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September 09, 2010

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Some more history of the B-29 crash here.

It seems the "state secrets privilege" as currently understood is approaching the level of danger to national security that the actual release of state secrets represents. This is bad risk management.

Sorry for going on so long again.

"Je N'ai fait celle-ci plus longue que parceque je n'ai pas eu le loisir de la faire plus courte.
--I have only made this letter rather long because I have not had time to make it shorter."

-- Pascal. Lettres provinciales, 16, Dec.14,1656. Cassell's Book of Quotations, London,1912. P.718

Don't be sorry. It didn't seem nearly as long when reading it as it actually was.

America...feet of clay.

Thanks, Gary, at whatever length. It's times like these that I most miss Katherine's and Charley Carp's analysis and insight.

And Hilzoy's.

Gary,

I had read this last night and hoped someone would post it.

While I find the ruling interesting, I am not sure about the breadth of the impact.

The trial judge did find the national security argument compelling and dismissed the case. The remand to the district court would have simply told him his assessment of the security implications was wrong. So, the court did find that there was a national security interest at stake, even if it was only broadly described.

However, if the SCOTUS hears it, I suspect they will restore the power to the judiciary.

As an aside, although I may be reading too much into the reaction to the President's scolding at the State of the Union, this would be a good time for a president to have a court inclined to cede him more power.

"While I find the ruling interesting, I am not sure about the breadth of the impact."

For now it's limited to the 9th Circuit, to be sure, and I probably should have spelled that out.

What the SCOTUS will do, I don't think I'll hazard a guess at.

It's amazing how thoroughly Obama has made me want to vote against the dems.

The ill-defined state secrets privilege can hardly impinge on the plaintiffs in this case.

It could leave Jeppesen without the means to defend itself, but that's hardly the fault of the plaintiffs. Jeppesen should be more careful about who it does business with.

The CIA's foreign torture program is hardly a secret, least of all to its victims.

Shame on Obama and Holder for this cover-up.

Also, kudos to the NYT for referring to this torture as torture.

I don't know if they're still using the odious term "enhanced interrogation" for torture performed by U.S. personnel at U.S.-owned facilities, but this is a start.

They still can't even allude to a p*nis, though.

"One of the men, Binyam Mohamed, had his bones broken in Morocco, where security agents also cut his skin with a scalpel and poured a stinging liquid into his wounds."

Where was that skin, allegedly? I guess all skin is alike....

I don't think we're going to get too many complaints that you wrote this, Gary, instead of Eric Martin. Excellent summation reflecting the incisive analysis you have shown here in comments over the years.
If anything, I have found your writing here - responding to ongoing sparring - even more compelling than that at Amygdala.

The Torture subject - even though inseparable from the whole action of rendition not being 'extraordinary' in practice - has rubbed peoples' noses in the difference between Obama-mania and Obama in play.
Much of the problem is not that it was a Bu$h or Reagan or even GOP program to 'subvert the rule of law'...but that hypocrisy and flim flam has always been the nature of the beast. In fact, if you have noted Samuel Clemens/Mark Twain's legacy being opened up this year, a frank reading of his "The War Prayer" could have been written at any time and in different centuries including this one.

I keep a 'file drawer' called Topical Index in my sidebar at opitslinkfest.blogspot.com While you certainly can surf for content, sometimes it is still more immediate to have your attention drawn directly to relevant detail. I recommend- under 'Law' - http://www.aclu.org/national-security/military-commissions-act-2006

http://en.wikipedia.org/wiki/American_Servicemembers%27_Protection_Act

http://www.amicc.org/usinfo/administration_policy_BIAs.html

There seems to be more realization of the true state of affairs in the UK, which has openly mocked its suppression back to Shakespeare.

http://www.bbc.co.uk/news/uk-politics-11242823

"The Torture subject - even though inseparable from the whole action of rendition not being 'extraordinary' in practice - has rubbed peoples' noses in the difference between Obama-mania and Obama in play."

The idea that the president should have the right to unilaterally decide who to fire a missile at from a drone, anywhere in the world, is also an up-and-comer.

One truly bizarre thing about this state's secret business is that it's invoked about things that are not even classified, at the time. "Classified" has been, on a seemingly arbitrary basis, expanded to include those things that this country simply finds too embarrassing to have told about it.

But not everything. Mostly stupid things, like why a plane crashed.

Meanwhile, actual secrets make it into the news because it was to someone's advantage to leak them, and rarely does anyone see consequences.

