It seems unfortunate to me that George Bush’s legacy will leave Obama with countless sophie’s choices where the only way to avoid giving up his precious reasonable moderate image, at least in the eyes of the media, will entail doing genuinely heinous and extremist things. For the first tangible example look to yesterday’s decision to abuse the State Secrets privilege in a torture case. The only justifiable decision here would be to revoke the Bush DoJ’s attempt to use State Secrets to block not only specific evidence but any hearing at all. However, doing so would almost certainly compel a wider investigation and likely criminal charges against former government officials. To avoid being seen as the President who put his last administration on trial Obama must resort to the exact same heinous abuses of power that made the Bush DoJ into a national disgrace.
However, it also seems likely to me that the substantive difference between Obama’s administration and the Bush years will become increasingly evident as time goes on. At the very least, given his past writing, Marty Lederman must be shitting a two story colonial townhouse right now. I have to assume that Lederman and other principled hires at the DoJ will either ensure that decisions like this do not happen again or else he will resign.
I doubt that Marty’s old blog can avoid talking about this decision for much longer, and given their connection to the guy who now has John Yoo’s desk it also seems unlikely that they would write without taking his perspective into account. At the risk of sliding towards Kremlinology I will keep an eye on Balkinization for evidence that principled elements within Obama’s DoJ hope to prevail in steering the administration away from this disastrous and legally indefensible course.
The mood is not happy at Balkinization. The title more or less says it all.
I suspect that the Obama administration will reverse course on this "policy" leftover from Bush, but will do it on their terms and on a timeline dictated by them, not by this particular case.
It took 8 years to fuck things up – it will take more than 4 weeks to clean up the mess.
I was just discussing this in the dregs of last night’s open thread.
Also, don’t forget Hilzoy’s take.
The law does not wait for your timeline or your policy. If this case is dismissed based on the "state secrets" privilege (and only on the privilege), and is not picked up by the 9th Circ., it’s fucking binding precedent.
It has seemed almost like a fetish on the part of Obama to avoid the appearance of wanting to bring Bush Administration criminals to justice.
On one hand, I can see this – because he realizes the media is lined up to misrepresent whatever is done.
On the other – I really wish that last night in the press conf, in response to the idiotic request for him to commit to not prosecute any Bush officials – he would have just said "for me to make that committment, I would have to know that there are officials who broke the law, and who under the law deserve prosecution. Until that determination is made, I can’t say anything."
But I’m going to trust in Obama’s end game for awhile here. He’s shown himself to be smarter than me a numer of times so far.
Why be patient and let Obama have some time to work his way out of an impossible position? I mean, Eric Holder was confirmed last week! Why has everything not changed! Plus, gitmo is still open! Hope and change is more of the same! I say we flay him alive so we can provide rhetorical cover to the folks who cheerleaded these abuses the last eight years. I look forward to providing them the ‘Everyone does it’ ammunition.
Well played, lefties.
I was disappointed by this decision. But also keep in mind that the Obama Administration is having to sort through a lot of stuff.
For example, the case files for detainees at Gitmo are near non-existent. Pertinent info was strewn about in boxes, on desks and computers…there was no central filing system that had each detainee and their paperwork in order. So before we can even get them to their deserved trials, the Obama Administration has to get all that paperwork together so they know exactly who they have and why they are there.
This could be a similar case. Maybe they don’t know all the info yet because they simply cannot find it, and therefore do not want to risk releasing classified info at this time.
Man…one month into a four-year term and people are already lighting the torches…
I don’t agree with Hilzoy, which is unusual for me.
The spaghetti bowl of dark shit that lives under the State Secrets rocks is not something new, it goes way back, and Americans have fashioned themselves a bellicose nation that lies to its own citizens a long time ago. No president can walk in and just pull off the covers in one move.
Liberals … of which I am one … have projected their own attitudes onto Obama. In truth, he didn’t run for president promising to undo the last 75 years worth of national security voodoo. And he is smart enough to tread carefully in that policy area.
Hilzoy is going to have to wait for better remedies in this situation. And it’s not like there aren’t ten other crises biting at our asses right now.
There always is this tendency to underestimate Barack Obama
As for this,
It has seemed almost like a fetish on the part of Obama to avoid the appearance of wanting to bring Bush Administration criminals to justice.
Don’t point your gun at a prince unless you are assured of a kill. (Machiavelli, right?)
Generating the appearance of seeking to bring the Bushies to justice isn’t the goal. Successfully bringing the Bushies to justice is the goal and that probably requires some possum playing.
Bless his heart. Lord knows I know that how he is seen is far and away more important than whether he actually abuses the power. It’s just so sad to me the dirty fucking hippies don’t understand how badly his helpless little hands are tied and refuse to duly commiserate with his powerlessness to do anything about it.
