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February 02, 2008

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I think the history of the original case that created the "state secrets privilege" should be mentioned, since it turned out that the alleged secrets were fraudulent and non-existent.

[...] The privilege was first officially recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission.

[...]

As a footnote to the founding case establishing the privilege, in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case.

More.

Gary: yeah, I had that in the first draft, but was trying to cut it down. It is pretty ironic.

Indeed. The State Secrets Act has become our version of Britain's Official Secrets Act. ("It's not meant to protect secrets; it's meant to protect officials." -- Yes, Minister)

"It is pretty ironic."

While it's true that just because the concept was invented on the basis of a fraudulent and false premise doesn't prove that true conditions can't exist to fit the initial concept, it's equally true that we have absolute proof that the concept of allowing courts to let pass a "state secrets" claim without examination will lead, at least at times, to the government claim be fraudulent.

That shouldn't be allowed to happen, I think we agree, and I simply wish to emphasize that the very case that created the precedent that allowed the government to get away with lying and winning a legal case it shouldn't have -- does anyone want to defend lying and making false claims about non-existent secrets, for the purpose of a cover-up? -- was itself a fraud and a lie.

This strikes me as something stronger than "ironic." To me it demonstrates that the premise of an unexamined govermental right to keep things secret is itself indefensible.

At this point, Bush can't let a case like el-Masri's or Arar's (or even, really Padilla's) go forward. He will be exposed as a war criminal by every single country that recognizes such, and the cry to have him tried him tried at the Hague will be enormous. It may not get far in this country, but if he were tried in absentia and found guilty, the reprecussions would be huge.

Color me completely unimpressed with the arguments in favor of this privilege. Or, rather, with the consequences of the privilege. I'm perfectly fine with allowing the government to withhold evidence that might compromise national security. The consequence, though, should absolutely not be that the case is dismissed. Rather, what should happen is that there should be an adverse inference against the government in any civil suit.

Cases under the Detainee Treatment Act just barely squeaked by yesterday, the DC Circuit rejecting the government's position -- by a 5-5 vote -- on the question of what is the record of review. Check out Judge Randolph's http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/06-1197c.pdf>opinion (pdf) on state secrets.

I guess I was really thinking of Judge Henderson's opinion. Hell, read them all.

IANAL, but aren't there already existing remedies for these situations in civil and criminal cases? It must occur frequently that either plaintiff or defendant has some evidence that has material bearing on a case, but that will cause irreparable harm if disclosed in public. Courts must have existing mechanisms to allow full attorney/bench review of evidence while compelling all privileged parties to secrecy.
Basically, (echoing posters above) why would we create such an exception, especially for the executive branch? Seems like something that would have made the framers shudder.

Im constantly waiting for the 'originalist' Constitutional scholars on the right to start screaming about Executive Privilege, State Secrets, etc, that have no origin in the text of the Constitution itself.
You know, the ones that always pop up to tell us how the Department of Education is illegitimate bc it doesn't have its own Article.

Turns out, when the penumbras start saying what they want to hear, most of 'em don't seem to mind.

Long overdue. Bush and Cheney have been hiding their criminality through this vehicle blatantly.

While I am here at this fine establishment,
Today is Blogroll amnesty day,or tomorrow, whatever.
I am adding you to my Blogroll as soon as I finish this comment.I would greatly appreciate you returning the favor.
Thank you,
Busted
http://ornerybastard.blogspot.com/


I will be back, you got some good stuff here and I have been in a goddamn rut lately.

Long overdue. Bush and Cheney have been hiding their criminality through this vehicle blatantly.

Of course, if the legislation passes, there will be a signing statement to the effect that it can be ignored because it conflicts with the "inherent powers" of the President as Commander-in-Chief to safeguard national security, blah, blah, blah.

I support this legislation, but the only way we will get to the botton of this Administration's criminality is a comprehensive way is if the next president (Obama, I hope) establishes what I call a "Post-9/11 Commission" to investigate the abuses and propose comprehensive reforms.

