"Mind-Boggling" DOJ Lawyers Threaten To "Physically Remove" Critical Document In Torture Case

[kpete]

Obama DOJ Defies Federal Judge
Despite Ninth Circuit Decision, Lawyers Refuse to Release Document in Wiretapping Case

..............

On Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”

Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court.

Realizing this, the Justice Department lawyers on Friday wrote: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”

In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.

more at:
http://washingtonindependent.com/31944/obama-doj-defies-federal-judge

[rfranklin]

1. Uh....why exactly is Obama's DOJ covering for the Bush junta?

I really don't get it.

[Tangerine LaBamba]

5. It's pretty far-reaching,

but they're trying to preserve the sanctity of the concept of Executive Privilege. The previous "administration" did such damage to it that now the Obama people are looking like scoundrels, when, if you consider this in strict Constitutional terms, they're just doing what they have to do.

It sucks. Like the vile people who terrorized us for eight years, this filthy kind of situation isn't good for anyone. The White House now is backed into an ugly corner of Chimpy Fucknuts' making. I understand it, but I fucking hate it. I imagine President Obama does, too.

[jaxx]

10. That's how I heard it too.

To protect the executive powers. Too bad he is having to protect bush, but that's the way it is.

[EmilyAnne]

20. Aren't these Bush's appointees? I am not saying that simply to defend Obama, though it would be

nice (understatement) to discover that our new and popular president isn't behind such BS.

I remember a lot of segments on the Young Turks about the inevitability about this precise thing. He referred to them as a sort of sleeper cell within the Obama administration. Appointments to the DOJ are for life, just like Supreme Court justices. It makes sense that if there was any way that Bush could make appointments that would continue to cover for any war crimes, he would do it. Filling the DOJ with neo-cons is a perfect way to do it.

I really don't get it either, rfranklin. If what I just wrote is actually true, that is a ridiculous loophole to our system of checks and balances and should be changed.

[GeorgeGist]

24. Actually you do get it ...

just can't accept the fact that Obama's at best misguided ... and at worst complicit in America's greatest crime against humanity:

GREED.

[villager]

2. More and more, this is shaping up to be "worst moment so far," for the Obama Admin.

n/t

[Fireweed247]

18. yes- WHAT the FUCK is he doing?

This is our chance to hold Bush accountable, all Obama has to do is...nothing! Why the fuck is he getting in the way?

This is the same case Bush tried to have thrown out in his last hours in office, he might have had a good reason for that....but Obama has no fucking excuse and he is not playing chess. Someone needs to demand some real answers here....paging Helen Thomas....

[ChairmanAgnostic]

3. When does secrecy damage a democracy?

when it is used as a bludgeon against individuals, rather than as a tool to protect the greater good of all.

I have no problems about secrecy regarding means and methods, especially when we are talking about human intelligence assets.

But, to automatically throw up the veil of National Security, our democracy becomes damaged each and every time.

[The Stranger]

4. They must be hiding something unbelievably, extraordinarily, utterly, catastrophically bad.

There is no other explanation. This sort of over reaching behavior by the Government reflects more likely on something that it has done and must conceal, rather than on what anyone else has done or could do.

There is no other explanation.

[havocmom]

6. seems likely

[conscious evolution]

7. I think you may be right

The only other explanation is that Obama is also as crooked as bushco.

[seemslikeadream]

8. catastrophically bad.

yep

[stillcool]

9. I'm not sure how to read the 'interpetations'...

in this article. The government requesting that the Court stay proceedings while it considers whether to appeal the decision to allow the Defense access to classified documents sounds kind of normal, with a new administration. I wish I knew as much about as much as other people do.

[gratuitous]

15. Not in and of itself

Remember, the government already accidentally disclosed the document to the defense. The smoking gun is apparently confirmation that the government illegally eavesdropped on the defendant. The government's case is predicated on the assumption that every scrap of evidence they present in court was legally obtained, and totally in accordance with Fourth Amendment protections for citizens against illegal searches and seizures.

Apparently, that's not quite the case, and at least some of the government's evidence was obtained through illegal means. Under the Exclusionary Rule (as it used to be interpreted), that means that illegally-obtained evidence and any evidence developed through it, is excluded from consideration by the court. The Supreme Court recently ruled that illegally-obtained evidence, if it was obtained illegally because of an honest mistake (whoops, we just happened to tap your phone, listen in, make tapes, and present them as evidence) can still be admitted into evidence.

It seems that the concept of Executive Privilege needs some judicial circumscribing, especially after the out-of-control orgy of the Bush administration in concealing even workaday functions of the office of the president as protected by an extra-constitutional executive privilege.

[The Stranger]

16. If the writer's interpretation is correct, that the U.S. attorney is threatening physically to seize

the document from the court's file, then this has to be far, far more than an illegal wiretap and fruits of the poisonous tree.

[jtrockville]

23. Geeze I thought we already knew the worst of it.

Illegally wiretaps.
TORTURE.

I'm almost afraid to wonder how much WORSE it can be.

[Uben]

11. Oops! We made a thousand copies!

....and spread them all over the United States. Find em!

If I were the judge!