1.) See my above comment on "patience" and the rule of law.
2.) Holder was confirmed last week and then, by all indications, made the conscious decision to continue to rely on the state secrets privilege to throw civil cases out of court. Are you saying that if he had more time he would have, I don’t know, realized his error? Or that President Obama (who has argued against this use of the states secrets doctrine before) hasn’t had enough time to make up his mind?
3.) Imagine if, in his first week, Obama had not ordered the closure of the Guantanamo base detention facility, or had categorically stated in court that the detainees are "illegal combatants." That’s what we’re looking at here – the problem isn’t that there hasn’t been enough "progress," it’s that this legal tactic is a definitive stance. The choice is not "when can we begin to open up the Bush administration’s policy of secrecy, now or later?" The choice is "do we use this handy tool that Bush left for us, even though we (and civil libertarians and Constitutional scholars and etc. etc. etc.) find it to be a dangerous threat to the notion of restitution for government wrongdoing?" Dig?
It is not. This is a civil case, alleging government wrongdoing, not a criminal case where a Gitmo detainee’s status is under question.
@SGEW: And time and time again, I have to point out that Obama is, first and foremost, a technocratic pragmatist who specializes in the art of the possible. How many times has it looked like he was not doing the right thing or not responding appropriately, yet been working to shift the debate in the longterm.
We just had eight years of reflexive ideological rigidity, and I don’t mean to compare you to the Republicans and the Bush administration, because you happen to be (IMHO) on the right side of this issue. Regardless, I am going to give this some time to shake out, and I see no point in providing the right with rhetorical ammunition or further weakening my President from the left. In a few months, if the overall direction of policy has not changed, I will get pissy. For right now, though, I will not get bent out of shape because they had to take a bite of the shit sandwich Bush and company left behind. I’m not going to freak out when Holder’s Justice department has to defend John Yoo, either, so let’s just get that out of the way right now.
My previous comment aside, "state secrets" and the Obama/Biden pre-election platform on such would seem a reasonable question to raise at the next town hall or press conference held by President Obama or Vice-President Biden.
Biden is more likely to give a good quote. Is he scheduled for any upcoming appearances?
Briefly I will point out that your stance about this "setting a precedent" is wrongheaded. Even if it set a precedent that would only mean that if the government AGAIN asked for a case to be dismissed because of state secrets that the courts could follow the decision of this case. But it would take the government making that argument again and we don’t yet know that they will continue to do that.
But to my larger point which is in regards to your quote above the truth is just about everywhere that you can find this story about President Obama’s DOJ reasserting the states secret argument, you also find an article about Eric Holder promising to review each and every case where states secrets has been invoked. So either you haven’t been looking very hard or you are being disengenuous. Rome wasn’t built in a day and changing course in so many areas is for damn sure going to take more than 3 weeks. Have you ever thought that maybe, just MAYBE Eric Holder doesn’t even know right at this moment what state secrets might be revealed in that case and therefore he basically HAS to back the Bush assertion just to be on the safe side until he can look through it himself?
Damn man I know we libruls/progressives have a hard time ever being happy or satisfied but this is fucking ridiculous. Yeah its dissappointing but if you think the shit through its not very surprising and is pretty much understandable. The weird thing is many of us are starting to act like the irrational irresponsible whiny assholes that the right has accused us of being as a hole. Common sense and pragmatism has to factor in at some point and running around with your hair on fire over this decision, to me, is the exact opposite of being realistic.
@Bill White: Always best when you read to the end of a posting, no?
And I should add, I see the same kind of nonsense from the left regarding the stimulus bill. “It isn’t good enough! It should be scrapped and started over! The Republicans got too much in the way of tax cuts! No bill would be better!”
And then I look on my tv, and Senator Bernie Sanders is out there pushing the bill. Apparently Sanders fails the ideological purity test as put forth on left wing blogs.
here is the link to the huffpo story about Holder reviewing all the state secrets cases
As a side note: if anyone has paid attention, I am not in the fainting couch, pearl-clutching brigade (talk about a straw man, btw). In fact, I’m pretty sure that I was the first and strongest "C.T.F.O." partisans.
But I’m not letting go of this one, and I will not forgive this administration if they continue to assert this doctrine. Obviously, I have strong opinions on all of this (ivory tower legal training, A.C.L.U. and A.C.S. member, "living Constitutionalist," Marty Lederman and Scott Horton fanboy (I have their autographs, f’realz)), but here’s the thing: this is why I was such a strong Obama supporter in the first place.
God damn it all.
