[Peace-discuss] Telecom victory? Maybe not.

[John W.]

Occasionally I need to be reminded of why I chose not to finish getting the 
law degree.  Thanks, Carl.


At 09:03 PM 11/17/2007, C. G. Estabrook wrote:

>         November 16, 2007
>         Immunity May Be Dead Anyway
>         by emptywheel
>
>As you've no doubt heard, yesterday Pat Leahy pulled some superb 
>parliamentary maneuvers to ensure that the SJC version of the FISA 
>amendment came out of committee without immunity for telecoms. He 
>basically just severed the part which permits the wiretapping from the 
>part that gives immunity. Voila!
>
>Unfortunately, it still seems likely that Harry Reid will let the SSCI 
>bill--the one we don't like--come to the floor of the Senate. Pat Leahy 
>pulled some nice maneuvers, but Reid has a few more aces in his hand. And 
>in any case, it may be utterly moot.
>
>When Arlen "Scottish Haggis" Specter has discussed his "compromise" on 
>immunity in the FISA amendment, he has said he thought the cases in CA 
>would be thrown out on State Secrets grounds anyway; his compromise (in 
>true haggis fashion) is really designed to save the telecoms money while 
>they're waiting for the courts to throw out the cases.
>
>Turns out they might not have to wait that long--and immunity may be moot 
>anyway. That's because the 9th Circuit, in a unanimous decision, threw 
>most of the most Kafkaesque illegal wiretap case out.
>
>     A federal appeals court dealt a near-fatal blow Friday to an Islamic 
> charity's lawsuit alleging federal investigators illegally wiretapped it, 
> saying a key piece of evidence the charity planned to use is a protected 
> state secret.
>
>     A top secret call log that the Treasury Department accidentally 
> turned over to the now-defunct U.S. arm of the Al-Haramain Islamic 
> Foundation's lawyers can't be used as evidence, the 9th U.S. Circuit 
> Court of Appeals ruled.
>
>     [snip]
>
>     The charity's lawyers voluntarily turned over the document to FBI 
> agents after it was given to them. A lower court ruled that the lawyers 
> couldn't use the actual document to support their lawsuit but could use 
> their memories of its contents to go forward.
>
>     [snip]
>
>     "Such an approach countenances a back door around the privilege and 
> would eviscerate the state secret itself," Judge M. Margaret McKeown 
> wrote for the unanimous three-judge panel.
>
>So basically, these guys have proof they were spied on, they've seen it, 
>but the government is requiring that they legally wash their minds of any 
>memory of that proof, so as to preserve State Secrets.
>
>The Appeals Court decision on the Hepting case is pending--it relies on 
>some other kinds of evidence--but it's a really amazing concept, this 
>State Secret thing. The government, of its own accord, gave out the 
>secret. But it expects individuals to be bound by it. Further, it expects 
>defendants to forgo attorney-client privilege, apparently, because there's 
>going to be no way of proving the government deliberately violated privilege.
>
>Swell.
>
>Time to think of some novel ways to force the government to stop spying 
>illegally. And it's probably time to write some restrictions on spying on 
>attorney-client privilege, too. Because the available options don't appear 
>like they're going to work.
>
>Update: Ryan Singel has updated his post on this with comments from the 
>plaintiff's lawyers that echo scribe's comments below.
>
>     The plaintiff's lawyer Jon Eisenberg tried to argue in August that 
> since his clients knew they were spied on, all the court had to do was to 
> decide whether spying inside the United States on Americans without 
> getting warrants violated the law.
>
>     Thomas Nelson, another attorney for the plaintiffs, said they feel 
> good about the ruling since the big issue -- whether the state secrets 
> privilege will kill their case -- remains alive.
>
>     While not ruling out a possible appeal for a hearing by a full panel 
> of 9th Circuit judges, Nelson says his initial reaction is not to appeal.
>
>     "I think we want to duke it out in lower court." Nelson said.
>
>     "My preliminary thinking is to do what the appeals court said and 
> take it back to [Federal District Court] Judge Vaughn Walker to see if 
> there is a common law privilege under the Foreign Intelligence 
> Surveillance Act," Nelson said.
>
>http://thenexthurrah.typepad.com/the_next_hurrah/2007/11/immunity-may-be.html#more