Court: State Secrets Privilege No End to Case

OPEN GOVERNMENT — The Associated Press reports that the Obama administration has lost its argument, echoing the Bush Justice Department's position, for a state secrets privilege terminating a lawsuit challenging the
government's warrantless wiretapping program.  A federal appeals
court in San Francisco today rejected the department's
request for an emergency stay in the case involving warrantless surveillance of a defunct Islamic
  (Case documents here)

The Obama administration, like the Bush administration before it,
claimed national security would be compromised if a lawsuit brought by
the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was
allowed to proceed.

    Now, civil libertarians hope the case will
become the first chance for a court to rule on whether the warrantless
wiretapping program was legal or not. It cited the so-called state
secrets privilege as a defense against the lawsuit.

    "All we
wanted was our day in court and it looks like we're finally going to
get our day in court," said Al-Haramain's lawyer, Steven Goldberg.
"This case is all about challenging an assertion of power by the
executive branch which is extraordinary."

    A Justice Department spokesman declined to comment.
decision by the three-judge appeals panel is a setback for the new
Obama administration as it adopts some of the same positions on
national security and secrecy as the Bush administration.

this month, Attorney General Eric Holder ordered a review of all state
secrets claims that have been used to protect Bush administration
anti-terrorism programs from lawsuits.

    Yet even as that review
continues, the administration has invoked the privilege in several
different cases, including Al-Haramain.

Parking Ticket Mills: Don't Tell It to the Judge

OPEN GOVERNMENT — Did a private company process the parking ticket you recently paid?  If you contested the ticket, was your challenge summarily denied?  A CalAware member's current experience suggests that a secretive due process abuse reported by OC Weekly in 2006 is still in full vigor.

Before AB 408, drivers could be hauled off to jail merely for failing to pay a ticket that might have washed off in the rain. They were put into orange jumpsuits and released only after paying an exorbitant fine.
    Traffic and auto safety violations are still handled this way, but AB 408 decriminalized parking citations. It turned them into ordinary civil violations. This reform had two effects—one good, one bad: drivers are no longer hauled off for overstaying a green zone or running out of quarters to feed a parking meter. That's a good thing.
    But the reform accomplished this feat only by turning parking citations over to a privatized, unregulated, quasi-judicial Never Never Land. While drivers can still protest moving violations before a traffic court magistrate, parking tickets are a different matter.
    In place of your day in court, AB 408 allowed public entities—cities, counties, colleges and transit districts—to contract with private agencies to provide "administrative hearings." In Orange County, most municipalities and the county government have contracted with outside companies.

For example, this one, whose professed commitment "to enhancing the revenue of the clients it serves" should warm a taxpayer's heart.

Champagne Maker Wants Web Critics' Names

FREE SPEECH — In the latest twist in a case that could test the limits of free speech on the Internet,
Korbel Champagne Cellars will ask a Sonoma County judge next week to
make Comcast Corp. identify its customers who criticized the wine
company in a Web forum, reports the Santa Rosa Press-Democrat.

Korbel sued the anonymous critics last year for defamation, saying their comments damaged the century-old business.

postings in a Craigslist forum last year accused Korbel of punishing
employees who reported sexual harassment. They also contended the
winery was plotting to cut down redwood forests on its Guerneville
property. Other posts alleged Korbel bribed law enforcement and court
authorities to keep the company out of trouble.

The charges are
false, said Korbel spokesman Terry Fahn. They’ve damaged Korbel’s
reputation, according to its lawsuit filed in Sonoma County Superior

The suit seeks an injunction and unspecified damages.

Yee Bills Would Increase Higher Ed Disclosures

PUBLIC INFORMATION, WHISTLEBLOWERS — Senator Leland Yee (D-San Francisco) has announced introduction of measures to reform public disclosure practices in California’s higher education systems by addressing recent public records and whistleblower controversies at the California State University and University of California, respectively.