@Dave: There’s someone one my friend’s list on LJ who has gone there. His LJ is all "Barack Obama is an appeasing centrist who is no better than George Bush" these days. Damn Portlanders…
I feel you, brother.
that should be stapled to the forehead of every lefty blogger out there.
everything we know about Obama suggests that he’s on the right side of this argument. and so far he’s been pretty good about making good on the things he campaigned on. maybe we should all take some deep breaths and admit that we don’t know any of the details about what his long-term strategy is for dealing with the detainees. maybe we could admit that maybe this is an ugly but necessary step towards a better end.
in other words
This is going to piss people off. If the only reason you voted for Obama was for one specific issue, the country would probably be better served if you stopped voting, and I know for a fact that arguing with single issue voters in a weblog is pointless. They don’t do nuance. They have capital T truth on their side, there is no way to appease them other than to do what they want, and even then you will probably fail because you didn’t do what they wanted HOW they wanted you to do it, or fast enough, or… you get the point.
See also, anti-abortion activists.
Obama has been in office for – what? – his third week? Perhaps he’d like to have his office read all the state secrets before he starts tossing them to the press.
Given the piss-poor job the Bush Admin has done in so many other arenas, its not beyond belief that documents are absolutely littered with honest-to-god secret state information. Imagine Obama simply pulling the bedsheet back and outing half a dozen CIA agents by accident, simply because of sloppy Bush paper keeping. Imagine Obama releasing Bush reports that are loaded with factual inaccuracies or outright bullshit lies. Maybe some of these reports are unfinished or contradictory. Who knows?
At the very least let Obama get his shit together before you start crucifying him. :-p
Honestly I think there is a very good reason for the disconnect. Most of the bloggers don’t realize that this stimulus bill has to have 60 votes NO MATTER WHAT. That means that you can’t ram it through, you can’t force a real filibuster and have that be the end of it. Because of a point of order related to bills that call for deficit spending you have to have 60 votes in the Senate to pass the bill. I was confused about this up until two days ago when Kagro X pointed out why this is.
So on the one hand you have progressives and liberals who are mad (like I was) because they feel like you should just make the bill as good as it can possibly be and then force it on the Republicans and make them do a real filibuster if they want to block it instead of trying to appease them.
On the other hand you have the Democratic Senators who know that in the end no matter what they have to have 60 votes or they won’t get anything. So even though they don’t agree with the stuff that was cut out of the bill they know that if the 3 Republicans don’t vote with them on the final bill then all will be lost.
This is now a zero sum game but really its not that liberals and progressives are being unreasonable. But for that point of order, I too would feel like they should push for something that works instead of accepting something just to win 3 votes. But the truth is they don’t have that option this time. Bernie Sanders isn’t happy about the bill and neither is Barbara Boxer. But they know that they don’t have any choice in the matter at this point. It is what it is.
And in my efforts to further alienate the commentariat, let me also point out that the paradox in the extremity of single-issue voters is that they often are the ones who do the most damage to the cause they profess to love. See abortion clinic bombers, animal rights activists who wreck labs and free test animals, the entire PUMA movement.
@JC re: single issue voters
It’s one thing to say "this sucks and it’s stupid, but there are other things he’s doing right".
It’s another thing altogether to say "this is all somebody else’s fault because he’s got to be ‘seen’ a certain way."
In other words, support him for all the other reasons you want to… just don’t ask me to drink the KoolAid on this.
@smijer: You are illustrating my point perfectly, as I am not asking you to drink any kool-aid. Objectively, the Obama position yesterday sucked. I do not support it. What I am saying is that there is more to play than meets the eye, and that running around screaming “ZOMG OBAMA FAILS” is not only unfair and unrealistic, but short-sighted and counter-productive.
The Right and The Left need each other in order to have enemies. The term "Progressive" was taken by moderate liberals who wanted to move forward and not engage in the old stereotypical tug-of-war that embodies the Right/Left or Republican/Democrat stage-managed political dance.
Yes the Right which owns the Media (somehow invisibly to most citizens) conflates the hated Left with liberal progressives. Of course they do. It works, sadly, and that’s all they go by.
But why don’t progressives stop and realize they AREN’T "lefties" and AREN’T the Left? There is power in words, and progressives have the higher ground if we take it.
Yes. And yes, again.
Sorry, guys, but there’s no slack on this one. Doesn’t mean I’m going to start calling for impeachment, but it’s damn disturbing. You should all be firing off e-mails and calls to Big O to say this was a bad decision.
When Obama said he was going to listen, that meant you should speak up, not shut up. This issue is worth speaking up on.
Having said that, I am too cynical to just state my belief and leave it at that. I will be checking back here regularly and following everything I can on this issue. Should my theory be proven wrong, I will be there with everyone else challenging the Obama Administration’s use of the State Secret Privilege.
