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Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases:
I didn't know that you could live-blog a federal court of appeals oral argument, but if we know anything about the Ninth Circuit, it's that everything is possible! To prove the point, Ryan Singel and David Kravets live-blogged today's oral argument in the NSA state secrets cases.

  Their take: "On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers." A short-term victory, yes, but the label "Pregerson, Circuit Judge" will be sure to draw some attention on a cert petition. The audio of the argument should be up on the Ninth Circuit's website by tomorrow, but it's not up as of right now.

Related Posts (on one page):

  1. Ninth Circuit State Secrets Case:
  2. Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases:
Dilan Esper (mail) (www):
Again, I don't doubt that Pregerson's name calls some attention to certain Supreme Court justices, but we have a working majority of five justices who don't trust anything the Bush Administration tells them about the war on terror anymore. If they take this case, it will be because there are at least five votes against the government's position.
8.15.2007 11:21pm
Anderson (mail) (www):
Are we to the point now where one needn't read the opinion itself, just the names of the judges in the majority? God help us all.
8.15.2007 11:33pm
Dave N (mail):
Anderson--I agree with both aspects of your point--that Judge Pregerson's name doesn't necessarily mean that certiorari will automatically be granted--or that if cert. is granted, the decision will be upheld because "a working majority of five justices who don't trust anything the Bush Administration tells them about the war on terror anymore."

Let's wait and see what the Court says--and then discuss whether its decision has merit.
8.15.2007 11:36pm
OrinKerr:
Dilan,

I'm curious: What is your evidence that there is a "working majority" of Justices that will oppose everything the Bush Administration does no matter what the facts are?
8.15.2007 11:37pm
OrinKerr:
Anderson,
Are we to the point now where one needn't read the opinion itself, just the names of the judges in the majority?
Anderson, what suggested that idea? I wrote that "the label 'Pregerson, Circuit Judge' will be sure to draw some attention on a cert petition"; I didn't suggest that the Court would grant a case without reading the opinion below.
8.15.2007 11:45pm
Just an Observer:
As long as there is some crystal balling going on, we might start to wonder how vigorously the administration of Clinton 44, or some other new president, will continue to defend all the positions staked out by lawyers for Bush 43 if such cases stretch into 2009.
8.16.2007 12:40am
Dave Hardy (mail) (www):
Are we to the point now where one needn't read the opinion itself, just the names of the judges in the majority? God help us all.

He just said it would attract a certain attention on the cert. petition.

Not like the oral argument in state court years back, where I am told the appellant's argument began:

Counsel: This is an appeal from a decision of Judge ____ ....

Appellate Judge: And what are the other grounds for appeal?
8.16.2007 12:46am
scote (mail):
I am really struck by the Administration's stance on the NSA case. They claim that the extra-constitutional "State's Secrets" privilege should trump any claim. I would have liked the panel to explore the limits of this de-facto claim of immunity from prosecution and ask the government if their is any level of alleged malfeasance the Administration could not conceal and and get away with using this claim. They already claim it applies to claims of torture and if they can do that I can't think of anything they couldn't apply it to...
8.16.2007 1:12am
axios023:
If you want the audio, you'll need the case number, 06-17132.
8.16.2007 11:25am
GV:
It's a pretty good panel for the plaintiffs -- not only do you get Pregerson, but also Hawkins and McKeown. For those that don't know, Pregerson is likely the most liberal member on the ninth circuit -- he's also the most likely to stretch to reach his desired result. Hawkins is a former prosectuor and a clinton appointee. He's liberal and an excellent judge. McKeown is, I believe, a Clinton appointee as well. She's liberal, although fairly moderate for the Ninth Circuit.

Apparently during oral argument the Government several times made statements that, if true, would seem to make the cases go away. The panel kept asking the Government attorneys in response: would the Government be willing to swear under oath regarding the veracity of that statement?
8.16.2007 11:48am
Anderson (mail) (www):
The panel kept asking the Government attorneys in response: would the Government be willing to swear under oath regarding the veracity of that statement?

And the Gov't said, "um, no."
8.16.2007 12:13pm
Bruce Hayden (mail) (www):
Before you get to Cert., don't you have to get through the possibility of a (in this case quasi) en banc hearing?
8.16.2007 12:42pm
Old33 (mail):

Before you get to Cert., don't you have to get through the possibility of a (in this case quasi) en banc hearing?

Not necessarily. The losing party can choose en banc, or choose to go directly to the Supremes.

