DOJ and the FISA Lawsuit: The Lawyers are Doing Their Job (Kos Attorney's Diary)

[kpete]

DOJ and the FISA Lawsuit: The Lawyers are Doing Their Job
by wmtriallawyer

Wed Apr 08, 2009 at 08:05:19 AM PDT

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

Fact #1: This is a civil lawsuit for money damages and/or equitable relief. Plain and simple, the Plaintiff seeks monetary damages against the Defendants. I.e., you committed a wrong, and the only way to make up for that wrong is pay money. Or in the alternative, it seeks equitable relief -- i.e., an injunction -- to prevent a future wrong.

Fact #2: The Motion to Dismiss was filed by the government Defendants in their official capacity. Two important points here. First, this is a Motion to Dismiss claims, or in the alternative, for summary judgment. I can tell you as a matter of legal practice, any time a government is sued, there is a Motion to Dismiss filed, primarily to see if you can "knock out" at least some of the claims, or if you get lucky, the whole lawsuit. Second, the "official capacity" part is key. Simply stated, DOJ is moving to dismiss Defendants "The United States of America," "President Barack Obama," "Attorney General Eric Holder," etc. in their official capacity. Official capacity is just like it sounds...you've been sued by virtue of the fact that a. you are a government agency or b. you work for that government agency in some official way.

Fact #3: As a general rule, governments and government official have immunity for acts in their official capacity. This is nothing new. It is the concept of "sovereign immunity" which has been around for hundreds of years. The general rule is established so that Joe Blow cannot simply "sue the government" for every perceived wrong that government does, because it would not be in the public interest for ALL for the government, as an entity, to have to defend said lawsuits or pay out damages in its official capacity. However, and this is critical, this does NOT mean a Plaintiff can't sue a government employee for wrongful acts committed in the scope of their employment in their personal capacity. Indeed, in the lawsuit at hand, DOJ makes clear that they are filing this Motion for the government Defendants sued in their official capacity, despite the fact that many, many more are sued in their official capacity. Keep in mind, there are immunities available to those in their personal capacity as well, which DOJ also raises. But those immunities are generally not as strong as the immunity provided for those acting in an official capacity.

Fact #4: Asserting a defense in a lawsuit does not in any way equate official government policy. Trust me on this one. I've had to assert defenses to lawsuits early on in the stages of litigation, as is the case in the FISA lawsuit. And it does NOT mean in any way that it is some sort of policy declaration.It is doing what is necessary to defend my client from the relief sought by the Plaintiff. Plain and simple. And that is especially true at the Motion to Dismiss stage. Indeed, these issues are going to be litigated not only at the trial stage, but at the appellate stage. And believe me, DOJ is going to continue argue immunities, because that's their job. Not only in this lawsuit but in all future lawsuits. It is their job not to create policy, but to defend their client. They are not simply going to roll over and say, "OK, you win, we'll pay you a truckload of money." Not going to happen. And certainly not going to happen at this early stage of the game.

more at:
http://www.dailykos.com/storyonly/2009/4/8/717799/-DOJ-and-the-FISA-Lawsuit:-The-Lawyers-are-Doing-Their-Job

[bunnies]

1. This is sinking fast. Wonder why...

:kick:

[Political Heretic]

2. I've been reading and processing this post for a few minutes now....

And I've been quite reluctant to talk about this because its taken me longer than everyone else to have the time to read the motion, and start reading criticism and support of it and figure out what the deal is.

But my initial reaction to this is that I'm not sure that I'm comfortable with the "its their job" line. I'm not saying it isn't true, I'm saying I'm not sure that's the way it should be, and I'm saying I believe that the administration could get around that if they were interested in doing so.

What's been missing for me so far, is no one has made an affirmative argument as to why its better for America that the administration take this expansive position. Many people have made defending arguments explaining why this might not be as bad as some thing, why it might not be a big deal - and perhaps that's true.

But what I want to here is a full argument for the virtue and benefit to the public of making this argument as opposed to not doing so.

Incidentally, the paragraph that you didn't quote (though I'm not assuming on purpose; looks like you hit the four paragraph limit) to me seemed to contain the weakest argument. The author didn't seem to see the concern over the move to expand immunity via the Patriot Act, simply because as a lawyer he's or she is going to make any argument possible to defend the client, and lawyers don't set policy, etc....

Unfortunately, anyone without short term memory loss will remember how not too long ago lawyers and lawyers motions were setting and reinforcing a complete spectrum of destructive, constitutionally eviscerating laws or executive practices. They did influence policy, if not outright establish it. Each time the arguments of the administration were upheld, their executive approach was legitimized. What attorneys representing the United States executive argue and what the executive branch stands for as policy are unfortunately interconnected, as we have all seen first hand in previous years.

I return to my original question - why do this? I understand how one can defending it as people "just doing their jobs, its not their fault" or "its not that big of a deal" or "some provisions were dropped." But that doesn't give an affirmative answer. Why do this? How does it benefit America, how does it increase transparency and accountability, restore constitutionally protected civil rights and the rule of law?

[chill_wind]

8. Some read KOS lawyers. Some read Emptywheel lawyers.

(the lawyers show up daily in the comments section- including high profile guest ones from time to time)


http://emptywheel.firedoglake.com/2009/04/07/the-latest-state-secrets-claim/

[The Magistrate]

3. The Author Is Quite Right, Ma'am

Standard moves, that it would be legal malpractice not to take.

[midnight]

4. Thanks for posting this legal explaination about the process

that is in play here.

[L. Coyote]

5. Context, context, context:

LITIGANT's website: http://www.eff.org

[Spazito]

6. Thanks, kpete, for posting this....

It is good to see the facts surrounding this beginning to come out. To interfere with the ongoing legal process, as some would wish, would be a continuation of the bush administration judicial interference practices, imo. The Court will decide this as it should.

[wiggs]

7. So what would be wrong with clarifying what the policy position is at this

point in time, indicating that this government does not believe in spying on americans without a warrant? If this doj statement is just a technicality, let's have the real stance so that the administration isn't caught in crossfire from the left and the right.

Until I hear that the policy is different than the technical position taken by DOJ, then critics have a good point.

[Political Heretic]

9. That seems fair to me, and sounds like a reasonable and pertinent request

[tandot]

10. Thanks for posting this, kpete! K & R

[DCKit]

11. A hearty K&R for the explanation... But especially for the responses. n/t

[L. Coyote]

12. Video: KO: Obama's DoJ & warrantless spying = Jewel v. NSA

KO: Obama's DoJ & warrantless spying = Jewel v. NSA
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385x294258