@Zifnab: This is my take on it. The DoJ attorney at the hearing was very minimalist, simply stating that the government had not changed its position. They can’t just go against the "state secrets" because they (and I) hate that the concept is law, they need to make sure there are not, in fact, some real state secrets that need to be minded. That kind of review takes time. I’ll withhold judgment for a while to let them go through the Bush disaster file by dirty file.
Also, bear in mind that the court can rule against the government, so the case isn’t decided yet. Furthermore, if at a later point they decide their are no state secrets, which is what folks like Glenzilla are assuming, the administration can always reverse itself and the plaintiffs can refile.
@sgwhiteinfla and John Cole
Yes, you’re right in that I am (probably) . . . overly dramatic? . . . in my response to this one somewhat peculiar and tremendously horrendous case*. The Glenzilla’s hyperbole may have infected my dicta (he does that, y’know), but this does not mean that the reaction itself is overwrought. Yes, I am pretty convinced that the Holder DOJ will draw back from asserting the privilege in each and every case, as the Bush admin did. Yes, they probably had "good reasons." Yes, I probably shouldn’t be surprised (see, e.g., the FISA bill and associated "secrecy" policy). But my point is: they did assert it – in order to dismiss the case entirely. They were given the nuclear option by the Bush administration, and, right out of the gate, they pushed that fucking button.
I’m not upset over their defending against allegations, in general. I’m upset because of the very specific doctrine they are asserting: one that challenges the very notion of government accountability for wrongdoing of any kind. I have been rallying against this particularly broad use of the "state secrets" doctrine for years and I will be god damned if I stop now.
The Obama administration is constitutionally limited to eight years. There will be another administration after it. Capice?
It’s called in camera review, my man. You don’t pre-emptively dismiss the entire case because of it. I recommend some reading on the issue.
Not to be a jerk, but you sound like John Cole circa 2003.
No, you’re right there. That’s the law for you.
*Don’t look up the details if you’re squeamish.
The set of options includes more than "support", "fail to support", "ZOMG ZOMG".
It includes criticizing. It includes making "sophie’s choice" type apologetics for.
My choice is for criticizing and for explicitly rejecting any type of mind-pretzel apologetics.
Particularly since it was the Bush administration’s failures on exactly this score that so poisoned the political landscape. Particularly since this is the top issue for which I looked to Obama for hope of change.
@Svensker: Agreed, dissent is patriotic and reasonable criticism is necessary for our system to function. So please to express your displeasure. The problem, as JC points out, is when you then draw conclusions about "Obama is just like Bush" which is a big leap with little evidence.
Davis X. Machina
There was legislation in the last Congress — Specter-Kennedy, IIRC — to circumscribe and limit the State Secrets privilege. Guessing from the sponsors, it probably had 51 votes or more in the Senate of 2008, but not enough to override a Bush veto.
Is the same or similar bill slated for consideration in this Congress? Is Obama likely to veto it?
@bootlegger: That’s all we can reasonably ask for.
@Zifnab: Agreed, and hope that reason and the rule of law prevail over fear and authoritarianism. In the long run this is all we got.
Obama himself told us time and time again during the campaign that it’s our job to organize and demand change — he can’t and won’t just hand it to us. Fine, maybe they’re playing the long game and this is part of some strategy we don’t know about. Our job isn’t to try to read tea leaves. Our job isn’t to sit back and get comfortable because Obama and his people are smart and probably (hopefully, maybe) know what they’re doing. Our job is to raise hell whenever we see injustice. There are dumb ways and smart ways of doing that ("ZOMG see Obama is just as bad as Bush let’s all vote for Ron Paul next time!!!1!" is a dumb way), but we absolutely need to do it. It’s not pearl-clutching, it’s our democratic duty.
I’m calling the White House and the Justice Department this morning, and also urging my senators to support Pat Leahy’s commission.
"The arc of the moral universe is long but it bends toward justice" — yes, but only because people who love justice keep bending it.
(leaving aside John Brennan’s withdrawal from consideration as an example where civil libertarian criticism may have been productive)
So we shouldn’t put forth any criticism, even if we are (as you put it) "right"? And my posting my criticism on the comment threads on this relatively low traffic blog is now "running around screaming"? Somehow I don’t think you would approve of my joining public protests over Gitmo or torture or the war or global warming denial or homophobia or Tibet or whatever over the last seven years, as those actions were equivalent to bombing an abortion clinic, apparently.
. . .
You’re a very interesting man, Mr. Cole.
Wait, I thought it was because God Willed It.
Good point Jen, love it.