If the government loses (which seems to be the concensus view), I think they'll go directly to the Supremes. There's no reason to think that the 9th Circuit, en banc, would come out any differently.
8.16.2007 12:51pm
Bruce Hayden (mail) (www):
I am really struck by the Administration's stance on the NSA case. They claim that the extra-constitutional "State's Secrets" privilege should trump any claim. I would have liked the panel to explore the limits of this de-facto claim of immunity from prosecution and ask the government if their is any level of alleged malfeasance the Administration could not conceal and and get away with using this claim. They already claim it applies to claims of torture and if they can do that I can't think of anything they couldn't apply it to...
Except that most government secrets don't involve operational information about ongoing national security operations.

The reality is that if the State Secrets claim applies to anything, it would apply in this case. Why? Because the primary purpose is to keep that information away from known and designated enemies of this country.

So, the suggestion that administrations make all sorts of State Secret claims is unavailing here, since this is not a case of something innocuous that likley is irrelevant to national security, but rather risks disclosing information that would allow enemies of this country to communicate more effectively with each other with less chance that we could intercept the communications. It is thus much closer to the knowledge of what houses our troops are going to hit tonight in Iraq than what the VP had for lunch yesterday.

And courts typically don't rule on hypothetical borderline cases when the case at hand is not a borderline case, and if they do, it is typically dicta.
8.16.2007 12:54pm
Anderson (mail) (www):
If the government loses (which seems to be the concensus view), I think they'll go directly to the Supremes. There's no reason to think that the 9th Circuit, en banc, would come out any differently.

Must disagree, Old. The advantage of seeking en banc review is not to *win*, but to *delay*. The feds want to spin these cases out until after Election Day 2008.
8.16.2007 12:57pm
Bryan DB:
I liked this exchange:

"Was a warrant obtained in this case?" Judge Pregerson asks.

"That gets into matters that were protected by state secrets," Garre replies.


A "yes" or "no" answer is a state secret? Only if you're hiding something.
8.16.2007 1:35pm
scote (mail):

Except that most government secrets don't involve operational information about ongoing national security operations.

The only "secret" at the time was whether the government had a warrant at the time. The known fact that the US can and does wiretap some phone calls cannot legitimately be called a secret so the government is merely arguing that the **authorization** or **legal authority** is a state secret. Pure balderdash.

...and you haven't addressed the issue of what the government cannot claim to be a state-secret. You cite the idea that as long as the alleged crime is declared an "ongoing" operation then it is exempt from prosecution--and idea that is as pernicious as it is untenable.
8.16.2007 3:43pm
OrinKerr:
A "yes" or "no" answer is a state secret? Only if you're hiding something.

I don't follow your argument, Bryan DB.
8.16.2007 3:49pm
Bryan DB:
Orin,
My argument is that the government really doesn't have any interest in honestly approaching this case. Giving a simple "yes" or "no" answer to Pregerson's questions does not implicate national security in any way, and only serves to harden the judges against the government's position. Say the answer is "yes"; does that disclose some essential element of the program? Of course not, it would at most disclose that they went through a process with a FISA court that we already know about. Say the answer is "no"; would that disclose an essential element of the program? Of course not, but it would show that the government acted illegally. Therefore, rather than giving honest answers, the government lawyer blows smoke out his butt.
8.16.2007 5:20pm
scote (mail):

A "yes" or "no" answer is a state secret? Only if you're hiding something.

I don't follow your argument, Bryan DB

As Bryan DB has clarified, the government argues that whether they obtained or have to obtain warrants is classified. To call such a "state secret" is ridiculous.

This is in regards to spying on people **inside the US**, the issue of a warrant is very relevant to the constitution and cannot reasonably be said to be a "state secret." What's next? Claim that the constitution is a "State Secret?" I see no functional difference.
8.16.2007 5:28pm
Dilan Esper (mail) (www):
Professor Kerr:

They granted a rehearing on a cert. denial for the first time since Hickman v. Taylor. That takes five votes. Further, even when cert. was originally denied, Kennedy basically said in a concurrence that they were denying cert. because they expected the government to follow the law. And all this comes on the heels of Hamdan.

At this point, Kennedy has committed himself to the position that he is the only thing that prevents the Bush Administration's expansive theories of wartime executive power from becoming reality.
8.17.2007 4:37pm
PrelKikam (mail) (www):
enter text? test, sorry

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8.21.2007 6:09am