The bitter truth is that Bush & Cheney have so degraded our legal system that an inquiry similar to Argentina's after its "dirty war," or post-aparteid South Africa, is essential to restore a sense of accountability. Even if they are not criminally prosecuted, the best revenge will be relentless exposure of their wrongdoing. That way Bush's last refuge from disgrace: "the verdict of history," will be destroyed.

Im constantly waiting for the 'originalist' Constitutional scholars on the right to start screaming about Executive Privilege, State Secrets, etc, that have no origin in the text of the Constitution itself.

No one complains about the refs when their team is winning.

Movement 'conservatism' has the same intellectual content as being, say, a Milwaukee Brewers fan.

Throw away your Burke and Oakeshott, and get a big foam 'We're #1' finger, because the dead Vince Lombardi (Winning isn't everything, it's the only thing) has done from beyond the grave what Jeff Davis, Hitler, and Stalin could not do alive -- destroy the Republic.

Of course, if the legislation passes, there will be a signing statement to the effect that it can be ignored because it conflicts with the "inherent powers" of the President as Commander-in-Chief to safeguard national security, blah, blah, blah.
A signing statement wouldn't work at all in this case. The law CANNOT be ignored by Bush (or other President). It clearly states that refusing to comply means an automatic loss on that issue in the case. Refusing to comply on "Article II" grounds is the same as not complying. Thus, the government loses on that issue. The law is immune to such a signing statement as you indicate.
I support this legislation, but the only way we will get to the botton of this Administration's criminality is a comprehensive way is if the next president (Obama, I hope) establishes what I call a "Post-9/11 Commission" to investigate the abuses and propose comprehensive reforms.
I'd be equallly happy if the next President simply declassified virtually EVERYTHING that Bush/Cheney classified that has no legitimate national security aspect, as well as everything that is classified (EVERYTHING) that is 20 years old or more.

he law is immune to such a signing statement as you indicate.

And who enforces the judgement against the President?

Lex est, quod rex vult.

The Republic died on 12/12/2000.

Do you folks believe American Right-Wingers and the Republican Party know anything about "smaller government"?

Absentem laedit, qui cum ebrio litigat

State secrets? Bloggers blog roles or just things with nothing better to do?

They don't poison drunks or torture or kill them, really.

Demo Mock:

Abusus non tollit usum

Acta est fabula

Demo Mock:

Abusus non tollit usum

Acta est fabula

Demo Mock:

Abusus non tollit usum

Acta est fabula

Demo Mock:

Abusus non tollit usum

Acta est fabula

"Do you folks believe American Right-Wingers and the Republican Party know anything about "smaller government"?"

No. The Republican Party has no consciousness; only individuals do. Similarly, "American Right-Wingers" is a concept, and whichever yours is, it's in your head.

Believing that groupings which have no consciousness, and thus no single set of beliefs, do, is a major category error, which will consistently lead to major confusion.

It tends, observably, to lead to conflation of one's false notion of a Single Platonic Member Of The Grouping, which exists only in your head, with real members of that grouping.

Often it leads to ignoring the actual statements and beliefs of given members of said grouping, in favor of the voices in one's head.

I don't recommend going with this category error, extremely common though it is.

The posting are from going back button. Sorry.

This makes so much sense that I suspect it will never be enacted. This is, after all, how real-world litigation works. You have to identify things that are privileged and "log" them (privilege logs are the bane of many associates' existence).

Second, remember that the privilege belongs to the government, not to the bush administration. in theory, a new administration could waive parts of it. that might be a question worth asking the two campaigns.

Believing that groupings which have no consciousness, and thus no single set of beliefs, do, is a major category error, which will consistently lead to major confusion.

This is wrong. Groupings may not have a "consciousness", but do have a "single set of beliefs": Planned Parenthood is for contraception education and abortion rights, Operation "Rescue" is opposed to both. The NRA is for the right to bear arms. Christians believe that Christ is the Messiah.