Why do John Cole, Tim F., and the others here have to do all this arm-flailing in defense of the administration, what BHO really meant, what he’ll eventually do, etc. ? His DOJ messed up yesterday and continued advocating an expansive and indefensible reading of the state secrets privilege which would block not just review of discrete pieces of evidence but entire litigation based in whole or in part on such evidence. Balkinization and other "liberal" legal sites criticized this when BushCo did it, and I don’t know why we shouldn’t criticize it now. Political accountability begins with honest criticism when we see our institutions and our elected leaders screw up, and I don’t think we should turn a blind eye to their mistakes or make excuses for them.
This is not actually true. The DOJ could grant immunity to those actors it chose, while still allowing the lawsuits, and the truth, to proceed.
I’m with SGEW on this. It’s a very bad sign.
Hopefully, Obama is taking the Cardozo approach- "Justice is not to be taken by storm. She is to be wooed by slow advances."
I heard Ginsberg quote that line years ago. Never forgot it.
I was also pissed about the craptacularness off the stimulus bill, but then I realized that a lot of the Nelson/Collins amendment will be restored when they reconcile the House version with the Senate version.
I also think we’re going to see wave after wave of spending bills… SCHIP was a stimulus bill there will be more.
Apparently Nixon was born too early. His line in the Frost/Nixon debates and belief “When the president does it, that means that it is not illegal” would find broad bipartisan support in the new millennium.
I get why an Obama wouldn’t make it a top priority, or any priority, to go after the previous Constitution shredding administration. Huge can of worms and there’s plenty of other important work to get done right now. Set your own example.
But at least you could allow some light into that can of worms. And it would be really nice if you didn’t embrace those worms as now your own. I didn’t vote for Obama to Stay the Course. Or to cover George Bush’s ass.
Hilzoy has it right: “So, Obama administration: you screwed this one up in a major, major way.” IOKIIMG doesn’t work for me.
This isn’t really my point, by the way. It’s not so much about holding the Bush administration accountable (a matter upon which I am looking towards Congress, rather than the Executive branch), but about the embrace of a particularly toxic legal strategic position for any administration to take, regardless of the underlying issue (e.g., torture in this case, which, naturally, makes it all that much more contentious).
The Other Steve
I’m finally listening to some podcasts I had downloaded previously.
January 15th, 2009… Economist podcast on the Bush legacy. Wow, these guys really nail it. Talking about problems with Reaganomics, Republicans, Bush politicization, etc.
The Other Steve
Ok, I’m not reading all these messages but apparently Obama is satan because he’s not doing something, or whatever.
WELCOME TO FUCKING REALITY! Sometimes the President is going to ignore the past or sweep it under the rug because he’s got the fucking Present to deal with. And right now that present is a PRETTY BIG FUCKING PROBLEM.
I didn’t vote for Obama because I cared about the past, I voted for Obama because I cared about the future.
The Other Steve
You understand that starting a War Crimes trial against Bush and his cronies, would tie up every single person in the Whitehouse today responding to requests.
It’s the whole fucking reason President Ford pardoned Nixon, because he didn’t have time to deal with that shit.
I DO NOT HAVE A PROBLEM WITH THIS.
What I would have a problem with is people trying to Whitewash the failure of Bush in history texts.
Shit, let them agitate. How much power do they hold? Only the power to help Dems win elections. After that, they are ignored. This is their role, to agitate, in hopes that a few moral and ethical standards that people should expect of their gov’t wafts up from their protest to the powers that be now and then.
This is their role, let them do it, you don’t have to like it — but, frankly, it’s the American way.
As for me, I’m letting Obama do his thing and not getting my panties in a twist (altho I’m not in love with the stimulus bill) — but *somebody* has to do some pushing now and then —– see the Iraq War (DFH’s were right) — just let ’em blow off some steam. They’ve been kicked around by their own party for years. Have a little patience and compassion for some worn out peeps who just want what’s best for the country. You don’t need to worry about them hurting Obama or his agenda b/c nobody is listening to them. Even after they’re proven right.
@SGEW: Um, no. District Courts do not set "binding," or mandatory precedent. Try again.
As SGEW pointed out @45, this is about the future as well as the past.
We have almost no mechanisms left by which we can hold high government officials accountable for wrongdoing. Unless you think everyone we elect from now on is going to be a saint, that’s a huge fucking problem for the future.
@SGEW: We agree. My position is a president (any president) and his administration is not above the Constitution and federal law. Not a good start for this administration to begin by countering that supposition.
Couldn’t care less about George Bush, he’s just a gutless spoiled brat asswipe that belongs in the dustbin of history. A Wiki entry a hundred years from now beginning with “GW Bush elected 43rd president of the United States. WTF were they thinking?”
ladies and gentlemen, boys and girls
this is a 4 year – hopefully 8 year, 20 year – marathon along a course that was set by a reckless administration and is well salted with mines and booby traps. O is looking at what is needed for the duration. This administration can’t sprint off the start and blow itself up. Undoing the malfeasance of the Cheney/Bushies must be approached carefully.
