LegalPad’s jaw temporarily dropped this afternoon when we came across a post on Wired’s Threat Level blog headlined: “Obama Sides With Bush in Spy Case.” We had spent our morning sitting in on today’s federal court hearing in the Al-Haramain wiretapping lawsuit, the one Wired was writing about, so we wondered what big announcement we missed. As it turns out, Wired may have erroneously homed in on two court filings by the government to form its opinion.
Government trial lawyer Alexander Haas filed two case management statements on Thursday, but accidentally filed the first one citing George W. Bush as the president. Haas seemed to realize his error, filing the same document again but writing, “(Corrected) filed by Barack Obama,” before going on to list the other named defendants. On the first page of the corrected case management statement, Haas writes that “President Obama is substituted in his official capacity as a defendant in this case” under the Federal Rules of Civil Procedure, section 25(d).
Wired takes this to mean that Obama “fell in line” with the Bush administration, but it’s important to remember a couple things. One is that section 25(d) of the federal civil procedure rules states that “an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.” So Obama’s name has to be in there, whether he likes it or not. And second, as Al-Haramain attorney Jon Eisenberg pointed out at today’s hearing, none of Obama’s political appointees to the Department of Justice have assumed control yet, not even would-be Attorney General Eric Holder Jr. It’s worth noting that during Holder’s confirmation hearing last week, he said that the Foreign Intelligence Surveillance Act (and its new set of amendments) is the sole way for the government to conduct wiretapping. That statement appears to contradict the government’s repeated assertion of the state secrets privilege to protect itself in the Al-Haramain case, which makes LegalPad expect at least a partial change in course from the Obama DOJ.
The Al-Haramain wiretapping case is pending before Northern District Chief Judge Vaughn Walker, who will entertain arguments in February on the government’s motion to halt the case while it attempts an appeal.
— Evan Hill