It's possible to overlay a belief onto a grouping that the grouping, per se, doesn't hold, but the grouping does have some shared belief (even if it's "Playing Magic: The Gathering is fun!"), or it wouldn't exist.

"Groupings may not have a 'consciousness', but do have a 'single set of beliefs'"

No, they don't. They have a set of individual beliefs which overlap. The overlapping beliefs are shared. Sharing some beliefs with others does not, in fact, grant them a single, unified, set of beliefs.

That's the category error.

It's concluding that because members of a set share a characteristic, that they share all relevant characteristics (in this case, a single, unitary, set of political beliefs).

This is a fallacy. A category error. A falsehood.

And it's one which an awful lot of people concerned about politics fall into: the belief that a member of Set X must adhere to one single set of beliefs, which all other members of Set X share, simply by identifying as a member of Set X, or by dint of holding a single identified belief.

Shared beliefs aren't "a single set of beliefs."

All Republicans, or all Democrats, do not hold "a single set of beliefs."

This isn't a political point: it's set theory. It's a third-grade Venn Diagram.

It's odd having to argue it with grown-ups.

Back in reality, Republicans don't all homogenously hold to a single set of agreed beliefs, and neither do Democrats. Instead, they are made up of a large number of subsets of overlapping and non-overlapping beliefs, including people who, gasphorror, overlap with some beliefs across party lines while not agreeing with some beliefs within their party lines.

So thinking that All Members Of Set A or Set B Believe In Subset 1 is wrong.

Democrats don't have to believe X, just because a majority of them do.

Republicans don't have to believe Y, just because a majority of them do.

Pinky-swear.

But people keep insisting otherwise, no matter the evidence, and no matter the sheer illogic.

Emotional prejudice trumps fact and logic for many people in many situations.

It leaves talking about politics incredibly screwed-up.

To bring it back to where we started on this point, someotherdude wrote:

Do you folks believe American Right-Wingers and the Republican Party know anything about "smaller government"?
The set of "American right-wingers," assuming that's what's meant, and not some organized group of which using caps to indicate a proper, rather than common, noun, which might be a possible interpretation, includes an extremely large set of people, of many disparate beliefs.

So, also, the set of members of "the Republican Party" includes an extremely large set of people, of many disparate beliefs.

This is an extremely simple, basic, and elementary point.

But people keep introducing the concept that, somehow, we should consider all Democrats and all Republicans, and all left-wingers and right-wingers, as interchangeable clones.

This has the extra-crispy, salty, yummy, benefit of allowing us to be abusive to the nearest representative of Set A or B, since they, naturally, hold identical beliefs and responsibility as the most extremist, and responsible, person on their side, so we can be abusive to everyone we run into whom we disagree with, since, after all, they're the same as Hitler/Mao/Rumsfeld/Sheehan/Bush/Gore/ANSWER/Michelle Malkin.

So the psychology is obvious: it makes it easy to indulge one's anger.

But it's not a useful approach to analysis or understanding, or, for that matter, debate or politics.

Of course, maybe I'm wrong. I like to think I'm open to good argument. Maybe I'm just over-emotional about this rational approach thing.

Even if they are not criminally prosecuted, the best revenge will be relentless exposure of their wrongdoing. That way Bush's last refuge from disgrace: "the verdict of history," will be destroyed.

Historically, there has been a strong tension between truth and reconciliation commissions and successful prosecution. Prosecutors are often not interested in the whole truth: they're interested in getting only enough testimony to roll up a chain of command with threats of imprisonment in order to nail the highest ranking people they can. Consequently, they use selective immunity as a chit to reach their overarching goal. In contrast, TR commissions
have to offer immunity to lots of people; you rarely see prosecutions emerging from a TR process. At least that's what I remember from my "War Crimes and Genocide" class.

I'm not disagreeing with you about the utility of a truth commission at all though; I'm just pointing out that it involves tradeoffs.