Please settle down. Thank god O is in charge, I would have blown sky-high by Jan 22.
The residue of the Bushist shit-pile leaves the new Prez with the choice between principle and expediency?
How ya figger that’s gonna turn out?
Oops, my bad. I see that the case is not in District Court. Apologies to SGEW.
In my defense, however, I guess I should add that you must have meant "if the case is not picked up by the Supreme Court, since it is already in the 9th Ct. of Appeals.
And even if it’s not picked up by teh SCOTUS, it is only binding precedent in the 9th Circuit. Other circuits are free to devise their own stances, with perhaps using any decision here as merely persuasive authority.
/law school crap.
ladies and gentlemen, boys and girls
this is a 4 year – hopefully 8 year, 20 year – marathon
What color’s the sky where you live?
He’s got AT MOST a year to make substantial headway.
If there’s no significant ‘improvements’ in that time, he’s a one-termer, and mebbe less, depending on the gains the GOPukes will make in ’10…
@tomjones: No worries, mate. I was thinking of searching through my texts on horizontal stare decisis, trying to figure out where I went wrong.
And yeah, your addition to what I meant is correct. Thank goodness we’re not graded on our comments here!
/law school crap
@The Other Steve:
Exactly. And when Obama’s DOJ seeks to dismiss a lawsuit out of hand because the entire case is a "national secret", then I am worried about the future.
Hold his feet to the fire, folks. He ain’t God, he’s just a guy who’s trying to be a decent president. If he needs reminding on what that means, then remind him.
Hell, yes, he’s got a lot on his plate. But he wanted the job, spent a huge shit load of money and time to GET the job. Now he’s got the job — he’s gotta do it.
Dude, I may not agree with you on this concept, but I heartily approve of you making a stink and making a row out of it.
Sharp, focussed objections have the best shot of getting THIS administration to change (which is, a) a hearty change from the last one, and b) a smart way of doing it anyway, as you make it clear that you’re doing it as a supporter of his other policies).
Well, it looks like Tim Geithner caught whatever disease Hank Paulson had; he opens his mouth, and the stock market gets a case of the shits.
Dow down 3.7%, S& P down 3.6, most after 11 am.
Crap. Wrong thread. Sorry…
@SGEW: You raise an interesting point here that seems to be getting lost in much of this analysis:
That throwing out this case is a
Now, if there were a mechanism to compensate Binyam Mohamed outside of the mechanisms of a lawsuit, were the government to pay him some sum akin to a "no-fault" settlement, would that placate we lefties?
Or do we perceive this case as merely an exercise to get at the truth underlying the Bush regime’s abuse of the rendition program?
If the latter, then we should be open to the possibility that the legal system is not really designed or engineered for such endeavors. Hence all the restraints on who and for what limited purposes lawsuits can be brought under the rubric of "standing."
Oh, and the reason I left the Repub party and sorta kinda became a Democrat is because Dems actually sometimes think for themselves. Allow each other to criticize the president, rather than insisting the prez is "Dear Leader" and can’t be criticized because of some tribalist bullshit.
He’s already publicly stated that he screwed up. I have no problem helping him see that he did it again.
@The Other Steve:
Word. At least one person here gets this exactly right.
Person of Choler
Everything bad is, and henceforth will forever be, George Bush’s fault, even Obama’s transgressions.
Thats actually a stinking pile of bullshit both in what would happen if Bush was investigated and in why Ford pardoned Nixon. Before I even waste my time pointing out all the ways that your post fails would you care to expound on either of these points? Tie up every single person in the Whitehouse? Ford pardoning Nixon? Seriously I am willing to wait all day if I have to.
Just Some Fuckhead
John, I think looking at the stimulus solely through the filter of politics is causing you to simplify the issue somewhat. If Bernie Sanders believes the stimulus will work as is or has a better chance of working versus failing, then he’d be responsible to champion it. If he doesn’t believe it will work then he should actively work against it. I don’t think we should be taking the approach that we should do something, anything in regards to a stimulus, regardless of how much we think we need to compromise for the support of three Republican senators. If we create the right bill and it fails to pass because Republicans don’t support it, to me that is preferable to doing the wrong thing so three Republicans support it and having it fail to spur the economy and blow up in our faces, both economically and (way down the list) politically.
I have some philosophical problems with the tax cuts because I’m fiscally responsible. Asking the government to bail out our capitalist system (both banking and private corporations), create jobs where individuals are unable to and stimulate the overall economy while reducing revenue to same government is terrifically insane.
Why Democrats aren’t out there driving that point home is beyond me. Yes, taxes used to be verbotten but now that we expect our government to fully fund our way of life and perpetuate our failed capitalist system, they are simply required.
