So Gross And Notorious An Act Of Despotism

by guest poster Gary Farber.

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. ...

-- 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765)

I am not a lawyer; I'm just a guy who has cared passionately about civil liberties and our Constitution all his life, and who has read a lot of court decisions.

I'm quoting Blackstone, above, from a specific court decision, in fact: Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. 

I'm quoting Justice Scalia quoting Blackstone, with whom Justice Stevens joined in dissenting. 

Which brings to yesterday's decision, Mohamed et al. v. Jeppesen Dataplan, Inc., by the Ninth Circuit Court of Appeals.

Background:

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charges that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation. According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."

Shortly after the suit was filed, the government intervened and inappropriately asserted the "state secrets privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.

And now, unless the Supreme Court overturns the 9th Circuit, the "state secrets privilege" has become so sweeping as to not just close the doors of justice to torture victims, but to anyone in any case the U.S. government decides to assert that "state secrets" are involved. 

Bang, according to the 9th, you're out of luck, in that case.  Whomever you are. 

Including you.

To explain this absurd and intolerable injustice, we have to go back to the origin of the state secrets doctrine itself, in United States v. Reynolds in 1954.

What happened then?

The great Garry Wills wrote "Why The Government Can Legally Lie," reviewing two books on the events of U.S. v. Reynolds; it's now largely behind the New York Review Of Books paywall, but currently the entire article can and should be read here.

To quote his summary:

[...] On October 6, 1948, an Air Force plane exploded and fell out of the sky in Georgia. It was doing experimental work on a guided missile system called Banshee. Five of the eight crew members aboard and four of the five civilians died.

The other four parachuted to safety. It came out in an interview with the one surviving civilian that he and his non–Air Force fellows had not been instructed in the use of escape hatches; and there had been trouble with fires on other B-29s, so there seemed a prima facie case of criminal neglect in the civilians' deaths. Three of them were electrical engineers working on Banshee under contract with the Radio Company of America (RCA). Their young widows decided to sue the Air Force in a Pennsylvania district court. Their lawyer, Charles Biddle, asked for information in the Air Force's keeping—the official accident report and depositions from the three surviving crewmen. The Air Force refused to surrender the documents, saying that the report was classified and the depositions were "hearsay." If the plaintiffs wanted such "hearsay," they could take their own depositions from the survivors.

[...]

All Biddle knew at this point was that the Air Force showed a ferocious determination not to give up the documents that were requested. Could they really have state secrets in them? Was the accident caused by secret Banshee activities? Did the Air Force depositions of survivors have things the survivors would not say now to the plaintiffs' lawyers? There was no way of knowing any of this, since the government blocked all access to information.

[...]

The story seemed to be over, and it was—for roughly half a century (forty-seven years).

The Accident Report Revealed

The daughter of one of the RCA engineers who died in the crash, Judy Palya Loether, who was only seven weeks old at the time of the accident, grew up with a great curiosity about the father she never knew. She was also a constant surfer of all things online. In 2000, while looking around on her computer for information on what her father did and how he died, she came across an entry, Accident-Report.com, which promised to supply people with reports of government airplane crashes. She did not know that there had been a Supreme Court case that hinged on the production of this report, but she wanted to know if she could learn more about her father's work.

[...]

The front tire bay, one of the escape routes, was blocked, and the opening of the bomb bay, the main escape route, created a drag that increased the plane's spin and threatened to stall it. The copilot kicked his way through the front wheel bay, but the pilot's chute caught on the plane and was disabled as he got out. Only two of the five civilians were close enough to the front bay to follow the copilot out, but one of them, Judy Loether's father, had died because his parachute had not fully opened. This story was disgraceful to the Air Force, and that, not national security, explains the hard determination of the government not to let the story come out. The only protection of the wronged women would have been a Supreme Court that would follow the path of the excellent lower judgments and demand a look at the evidence in camera. The Court failed that test.

[...]

Between 1977 and 2001 there were sixty-two cases where the government withheld evidence by citing U.S. v. Reynolds, and in using the case some courts not only reaffirmed the decision but broadened its application by a "mosaic theory," saying that information not directly concerned with national security may be pieced together with other pieces of the "mosaic" to give a different picture. Only government experts, not lay observers or even judges, are qualified to see such technical connections. By this test, almost any information can be presumed to have a subtle connection with national security. The government now had a greater stake than ever in retaining the validity of U.S. v. Reynolds.

[...]

The case now was, finally, over.