I'm not disagreeing with you about the utility of a truth commission at all though; I'm just pointing out that it involves tradeoffs.
If the power elites didn't prosecute Nixon, they won't go after Bush & Cheney, much as they should. The only want to harm these people is to expose and disgrace them. At least that's how I see it.

Gary Farber: Back in reality, Republicans don't all homogenously hold to a single set of agreed beliefs, and neither do Democrats. Instead, they are made up of a large number of subsets of overlapping and non-overlapping beliefs, including people who, gasphorror, overlap with some beliefs across party lines while not agreeing with some beliefs within their party lines.

This is trivially true. It's also useless. "Republican" and "Democrat" aren't accidental, or incidental, labels in the spheres of politics, sociology, ideology or anything similar. They are deliberately-chosen self-descriptors by people who, willingly and voluntarily, are ascribing themselves part of a larger grouping.

What you're saying is that all group descriptors lack any kind of meaningful descriptive power. That one is as apt to understand someone's political views by the descriptors "Republican" or "Democrat" as one is the descriptor "Woman", or "Black", or "Kitten-Fancier", or "Lover of Star Trek", and that they all mean the same thing [i.e. nothing]. This is crap. The fact that "Republican" or "Democrat" are, gasphorror, somewhat heterogeneous descriptors doesn't change the fact that they are, equally gasphorror, actually useful terms which map, in a relatively coherent fashion, onto a political ideology, or collection of ideologies if you prefer.

This doesn't mean that all "Republicans" or "Democrats" are identical, by any means; consider the plight of the "pro-choice Republican" or the "pro-life Democrat", to take a simple example. But arguing that all groupings are fundamentally meaningless is way, way, waaaaay -- gasphorror for effect -- overkill. In particular, the ideology variously described as "Movement conservatism", "American Right-Wing", etc., is known for a high degree of homogeneity, such that anyone so self-described is, for the most part, publicly declaring their allegiances towards numerous fairly specific ideals. Less hifalutin'ly, a voluntary grouping has meaning, even if you'd prefer it didn't. It's not perfect, but what is?

Mind you, you're perfectly free to insist that we're all snowflakes, unique and individual and perfect in our own ways, and that all groupings are arbitrary happenstances which couldn't possibly correlate with anything in the real world because that might cause us to deviate from our special perfectness. That is, in its own way, correct. I don't just see any point in vision so narrow it misses the forest for the chlorophyll.

This is, after all, how real-world litigation works. You have to identify things that are privileged and "log" them

No, how real-world litigtion works is that the defense asserts that everything sought in discovery is privileged, confidential, work product, trade secret, irrelvant, harrassing, and unduly burdensome. The plaintiff brings a motion to compel; the defense responds indignantly with a demand that opposing counsel be sanctioned. Six motions later, the case is settled without anything being produced, and on the condition that plaintiff execute a stern confidentiality agreement. I'd give you concrete examples, but I'm precluded by various confidentiality agreements . . .

"What you're saying is that all group descriptors lack any kind of meaningful descriptive power."

Not in the slightest. What I'm saying is what I said, which is not that at all.

I could elaborate, but, really, since I said nothing of the kind, it seems unnecessary.

But this much: I pointed out that overlapping sets aren't identical sets. That's all. You're claiming I asserted that sets never overlap.

I said nothing whatever of the kind, of course. Group descriptors have plenty of use, and are a necessity.

The perfectly simple point is that group descriptors only tell you a limited amount about an individual.

Why people find themselves driven so madly to argue with this point, and attempt to refute it, I'm not quite sure.

But claiming that "what you're saying is that all group descriptors lack any kind of meaningful descriptive power" is simply completely false.

I'd be equallly happy if the next President simply declassified virtually EVERYTHING that Bush/Cheney classified that has no legitimate national security aspect, as well as everything that is classified (EVERYTHING) that is 20 years old or more.