"Meanwhile, actual secrets make it into the news..............."

I dont' get that one. What "actual secrets" are you referring to?

Does the name "Valerie Plame" ring a bell?

What "actual secrets" are you referring to?

This is the most recent one I know of, but leaks by members of Congress and other government officials, to the press and to other parties who then relay it to the press, are fairly numerous.

And then there are the accidental leaks, which are sometimes epic in scope.

"This is the most recent one I know of, but leaks by members of Congress and other government officials, to the press and to other parties who then relay it to the press, are fairly numerous."

The most common "leaks" of all are those from executive and departmental officials selling policies and trying to leverage press coverage to do so. Then Congressional. Usually these are simply a public glimpse into a complicated bureaucratic fight.

The biggest leaks have typically been the Valerie Plame type authorized-at-a-high-level, aka "a senior administration official."

Don't know if there's a good answer to this or not, but are court proceedings in camera considered to be insufficient protection for sensitive or classified information?

And, of course, to add that extra touch of actual grammatical sanity:

"Why are court proceedings in camera" etc.?

"Don't know if there's a good answer to this or not, but are court proceedings in camera considered to be insufficient protection for sensitive or classified information?"

The short answer is "in some cases yes, in more complicated cases, it gets a lot more complicated." Specifically, there are a lot of intermediate steps, such as only the judge seeing material while in a secure enclosure, etc.

Then there's also the FISA court.

Probably the shortest answer is "no." But there are many exceptions.

Alternatively, "yes." But there are many exceptions.

When the government gets most paranoid, it invokes the state secrets doctrine.

I suppose it's too much to ask that any of the commenters here who derided the ACLU and those of us who immediately viewed with alarm the new administration's postion in Jeppeson might acknowledge that they were wrong.

Also probably too much to ask that Hilzoy, who did more to promote Obama here than anyone, might break silence to post an assessment at this point.

If upheld, this ruling means that the federal government can act with complete impunity in any area where it claims "state secrets". But of course you have nothing to fear if you don't raise your head above the crowd...

In an earlier discussion of this, hilzoy, blessings and peace be upon her, referenced a Doonesbury strip with Cambodian villagers being interviewed about the secret bombing. "Oh, it was no secret. Everyone knew." "Yes, I looked up at the sky and said, 'Run, Martha! Here come the bombers!"" "That's right, he did."

Did anyone else notice that this ruling was from the Ninth Circuit? Which is supposedly the most liberal-inclined circuit in the nation. IHMO, that makes it an all the more terrifying attack on all of our civil liberties.

Which reminds me of another Doonesbury from the same period. A peasant, surrounded by charred land, shakes his fist at the sky and yells: "I hope you can live with what you're doing to my country."

Up in the cockpit, the pilot: "Didja hear the Knicks took two this week?" Co-pilot: "Hey hey!"

This much has changed: the "pilots" are now at desks in Utah.

I suppose it's too much to ask that any of the commenters here who derided the ACLU and those of us who immediately viewed with alarm the new administration's postion in Jeppeson might acknowledge that they were wrong. Also probably too much to ask that Hilzoy, who did more to promote Obama here than anyone, might break silence to post an assessment at this point.

Um, Nell, what are you talking about? Hilzoy did write this piece:

Obama administration: you screwed this one up in a major, major way. Stop it. Stop it now.

How much more emphatic can she possibly be?

The freaking 9th circuit did this!

"It's amazing how thoroughly Obama has made me want to vote against the dems."

No kidding.

Who here disparaged the ALCU? Hell, I gave them a nice chunk of change last year.

Plaintiff's attorney: The United States government kidnapped my client, pulled out his fingernails, chopped up his genitals, broke his kneecaps, and then dumped him on the street in Peoria, all under the color of law. Here are hundreds of publicly available documents that prove this. We demand redress.

Judge: Gee, that sounds kind of serious and, if true, I'd have to rule in your favor. United States government, what say you?

U.S. Gov't: Well, uh, we deny all of these allegations as they are utterly and totally without merit.

Judge: Okay, I guess we'll move to discovery then. Pleas--

U.S. Gov't: State Secrets!!

Judge: Oh! They said the magic words, case dismissed! *Gavel*

Plaintiffs: Darn.

"If upheld, this ruling means that the federal government can act with complete impunity in any area where it claims 'state secrets'."

And not just the government, but anyone or entity they authorize, or somehow contaminate with an alleged secret. After all, Jeppsen is a private company; this decision, for the 9th at least, immunizes all private companies and individuals that the state wishes to immunize from any legal challenge or questioning, criminal or civil.