But U.S. v. Reynolds is one part of a different mosaic—a larger picture of executive usurpation that has sealed off the presidency behind walls of secrecy, unaccountability, and extreme legal theories of detention, torture, defiance of Congress, and spying on citizens. It is as part of that larger scene that U.S. v. Reynolds remains important, as a major early step in letting governments lie with court sanction.

U.S. v. Reynolds was wrongly decided.  It was based on a fraud, and established the basis for the government to simply claim "state secrets privilege" and dismiss a case. 

No matter that the essense of U.S. v. Reynolds was a lie by the United States Air Force, a lie invoking secrets when what was primarily at stake was avoiding governmental embarassment.

This "state secrets" doctrine was established to allow the government to lie, and not have to prove its case in court.

Now Mohamed et al. v. Jeppesen Dataplan, Inc. says that the government can prevent cases from even being heard.

As Judge Fisher's majority opinion states (I'm editing out the legal cites; you can find them in the linked decision):

[...] But “the state secrets doctrine does not represent a surrender of judicial control over access to the courts.” [...] Rather, “to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation.”

The majority opinion's core argument is this:

[...] Third, and relevant here, even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because — privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses — litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets. 

And before long, we have arrived at:

We are precluded from explaining precisely which matters the privilege covers lest we jeopardize the secrets we are bound to protect.  [...] Although we are necessarily precluded from explaining precisely why this case cannot be litigated without risking disclosure of state secrets, or the nature of the harm to national security that we are convinced would result from further litigation, we are able to offer a few observations.

First, we recognize that plaintiffs have proffered hundreds of pages of publicly available documents, many catalogued in the dissent’s Appendix, that they say corroborate some of their allegations concerning Jeppesen’s alleged participation in aspects of the extraordinary rendition program.

As the government has acknowledged, its claim of privilege does not extend to public documents. Accordingly, we do not hold that any of the documents plaintiffs have submitted are subject to the privilege; rather, we conclude that even assuming plaintiffs could establish their entire case solely through nonprivileged evidence — unlikely as that may be — any effort by Jeppesen to defend would unjustifiably risk disclosure of state secrets.

Any effort.  Even when you can establish [your] entire case solely through nonprivileged evidence, you can't sue if the government invokes "state secrets privilege."

Even the majority opinion by Judge Fisher is so uneasy about this ruling that it ordered the government to pay court costs, and concluded with an entire, quite extraordinary, section on:

V. OTHER REMEDIES
Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warrantedfor any of the plaintiffs.

The court offered four options. 

First, the executive branch can police itself.

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in theUnited States during World War II.

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch.

[...]

Third, Congress also has the power to enact private bills.

[...]

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here.

The desperation with which the court seeks to hand off justice to some other entity is palpable.

Really, the Congress should enact a private bill to deliver justice each time it believes the Executive has gotten it wrong?  That's a solution?

From the dissent, written by Judge Hawkins, joined by Judges Schroeder, Canby, Thomas, and Paex: 

[...]  the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

[...]

The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law.

[...]

The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets.

[...]

When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit.

What should have been decided instead?

The majority’s analysis here is premature. This court should not determine that there is no feasible way to litigate Jeppesen’s liability without disclosing state secrets; such a determination is the district court’s to make once a responsive pleading has been filed, or discovery requests made. We should remand for the government to assert the privilege with respect to secret evidence, and for the district court to determine what evidence is privileged and whether any such evidence is indispensable either to Plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

As for those "other remedies" the majority so desperately clung to:

Conclusion

The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief.

Suggesting, for example, that the Executive could “honor the fundamental principles of justice” by determining “whether plaintiffs’ claims have merit,” disregards the concept of checks and balances. Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered, elevates the impractical to the point of absurdity.

Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” leaves to the legislative branch claims which the federal courts are better equipped to handle.

Why, indeed, have courts at all if the executive can be trusted to police itself?

Judge Hawkins of the original three-judge panel got it right.

And what might the executive do under cover of complete legal secrecy?  Perhaps this:

[...] Plaintiff Binyam Mohamed, a 28-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in Pakistan on immigration charges. Mohamed was allegedly flown to Morocco under conditions similar to those described above, where he claims he was transferred to the custody of Moroccan security agents. These Moroccan authorities allegedly subjected Mohamed to “severe physical and psychological torture,” including routinely beating him and breaking his bones. He says they cut him with a scalpel all over his body, including on his penis, and poured “hot stinging liquid” into the open wounds. He was blindfolded and handcuffed while being made “to listen to extremely loud music day and night.”