Have to say, I'm not tremendously angry about the determination of the government to keep, for example, Po/Be initiator design secret. Or the names of FBI organised crime informants.

I'd be equallly happy if the next President simply declassified virtually EVERYTHING that Bush/Cheney classified that has no legitimate national security aspect, as well as everything that is classified (EVERYTHING) that is 20 years old or more.

Have to say, I'm not tremendously angry about the determination of the government to keep, for example, Po/Be initiator design secret. Or the names of FBI organised crime informants.

So, ajay, you're saying that warhead design and criminal informants have "no legitimate national security aspect"?

Could you elaborate?

On second thought, you were doubtless suggesting that "as well as everything that is classified (EVERYTHING) that is 20 years old or more" isn't a long enough time period for some material, so never mind.

Check out Judge Randolph's opinion (pdf) on state secrets.

Charleycarp, the link you posted allows access to your PACER account...and given how much PACER costs, I'm sure you don't want people wandering around in there.

Maybe someone with admin powers could remove the link from his comment?

I’m sure many of the “small-government” right-wingers despise the way Bush has expanded the role of the Executive and the State, I just can’t find the disgust in writing.

I’ve read their horror when the State engages in social welfare projects, or the rights of individuals to own semi-automatic weapons, however their silence is quite deafening when it concerns right-wing authority figures stripping the rights of individuals.

The perfectly simple point is that group descriptors only tell you a limited amount about an individual.

I agree, and if you'd limited yourself to that point I wouldn't have responded. You didn't, though; you made an argument which -- on its own face -- argues that group descriptors are worthless. F'rex...

Believing that groupings which have no consciousness, and thus no single set of beliefs, do, is a major category error, which will consistently lead to major confusion.

...is true, but useless in context. Of course no grouping has a single set of beliefs. So what? Do you really expect anyone to walk through the entire membership of the Republican party, let alone people who self-identify as Republicans, saying "Ok, Phil believes X. Barry believes X. George believes X. Fred believes kinda-X..." ad nauseum? It's a given that no grouping has a perfectly homogeneous set of beliefs, but that's a) trivial, and b) not actually a category error. It's a category error to conflate the Grouping with the Platonic Individual, but that's a separate issue; what you're referring to is an empirical fact which, as you can quickly check, is itself not always valid depending on how one defines the terms. Anyway, it's completely true and completely pointless; what's relevant is whether the given group is (sufficiently) homogeneous for that particular viewpoint, something which your posts rather copiously fail to address.* By raising the specter of possible groups for possible nonhomogeneity you're arguing that in fact this applies to the case at hand, which is the argument to which I alluded above.

Well, either that, or you're engaging in the mother of all non sequiturs. I'd prefer to think that you were engaging in a logical error yourself -- and one which, I hate to say, I think you have a history of** -- than to think that you just spent three posts engaging in a trivial-but-irrelevant digression as if it were germane to the question.

Or maybe you'd prefer it if I put the counter-counter-argument in another way: if all you meant was the sentence I quoted at the top, no further comments were necessary. The reiteration actually weakens your position, by erroneously strengthening the argument -- and I note again it's the argument I'm taking issue with -- beyond the point at which you apparently meant to stop.

[Mind, the gratuitously self-congratulatory "Of course, maybe I'm wrong. I like to think I'm open to good argument. Maybe I'm just over-emotional about this rational approach thing." didn't help, fwiw.]

* Arguably, which they address through failing to address. If Alice, Bob, Carol and Dan are in a group and you take the pains to say, at great length, that Alice is awesome and Bob is awesome and Carol is awesome but say absolutely nothing about Dan, then -- whether you will it or not -- you're making an implied argument about the awesomeness of Dan.