Exactly. If you are thinking long ball, remember, President Obama will not be the last president. While he may act ethically and not abuse power, we could have a President Winky in our future.
Do you really want to hear Son of Cheney, xx president of the U.S., in the future saying “Even the ultra-liberal, commie-socialist islamofacist loving President Obama recognized and embraced the correct and then thought expansive application of state secrets power. We’re merely building on that. All ur rights belong to us.”
Hmmm. Somehow I doubt it, as it smacks of that scene in The Godfather where they break that guy’s camera then flick a couple of bills at him as they walk away.
I am not so concerned with restitution, I suppose. I am concerned with culpability.
[I must resist turning this thread into a Balkinization kiddy pool for young whippersnappers like myself who fear getting smacked down by someone who’s been practicing ConLaw for thirty years. ;) Besides, Lederman hasn’t been posting there recently, for some reason, and Bart’s getting weird.]
Cut the browbeating crap, man. Steve is 105% right.
The world presents life or death political, economic, military and security challenges every day. We cannot tie up the flimsy government we have in endlessly looking into the navel of criminal prosecution for past governments’ transgressions. The mechanism they gave us was elections, and peaceful replacement of governments.
Criminalization of government will not work. It’s a fool’s errand, and a dead end.
And Obama is smart enough to understand this, and the big trials are not coming. After the year you are about to go through, you will be begging the government to focus on saving your fucking bacon and be very glad that it is not wasting time on backward-looking bullshit.
Fuck every stupid motherfocker here, front pagers included, who want to waste our time and energy on this shit. Just fuck them.
The Other Steve
Who do you think responds to subpoena requests for information?
Alberto Gonzales is gone… but the office remains. Gonzo didn’t get to take the documents home with him when he left.
You have one post to prove me wrong.
While you have an actual point that can be legitimately debated (i.e., should there be criminal prosecution of various Bush administration officials), I would like to point out that this declarative statement is kind of unAmerican. And I very rarely throw that kind of label around.
Rule of Law Not Men and the Declaration of Independence and all that jazz.
Just Some Fuckhead
@TheHatOnMyCat: If we don’t put a stake in the heart of zombie conservatism now, we’re going to be dealing with another lawless Republican president in 20 years, like clockwork.
Failing to hold Nixon accountable led directly to Reagan doing whatever the fuck he wanted with no regard for the law. Failing to hold Reagan accountable led directly to Danger Monkey doing WTFHW. It may be unpleasant and it may tie up a bunch of administration officials but the genie has to be put back in the bottle while we are still nominally not a banana republic whose citizens vote one corrupt junta in to evict the old corrupt junta.
Rule of law must be made paramount again, regardless if we can cynically dismiss it as never actually existing.
YES!!! It will!! Considering every single one of Bush’s fuck-ups were Clinton’s fault, ENJOY!
The Other Steve
Considering we had laws in place, and they ignored those. You are saying "this time if we create new laws, they will follow them… or else we won’t give them a pony."?
Seriously, what is your argument?
We had an election, we made our case… we won our case. We move forward.
Damn, I’d love it if we could say "Karl Rove is blacklisted from government ever again"… but we know that won’t work. Times will turn to good again, they’ll get Jeb Bush in there who will just pardon Karl Rove and wipe whatever progress you think you accomplished clean.
I mean for fucking sake… They tried to appoint Robert Bork to the Supreme Court. THEY HAVE NO SHAME. THEY DO NOT CARE.
The only thing we can do is win the political argument. That is what we need to focus on to keep them out of power.
The Other Steve
Yeah, that sure worked well with Watergate.
You’re just wasting time whining.
Yeah, we have a mechanism for that. It’s called the Voting Booth.
That’s a slogan. It’s not a strategy, or a tactic, or a model for governance. It’s not a path to the future. It’s not the basis for winning elections.
Again, the Voting Booth. That’s where you do it. If for no other reason than if you don’t do it there, nothing else you do is going to matter.
Now I has a sad.
@TheHatOnMyCat: Actually Hat, it would take less government energy to simply get out of the way of the lawsuit and let it proceed. It is against a private contractor anyway. The administration will spend way more time defending their (ab)use of Bush’s state secrets superhero powers if they continue to hold to that position.
I’m also with the folks who argue this is about the future, not the past. Quis custodiet ispsos custodes and all that shit.
But, I’m not convinced Obama plans to continue Bush’s policies just because they weren’t ready in Week 2 to respond to this particular case. I’ll need more evidence before I bust out my pitchfork and torch.
Lederman went to work at the Obama DOJ (in OLC, I think) and Bart’s always weird. I thought they closed comments over there.
Shorter TZ: Salute the Democratic Dear Leader!