After 18 months in Moroccan custody, Mohamed was allegedly transferred back to American custody and flown to Afghanistan. He claims he was detained there in a CIA “dark prison” where he was kept in “near permanent darkness” and subjected to loud noise, such as the recorded screams of women and children, 24 hours a day. Mohamed was fed sparingly and irregularly and in four months he lost between 40 and 60 pounds. Eventually, Mohamed was transferred to the U.S. military prison at Guantanamo Bay, Cuba, where he remained for nearly five years. He was released and returned to the United Kingdom during the pendency of this appeal.

As Ben Wizer, who argued for the plaintiffs, wrote:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

Neither will we, as citizens, who stood for this.

Some additional links. Emptywheel. Greenwald. Brad Friedman.

UPDATE, 9/11/10, 6:27 p.m.: Adam Serwer wrote a good post yesterday:

After Wednesday's ruling, it should be clear that we're past the point of "when the president does it, it's not illegal." The law of the land now is that when anyone in our professional intelligence services crosses the line in the name of national security, it's not illegal, or it's illegal in name only. To be able break the law with no credible threat of sanction is about the same as having no law at all.

And suggests that it's up to Congress to fix this:

[...] Basically what has to happen is the executive has to make Congress angry enough to rein in the executive branch, because at this point Congress can shut down the party whenever it wants. Between skittish Democrats and Republicans who think the only possible abuses of power come from the expansion of the welfare state, it's not likely to happen soon. But it's the only way I see things changing.

What do you think?

UPDATE, 9/12/10, 2:02 a.m.:

Belatedly, I see that Andrew Sullivan has written powerfully on Jeppesen: 

[...] Marc Ambinder reports on the dictatorial powers held by many in government and upheld yesterday by a judiciary that gives unaccountable power - even the power to torture and kill - a drop-shadow, not a check. Marc has been following this state secrets issue for a long time, sensing, before some others did, that it was the key to Obama's protection of Bush's torturers and his objective disdain for the tortured.

[...]

And Obama? I see no daylight between him and Clinton any more on this. As Glenn notes, Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration. Yes, torture ended. That matters a huge amount. He will always deserve credit for that. Of course, I have to trust him on this, since there is precious little way for someone outside the government to test this or know this for sure.

But Obama's insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny is a sign both of how cold-blooded he can be, but more, I think, of how powerful the security state now is, how it can protect itself, how it exists independently of any real accountability to anyone, how even the metrics of judging it are beyond the citizen's reach or understanding.

I tried valiantly not to believe this of Holder and Obama for months; I tried to see their legitimate concerns about exposing a war machine when it is still at war; I understand the need for some extraordinary renditions; and the necessity for executive power in emergencies to act swiftly, as the Founders intended. Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won't happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn't only allow torture; it rewards it. 

[...]

Have I been radicalized by this? You betcha. Because this is so plainly not a nation under the rule of law anymore. And there are very few political issues more important than that. [....]

As I like to quantify: Read The Rest Scale: 3.5 out of 5.

by guest blogger Gary Farber, not Eric Martin.

Comments

[Slartibartfast]

Some more history of the B-29 crash here.

[hairshirthedonist]

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.

[Gary Farber]

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

[hairshirthedonist]

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

[nous]

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.

[Gary Farber]

And Hilzoy's.

[Marty]

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.

[Gary Farber]

"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.

[Tlaloc]

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

[Gary Farber]

A good Times editorial.

[elm]

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.

[elm]

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.

[Gary Farber]

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....

[opit]

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

[Gary Farber]

"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.

[Slartibartfast]

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.

[bobbyp]

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

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

[joel hanes]

Does the name "Valerie Plame" ring a bell?

[Slartibartfast]

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.

[Gary Farber]

"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."

[russell]

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?

[russell]

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

"Why are court proceedings in camera" etc.?

[Gary Farber]

"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.

[Nell]

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...

[Hogan]

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."

[wj]

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.

[Nell]

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.

[Turbulence]

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?

[Rob in CT]

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.

[Ugh]

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.

[Gary Farber]

"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.)

[Nell]

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.

[Gary Farber]

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

[Chancellor Ridcully]

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.

[Gary Farber]

"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.

[Nell]

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... )

[Ralph H.]

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.

[Gary Farber]

Interesting point, Ralph H. Thanks.