** Since that might sound a little harsh, let me clarify: I heartily respect your crusade to regard everyone as individuals on an individual level. It's a Sisyphean task and one that rarely gets the credit it deserves. I've noticed though that, IMO, you tend to take this too far, e.g. the point you reiterate that "The New York Times" has no consciousness when referring to an NYT op-ed. [Or that "Republicans" don't exist in any meaningful ideological capacity, as you seem to have done above.] This is certainly but there's a level beyond which denying institutional existence is not just contrarian but actively harmful to one's ability to process events, or engage in debates about them.

"Do you really expect anyone to walk through the entire membership of the Republican party, let alone people who self-identify as Republicans, saying "Ok, Phil believes X. Barry believes X. George believes X. Fred believes kinda-X..." ad nauseum?"

No.

I merely suggest that people not act, speak, or write, under the working assumption that members of a large and non-homogenous group -- such as "Democrats" and "Republicans" -- are homogenous clones.

I brought this up in response to a comment -- one of many such comments posted here on more or less a daily basis by one person or another, and with endlessly greater frequency elsewhere, of course -- that plainly did so: "Do you folks believe American Right-Wingers and the Republican Party know anything about 'smaller government'?"

Thus, sequitur, and no logical error.

"...you made an argument which -- on its own face -- argues that group descriptors are worthless."

And yet I didn't. I'm not responsible for other what I say, and insisting you know what my argument really means is a terribly familiar argument coming from one regular here, but it's not usually you, Anarch.

You're welcome to disagree with what I say, but I'm afraid I won't agree that you know what I'm really saying, and I don't. Feel free to argue with any words of mine you quote, but kindly don't offer a rewrite, and then refute your own argument, insisting it's mine, when I continue to observe it's an argument I have never made and don't remotely agree with.

"Or that 'Republicans' don't exist in any meaningful ideological capacity, as you seem to have done above"

Again, you're arguing with some voices in your head here. Sorry.

Gary:

And yet I didn't. I'm not responsible for other what I say, and insisting you know what my argument really means is a terribly familiar argument coming from one regular here, but it's not usually you, Anarch.

Believing that groupings which have no consciousness, and thus no single set of beliefs, do, is a major category error, which will consistently lead to major confusion.

What Anarch said.

This is a simple case where one should ask for clarification before making an assumption. Someotherdude was not very precise. Your assumption was that he believes "American Right-Wingers and the Republican Party" have a consciousness and/or that all individuals within these groupings think identically. This assumption seems to come from one word: "know." That may have been his working assumption. Perhaps that is the best literal reading of his comment. But common sense says he doesn't really think that and he was being imprecise. A mere clarifying comment would have moved the discussion forward far better than a logic lesson, IMHO.

Just for purposes of feedback, the initial comments directed at someotherdude appear on their face to be condescending and petty. I don't think that was the intent (at least I am not assuming that). My point is that a clarifying comment would have cleared up whether someotherdude committed a category error or was simply being rhetorical and imprecise.

"Someotherdude was not very precise. Your assumption was that he believes 'American Right-Wingers and the Republican Party' have a consciousness and/or that all individuals within these groupings think identically."

Not at all. I made no assumptions whatever. You are asserting that I made assumptions about what someotherdude believes. This is wrong. I have no thoughts whatever on what someotherdude believes.

I would never make an assumption about what someone believes.

I write about what people write.

And I do my best to try to get imprecise writers to clarify what it is they're saying.

Thus my whole point.

What someotherdue believes is something I can never know. I only know what people write.

And I only respond to what people write.

My only plaint is would that others so restrict themselves, rather than going off into fancies of imagination about what other people Must Really Believe.

My only plaint is would that others so restrict themselves, rather than going off into fancies of imagination about what other people Must Really Believe.

To which my only comment can be, that Brutus is an honorable man; for to believe otherwise would be to respond to something other than what was written.

This entire latter part of the thread is why I mostly ignore SOD. It's mostly some snide comment or other, practically begging for a fight, but since I mostly have no idea what he means by the single sentence he's blurted into a contextual void, there's nothing to grab onto.

I'm guessing the context is mostly whatever he happens to be reading at the time, but there's really no telling until such time as he decides to share.

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