SB 218 would update the California Public Records Act (CPRA) to include auxiliary organizations that receive public funds or perform government functions on state campuses.  The bill is a result of denied public records requests of auxiliary organizations operating at Sacramento State and Fresno State Universities.
     At Sacramento State, the campus bookstore denied a request regarding contractual provisions that determine textbook markup rates and the length of the managing contract.
     In 2001, the Fresno Bee newspaper was also denied information, specifically concerning the identity of individuals and companies that purchased luxury suites at the Save Mart Center arena at Fresno State.  The denial resulted in CSU v. Superior Court (McClatchy Company), in which the Court opined that although it recognized university auxiliaries ought to be covered by the CPRA and that its ruling was counter to the obvious legislative intent of the CPRA, the rewriting of the statute was a legislative responsibility.
     “Taxpayers and students deserve to know how their public universities are run,” said Yee.  “SB 218 will ensure that our higher education systems operate in the light of day and thus are held accountable.”

The bill would also apply to the auxiliary organizations at campuses of the community colleges and the University of California.

SB 219 would provide UC employees with the same whistleblower protections and legal standing as all other state employees.  The bill comes as result of a ruling last year by the California Supreme Court, which limited the legal rights of UC employees who were retaliated against because they reported wrongdoing.  The Court ruled that inadvertent language in the state’s Whistleblower Protection Act prevents UC employees from suing for damages, so long as the University itself reviews the complaints and rejects them in a timely fashion.
     “This is the classic case of the fox guarding the hen house,” said Yee.  “UC executives should not be judge and jury on whether or not they are liable for monetary claims.  This was not the intent of California’s whistleblower law.  In light of the Court’s ruling, it is imperative that we pass SB 219 and immediately correct this statute to protect UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse.”

FREE PRESS — In a reversal of an 18-year-old policy that critics said was hiding the
ultimate cost of the wars in Iraq and Afghanistan, the press will now
be allowed to photograph the flag-draped coffins of America’s war dead
as their bodies are returned to the United States, reports the New York Times—but only if their
families agree.

The decision, which lifts a 1991 blanket ban on such photographs put in place by former President George H.W. Bush, chiefly affects coffins arriving from Iraq and Afghanistan that go through Dover Air Force Base in Delaware.
    The ban, which was renewed by the administration of George W. Bush
as recently as a year ago, was long a source of intense debate. The
military said the policy protected the privacy and dignity of families
of the dead. But others, including some of the families as well as Iraq
war opponents, said the ban sanitized the wars in Iraq and Afghanistan
by hiding from the public images of the ultimate cost.

    In the end, Mr.
Gates said, he came to the conclusion that “we should not presume to
make the decision for the families, we should let them make it.”

    Under the new policy, photographs will not be permitted of coffins if the families say no.

The pious and phony posturing persists. Among the unclear points at this juncture:

  • Since every one of the thousands of coffins returned through Dover looks exactly like every other one, does the family veto apply only to photos of individual coffins borne by military honor guards in relatively close-up view, or can one family, confident that its deceased relative is in one of the dozens of coffins shown massed in a cargo plane bay or a hangar, veto such a group shot as well?
  • Can one family in such situations veto the shot even if all other relevant families want it?
  • What really has been going on here—and continuing under the present policy—other than the government's cynical exploitation of service family grief as part of its campaign to delegitimize the role of the press throughout the Southwest Asia war for the past decade and a half?
  • What's next—no photos of Arlington or the Punchbowl if a surviving family can be persuaded to object?

The no-photos policy did not begin with the Bushes, but as Charles Paul Freund noted in a 2004 piece in Reason magazine, neither was it previously justified by some pretense of concern for "family privacy."

World War II, a singularly misperceived experience, offers telling
illustrations of many of the complexities involving both the control of war
images and the reaction to them. As author Roeder recounts, for the first
two years of that war there was not a single documentary image of American
death released to the public. This was a continuation of the policy adopted
during World War I, when the American government censored all such images
throughout the conflict.

The reason that Franklin Roosevelt followed Woodrow Wilson's censorship
example, it appears, is that FDR was uncertain of continued public support,
especially for the war in Europe. Until mid-1942, the war news was nearly all
bad, and a significant number of Americans thought an overextended U.S.
should have concentrated on Japan, which had attacked the country. Nearly a
third of the populace favored making some accommodation with Nazi Germany
and extricating the U.S. military from Europe. The administration feared
that images of the war's dead would demoralize the country, and further
erode support for the war's broad strategy. War photographers (who, like war
reporters, were actually in uniform) often had to send their unexposed rolls
of film to the Pentagon for processing.