[Elidor]

12. Greenwald and Marcy Wheeler have been focused on this lately

According to Obama, only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind. Therefore, the President has the unilateral, unchallengeable power to prevent any judicial challenges to his actions by simply declaring that the relevant evidence is a secret and refusing to turn it over to a court, even if ordered to do so. That's the argument which the Obama DOJ is now aggressively advancing -- all in order to block any judicial adjudication of Bush's now-dormant NSA program.

It was exactly these theories -- and this behavior -- that led to eight years of accusations of an "imperial presidency" and a "lawless administration" and the like. Anyone remember that?

<snip>

But -- after a few symbolic (and potentially important) decrees in the first week, which I praised at the time -- the Obama administration's approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn't yet done enough. It's the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.

http://www.salon.com/opinion/greenwald/2009/03/02/executive_power/index.html

And Marcy Wheeler's Friday post on the subject is here:
http://emptywheel.firedoglake.com/2009/02/27/obamas-response-to-the-al-haramain-smack-down-cheneyesque-reasoning/

[marshall]

13. Where's Sandy Berger when you need him?

He knows how to handle these kinds of things quietly.

[spanone]

14. are these doj lawyers from the bu$h* adm???

[EmilyAnne]

21. Exactly what I was thinking. I think Cenk (Young Turks) was warning his viewers about these Bush

appointees, referring to them as a "sleeper cell" in the Obama administration. Just like Supreme Court justices, their positions are for life. It seems that this is a loophole in the checks and balances system.

[spanone]

25. i doubt they changed lawyers in the middle of a court case....

[chill_wind]

28. The answer is YES. At least 3 of them.

"Significantly (and I'll return to this), three of the four people who submitted new declarations on Friday night contributed to the May 12, 2006 filing: Anthony Coppolino (who was and still is the lead defense attorney in this case), Andrea Gacki (then working as a DOJ trial attorney focused on security issues and now serves as some sort of counsel for the OFAC), and John Hackett (who was and still is DNI's Director of Information Management Office, meaning he's in charge of keeping ODNI's secrets). Given that these three people have submitted new declarations (along with a new declaration from NSA), it suggests something about either the superseding materials or the unclassified declaration was inaccurate."

http://emptywheel.firedoglake.com/2009/03/01/some-clues-to-what-inaccurate-information-bush-provided-in-al-haramain/

A little more about their pickle here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5165901#top

[Peace Patriot]

17. Interesting language: the Government vs. the Court. They are BOTH "the government."

I don't know if this is usual. Probably it is. But it just struck me as odd. Our government consists of three EQUAL branches of government: the executive, the legislative and the judicial. For one branch to call itself "the Government" is inaccurate. And for one branch to bully another, equal branch--for instance, as the FBI did, when it invaded the offices of Congressman Jefferson inside the Capitol building, a big no-no in the Constitution (as the FBI is executive branch), about which there was a big flap--is unseemly and unconstitutional.

I do hope we see the equality and equal powers of the legislative and judicial branches of our Government come roaring back, in a new "rule of law" era. It is extremely dangerous to have such a lopsided executive branch writing its own laws, massively hiding big budget items, using 'national security' to cover up information that should be made public--both fairly innocuous information, and info that has nothing to do with "national security" and everything to do with executive branch crimes.

The excruciating bind that Obama may be in, is that supporters of the vastly criminal regime that just got ousted will use any new openness to harass, defame, slander and destroy the new "open" administration. And the other part of the bind may be that a deal was made, behind closed doors, at an extrajudicial "table" (i.e., the "table" Pelosi was referring to, with "Impeachment is off the table") granting immunity from impeachment and prosecution to the Bushwhack principles (and possibly to a few of their designated "made men"), in exchange for not nuking Iran, and for leaving peacefully when the time came (a deal that included getting rid of Rumsfeld). To be permitted to be elected president (note: do you know where your vote is?), Obama had to agree to this deal. His administration cannot prosecute them; therefore, they must try to prevent the disclosure of their most prosecutable crimes.

[Fireweed247]

19. Error: You've already recommended that thread.

c'mon people- give this the Recs it deserves!

[Thickasabrick]

22. WTF??? They've already seen it? Why are they doing this??? eom

[truebrit71]

26. WTF? This is NOT change we can believe in...this is covering up for the criminals...

...and it needs to be corrected...If we knew ahead of time that Obama's DOJ would extend the Bush DOJ policies I would have saved myself a shit-load of money and NOT spent it on "change"...

[chill_wind]

27. Marcy Wheeler -- has been unraveling this day by day, hour by hour

for several days over multiple diaries. A staggering amount of information and detail, helped along by a lot of legal minds regularly commenting.

She began last Thursday

http://emptywheel.firedoglake.com/2009/02/26/a-whole-heap-of-bad-faith-in-al-haramain/

Huge volume of analysis since.

Two of the al Haramain lawyers have showed in the last 24 hours to comment (carefully)- Thomas Nelson and Wendell Belew.


I have some other links here, including one to story about Nelson's experience in all this
several years ago ("black bag operations"):

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5165901&mesg_id=5165901