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US gov ordered to play ball in state secrets case

As Obama DOJ just says no

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"This is a lawsuit, not a career, Mr. Coppolino," a rather exasperated Judge Vaughn Walker explained in court today, chiding the lead counsel for the Justice Department, Anthony Coppolino, as Mr. Coppolino's stony-faced counterpart from the National Security Agency, Timothy Stinson, sat silently at his side. Why obey court orders to address discovery coordination, when obstruction and delay are so productive?

Round and round it goes, this existential odyssey of American constitutional jurisprudence now innocuously known as In re National Security Agency Telecommunications Records Litigation. One of the strangest and most unique lawsuits in the annals of American legal theory, Al-Haramain v. Bush, has thus been reduced to the emasculated vernacular of the lawyer class, swathed in the banality of judicial coordination and multijurisdictional litigation.

Not surprisingly, as noted below, Judge Vaughn today dismissed most of the related NSA litigation, bringing the litigation back to its toughest legal kernel: Just what to do with plaintiffs who know first hand that they were illegally spied upon by their government but have been stripped by order of the court of any right to testify to that effect?

Spooks and their ilk, such as the spectral, aforementioned Tim Stinson, Esq., regularly contract away their rights to discuss matters of personal experience, via confidentiality agreements, but it is highly unusual for a third party to be prohibited from testifying as to matters lodged in their own memories, direct fruits of personal experience. Indeed, the plaintiffs in Al-Haramain appear to be the only plaintiffs in American history to be prohibited under the controversial "state secrets doctrine" from testifying as to matters of personal knowledge, absent being a part of the national security apparatus in some way.

Such knowledge, after all, is exactly what parties or witnesses, are normally required to testify to.

Judge Vaughn acknowledged the Orwellian conundrum with some frustration: "I don't see how we can have a judicial proceeding in which one party gives is evidence to the Court, but not to its adversary." Combined with the government's refusal first under Bush and now under Obama to engage in any kind of meaningful declassification - or, indeed, to acknowledge a more narrow (and historically accurate) reading of the "state secrets doctrine," as elucidated recently by the 9th Circuit in the Jeppessen rendition case - the Court could do little but move the case forward based on the fairly substantial evidence already in the public record.

Although the plaintiffs have already seen crucial confidential evidence against them, the government has acknowledged the existence of the widely reported program - and crucial evidence has entered the public domain overseas - the government understands that the overriding principle of who has the right to control information has yet to be decided. As such, the order to show cause addressed the obstinate - and to the dismay of constitutional scholars, ongoing - refusal of the DOJ to obey clear, previously issued court orders regarding discovery issues by moving the case forward in the most expeditious fashion possible. Why fight over confidentiality when the public record may prove adequate to establish standing to sue?

No reason to give the DOJ - which at this point has done nothing more than recycle previously dismissed arguments - any grounds for appeal.

Bootnotes

Earlier in the day, the Court - as expected - swept away private lawsuits against corporations in cases in which the government was not a defendant, as well as various attempts by state attorneys general to press state law claims on issues of unlawful business practices and assorted state constitutional rights, such as rights to privacy.

No surprise. Although the states' rights issues had merit, such state law claims are always trumped by conflicting federal law, particularly in the realm of national security. Furthermore, after considerable lobbying, Congress did back flips to eliminate liability for the telecoms industry in the FISA revisions that passed Congress last summer. It clearly paid off, as the Court noted that any constitutional telco liability could be imputed - fingers crossed - to the government.

Of course, the telco suits were filed precisely because the Bush administration inveterately (and wrongly) invoked the state secrets as an absolute bar to suit rather than a narrow evidentiary privilege, and the courts dutifully obeyed.

Put that in your pipe and smoke it, hippies.

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