By late 1943, however, FDR's administration and the military had completely
changed their minds. Americans, they decided, had by then become too
complacent about the war. Much of the war news had been positive, and the
government was worried about increasing work absenteeism. What Americans
needed, thought the state, was a display of military sacrifice; the Pentagon
quickly released hundreds of images of dead soldiers to remind civilians
that the war remained a deadly business still to be decided. As it happens,
many publications refused to publish the images; their editors feared such
pictures would "disturb" readers. However, some of the country's largest
circulation periodicals, such as Life magazine, did run them, and
they were widely seen.

Freund says both views may have missed the mark.

There is an obvious third proposition: Neither of these generalizations
about the effect of death imagery was necessarily correct. While there is
often a plain and unchanging personal meaning in such images of death, there
is no inevitable political meaning in them; rather, their political meaning
and impact can change according their context. The most important factor in
that context is probably not whether a given conflict appears to be going
well, but whether the viewer of such images believes the war's cause to be
just, and its pursuit purposeful. If you believe that about the Iraq war,
then you probably interpret the coffin images a certain way; if you don't,
you probably see a different picture.

The Ten Commandments as Government Speech

FREE SPEECH — Tony Mauro reports in Legal Times that in its decision issued yesterday in Pleasant Grove City v. Summum, the U.S. Supreme Court concluded that a city that once allowed placement of a Ten Commandments
memorial on public park land can say no to a similar monument proposed
by another religious group—in this case a memorial displaying the
"Seven Aphorisms" of Summum, a small religious sect.
The rationale: placement of a memorial on public land is a
form of government speech, not the kind of private speech in a public
forum that invites First Amendment scrutiny.

When Summum followers challenged the Utah city's refusal of its
monument in 2005, the U.S. Court of Appeals for the 10th Circuit
treated it as a kind of private speech taking place in a public forum,
a combination of factors that went against the city. The appeals court
ruled that the city could not refuse the Summum request without
compelling justification.

But Alito said a different model was needed, because while speakers
or protesters in a park come and go, "monuments, however, endure."
Public parks cannot accommodate every organization that wants to place
a memorial, he said.

By calling it government speech, Alito was able to skip over the
knotty problems of public forum doctrine and private speech. "The
ruling has a sort of housekeeping function," by helping categorize
similar cases in the future, says Patricia Millett, partner at Akin, Gump, Strauss, Hauer & Feld, co-counsel for Pleasant Grove City.

But Alito and concurring justices said the decision does not solve
every problem posed by religious monuments in parks. "Government speech
must comport with the Establishment Clause," Alito warned, an
acknowledgment that in some circumstances, a government speaker who
shows preference for one religion over another might be challenged.

So it's a winner-take-all race to the park?  If Summum had arrived first and the city said no, could it have later accepted any other religious monument? Or is it the rule that monuments reflecting beliefs less central to the Judaeo-Christian tradition—and thus unlikely ever to be recognized as congruent with American tradition and hence "government speech"—are inherently subject to rejection? This conclusion may confirm the old saw that a religion is a cult with political power.

OPEN GOVERNMENT — Patrice McDermott, director of, reminds those interested that as of today, February 26, there are "10 days left to indicated your Most Wanted docs."

Please be sure to visit and identify and request a document the federal government (not just the Executive Branch) needs to collect and/or one that it has and needs to make available in a machine-readable format. There are no limits to how many documents you can request. You are, of course, welcome to vote for the ones already listed, but we need your input on what is missing from that list.

CalAware has an entry, and if you would like to see such information go public, go to the site and vote for it.  The idea: a "Roll Credits" annotation of Congressional lawmaking and Executive Branch rulemaking.  Or to put it slightly differently,

A paternity/maternity log annotating the name, title and organization or employer of all individuals—Congressional members, regulatory officials, staff and lobbyists or others—contributing to the addition, amendment or deletion of every provision in the text of every bill or proposed rule, at the time of that addition, amendment or deletion.  While there is no single record of this kind in existence, the information is recorded in scattered (and, within Congress at least, so far confidential) documents that could be easily identified.

By the way, if you do post your own idea(s) for federal documents that need disclosure and/or posting on the Internet, let us know in a comment below, and we'll pass the word.  Again, the deadline is March 9 for both ideas and votes.