staff member saw were exactly what Leahy was seeking.

Sen. Christopher S. Bond (Mo.), the intelligence committee's ranking Republican, was more positive. "We're getting the information I think we need."

But House Democrats, who plan to vote today on a bill that would restrict domestic surveillance powers more tightly than the administration wants, complained yesterday that they should have been permitted the same access.

"Although even these materials are far short of the information that Congress has requested for more than a year on this crucial subject, we are extremely disappointed that the available information is being withheld from the House," Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said in a letter yesterday to White House counsel Fred F. Fielding.

Besides trying to quiet congressional accusations of a coverup, the administration wants in particular to win support for a legal provision providing immunity for telecommunications companies that have been sued for violating privacy rights when they assisted the government's domestic surveillance effort.

White House spokesman Tony Fratto said that administration officials "routinely meet with members of Congress and their staffs to provide them with information they need when they are considering and drafting legislation." In this case, he said, members of the Senate intelligence panel "requested access to certain materials to assist their consideration" of relief for the companies.

In addition to seeking documents related to the surveillance program, Leahy has sought internal legal opinions related to torture issues involving terrorism suspects and testimony from White House advisers connected to the firing of nine U.S. attorneys last year.

Leahy said his questioning at the hearing today will be aimed at eliciting statements from Mukasey about the legality of torturing terrorism suspects and threats to the independence of federal prosecutors that impinge on their efforts to pursue cases regardless of political sensitivities. "How are you going to clean up this mess?" Leahy said he probably will ask Mukasey.

Mukasey has already sought to assure lawmakers in private that he will not let politics intrude on the department's decisions. "He will be light-years better than his predecessor," Leahy said, referring to former attorney general Alberto R. Gonzales, who resigned in late August after making a series of statements about the attorney firings and surveillance programs that were disputed by his former colleagues and lawmakers from both parties.

FBI Director's Notes Detail Visit to Ashcroft's Hospital Room

FBI Director Robert Mueller documents another meeting in which "the AG" claimed to have been "barred" from getting information about the eavesdropping program because of "strict White House secrecy rules."

For the NYTimes, David Johnston and Scott Shane report:

John Ashcroft was “barely articulate,” “feeble” and “clearly stressed” as he sat in a hospital room chair in March 2004 when top White House aides unsuccessfully tried to persuade him, as the Attorney General, to sign an extension for warrantless domestic eavesdropping on Americans, according to notes made by Robert S. Mueller III, the director of the F.B.I.

Mr. Mueller’s notes [.pdf] of his visit to Mr. Ashcroft’s hospital room provide another eyewitness account of the dramatic confrontation over the secret surveillance program. They confirm an account of the encounter given by James B. Comey, the former deputy attorney general, who testified before the Senate Judiciary Committee about it in May.

Mr. Mueller’s typed notes, which are undated, also reveal a series of meetings earlier and later that month between the F.B.I. director and other administration officials, including Mr. Comey, Alberto R. Gonzales, then White House Counsel and General Michael V. Hayden, then the director of the National Security Agency, which conducted the electronic monitoring program.

At one point in a meeting with Mr. Mueller, the notes show, Mr. Gonzales said that even he was “barred” from getting as much information as he wanted about the highly classified eavesdropping program, because of strict White House secrecy rules.

NYTimes reporters Johnston and Shane may have gotten this wrong, mistaking 'AG' to mean 'Alberto Gonzales,' for according to Mueller's notes, under '@1940':

The AG then reviewed for them the legal concerns relating to the program. The AG also told them that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

Mr. Mueller’s notes, which have been turned over to the House Judiciary Committee, were described by two officials who had reviewed them. The notes recount Mr. Mueller’s arrival at the hospital after Mr. Gonzales and Andrew H. Card Jr., then the White House chief of staff, had attempted to persuade Mr. Ashcroft to sign a presidential order reauthorizing the program. Mr. Comey, who was acting as attorney general during Mr. Ashcroft’s hospitalization, had declined to sign the reauthorization because he believed that part of the program was unlawful.

Mr. Mueller said he went to the hospital after receiving a phone call from Mr. Comey, arriving there at 7:40 p.m; he stayed until 8:20 pm. His notes said that Mr. Comey told him that Mr. Ashcroft, who had undergone gall bladder surgery the previous day, was in “no condition” to receive visitors.

Mr. Mueller’s notes were turned over to the committee with some of the entries deleted or heavily edited, including virtually all of Mr. Mueller’s notations about his White House meeting with President Bush on March 12, when the F.B.I. Director intervened to head off threatened resignations by himself, Mr. Ashcroft, Mr. Comey and a number of other Justice Department officials.

After speaking with Mr. Comey and Mr. Mueller, the president agreed to permit changes in the N.S.A. activities to satisfy the legal objections. Current and former government officials have said the legal dispute involved data mining, meaning computer searches of large volumes of electronic records of telephone calls and e-mail messages.

Appearing before the House Judiciary Committee on July 26, Mr. Mueller gave a sparse description of the hospital encounter that generally accorded with Mr. Comey’s account. But he declined to describe his conversation with Mr. Ashcroft in any detail.

In response to a question about the attorney general’s condition that night, he replied only that he knew Mr. Ashcroft “had gone through a difficult operation and was being closely monitored in the hospital.”

Pressed by committee Democrats for a fuller description of the scene, a seemingly reluctant Mr. Mueller would say only that the hospital visit was “out of the ordinary.”