Maybe the President wishes to set up his own private assassination force, non-drone, human-direct, variety. Think you have evidence they killed your sister? Well, trust the executive or Congress to investigate, because you have no legal recourse if SCOTUS upholds this. (Even if they don't, the existing state secrets doctrine is only marginally better; Reynolds should be tossed entirely, leaving only the Totten rule, says this non-lawyer highly over-simplistically.)

Turb, I apologize for having been unclear; I can see how my post gave the wrong impression.

There are two categories of commenters I'd like to hear from. One is the Obama enthusiasts who defended the administration's position in Jeppeson, or insisted that it was eleven-dimensional chess designed to get a precedential ruling against state secrets, or dismissed critics (J. Michael Neal comes to mind as someone who insulted the ACLU, and me, and others here who objected at the time of the Jeppeson brief). I'm not really expecting to hear any acknowledgments or apologies, but I'd be pleased to.

In another category is Hilzoy herself, who I don't include in that first group exactly because of posts like the one you quote. I'm genuinely interested to hear what she thinks now, given her early opposition to the way the administration was cementing in place the worst abuses of the Cheney-Bush period (and the thin-end-of-the-wedge practices of the Clinton administration before them).

She stopped blogging last summer -- before it was a given that Guantanamo would remain open through Obama's first term, before some of the most egregious DoJ briefs wrt Bagram and other U.S. hellholes abroad, before the implementation of the multi-tier "justice" system she rightly warned against (now featuring a military tribunal being used to try a child soldier we've held prisoner for half of his life and have tortured), and before Obama explicitly asserted the right to assassinate persons, including U.S. citizens, anywhere in the world.

It's gone quite a bit further than just failing to keep some campaign promises. That must be especially distressing for someone whose expectations were fairly high. The only positive aspect of the Obama record on this array of issues is that it's potentially clarifying -- that is, it may help dispel illusions that Democratic administrations are inherently better in this respect.

It raises, for people who actually care about the results and implications of these policies rather than only protesting abuses of executive power when it's politically convenient, serious questions about what we can and should do from here on. I'd expect Hilzoy to have some thoughts worth reading on that subject.

In case Nell or anyone else doesn't notice (well, most won't, anyway), I've updated this post a couple of times.

It looks as if we will not get any action on the enlargement of executive powers until a Republican legislator is marked for death by predator drone or subject to extraordinary rendition and torture on the president's say-so.

"State Secrets" should operate somewhat like the "insanity plea": it should be a declaration that the case is valid but an alternative resolution is needed. The plaintiff's relief should be granted without further ado. The goal is to make refusal to face court costly. In the (maybe rare) case that government wants to claim state secrets really ARE at stake, courts should have special training to be able to review such claims, punish false claims, and punish plaintiffs who use the procedures as fishing expeditions.

I presume that all would require acts of congress. But no congress will act on balance of powers issues unless they are personally threatened, as I suggested above.

"It looks as if we will not get any action on the enlargement of executive powers until a Republican legislator is marked for death by predator drone or subject to extraordinary rendition and torture on the president's say-so."

If I thought it would, in the end, be useful to try to get Republicans to actually stand up against torture and the freedom of the president to unilaterally assassinate, I'd try, but the best that could be achieved would surely be that it would be another tool to get him and Democrats out of office, and them back in, and then they'd change nothing, because even if their rhetoric were anti-torture and pro-constitution, we've already seen how utterly meaningless that is.

But certainly Obama's "hey, trust me, I'm in charge now, so you can trust the President to do the right thing, and better and cleaner and nicer than George W. Bush did," just doesn't fly at all. The Imperial Presidency and our country have tipped way too far over for that.

Thanks for the alert, Gary. Obama's continued expansion of executive power seems to have had the clarifying effect on Andrew Sullivan that I speculated about in my previous comment.

(Speaking of ObWi'ers seeing things or not, I hope Turbulence and anyone else who thought I was lumping Hilzoy in with the leave-Obama-aloooone crowd read my reply. But I have my doubts, since 6 hours is a week in internet time... )

The Reynolds decision plainly contradicts longstanding Presidential guidance on classification, i.e., "In no case shall information be classified in order to (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency". The current executive order on classification, signed by Obama, carries forward the language from many previous versions of this order. In citing Reynolds the Dept. of Justice is contradicting both the letter and spirit of the President's own classification instructions.

Interesting point, Ralph H. Thanks.

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