I seriously doubt that. Those super powers are deeply and well embedded in every corner of the government, and cherished deeply by too many.
I am not saying you can not be critical of this, I am saying there is a difference between being critical and not liking the decision and being critical, not liking the decision, freaking out and claiming Obama is just like Bush and providing rhetorical cover for the opposition to do political damage and to re-write the Bush years. look at my previous link to Instapundit- that is what they are fucking doing. You think it is a coincidence that Gonzalez and Cheny were all over the airwaves last week? All you are doing by engaging in the freakout right now is giving those guys an assist with their “everyone does it” revisionism.
Second, I have learned over the last few years that when dealing with ideologues and single issue voters, you have to be careful. I agreed with a lot of ideologues in 2003 and 2004, and you see where that ended up. While I agree this was not a position that I would have preferred Obama to take, there may be more to the story.
Third, I hate chaos. I am at heart an introvert, and I still have and always will have authoritarian tendencies. There is a reason I loved being in the military and played team sports my entire life and was in the GOP for several decades. I think Obama is a good egg, I am going to give him some time to right the ship of State. This should not surprise anyone- the John Cole of 2003 shares a number of things with the John Cole of 2009, mainly that I am still John Cole. I was patient with Bush, and I shouldn’t have been. I was also beholden to what I now perceive as a flawed ideology.
Fourth, I hate pained whinging and plaintive wails for “justice.” Maybe I am cruel, but when I hear and read over the top bullshit from people about their pet issue, I want to pour salt in the wounds. When I hear Dobson and the lunatics with their abortion is murder bullshit, I want to go out and have a couple. That may just be the fact that I am an asshole.
Fifth, I am sure there are things that we do not know about that are factoring into their decision, and I think they need some time to sort things out. Maybe that ties into my authoritarian streak, but I think they deserve a couple months to leave their mark and start plotting their own course. Right now, I think they are still in the process of dealing with a lot of shit that was left behind. There may be very valid reasons they are moving the way they are.
Finally, and maybe because I played such a role in it in 2003-2005, but I absolutely fucking LOATHE outrage choruses.
So, in short, write letters. That seems to me to be productive. Call your congresscritter. But cut it with the Obama failed because he didn’t do what I want, or the rest of the histrionics. The post at Balkinization makes me want to kick puppies. One administration does any number of illegal and outrageous things, the next administration comes in and has barely had time to order a pencil sharpener and somehow they are just as bad as the previous guys. Give me a break.
I am going to wait a few months. If things are not moving in the right direction, then I will join in. This may very well be one of those situations when you are driving, and everyone going slower than you is an asshole and everyone going faster is a maniac, but that is where I am right now.
Just Some Fuckhead
@TheHatOnMyCat: Teez, if yer willing to extend the same courtesy – amnesty from prosecution as long as they don’t seek public office – to the millions currently rotting in jail and the tens of thousands awaiting prosecution, you might have a valid point.
Otherwise, you’re just a Royalist.
@TheHatOnMyCat: Which is precisely why they will fight the voters for it. If Obama will concede it then we can all move forward.
@Svensker: I waz jokin bout Marty, natch. And Levinson still keeps the comments open.
And seriously. Read some of Bart’s recent missives. The guy’s losing it, and is going on about his personal combat experiences.
You know, when you say stupid and adolescent shit like that, whatever you had going for your argument is right out the window.
Nobody is saluting a dear leader, you horse’s ass.
Again I see you didn’t address the two specific points I made. If you are a cowardly Lion and scared of conflict then I would say thankfully you aren’t in public office. The whole POINT is its not supposed to be easy, but what it will is go a long way towards PREVENTING the shit happening again. Or do you think another little dictator will never win again in this country. So FUCK YOU for being a pussy and wanting to dip your head in the sand instead of actually putting up a fucking fight and holding people accountable. Weak minded asshole trying to call someone else because they actually want someone held accountable for their actions. Imagine that.
The House of Representatives. Not the WhiteHouse. Next question.
Of course thats only if you are talking about a probe by Congress instead of a criminal probe. In that case it would be through the DOJ not the WhiteHouse. Next question.
Just Some Fuckhead
John, I feel like we’re having a bit of a breakthrough here. Unfortunately, I won’t be able to fisk the entirety of your reply due to time constraints on my part but I think it’s fair to summarize your position as "falling in line"?
I can dig that. I can’t do that but I can dig it.
@Svensker: I approve this message. However, this:
just struck me as funny, because it kind of perfectly encapsulates the current dynamic.
You see, I think even religious true-believers criticize and question God. They just have faith that God has a plan, that ups and downs along the way actually serve some grand purpose in the end.
I see myself making the same arguments with respect to the Obama administration. So here, where I obviously agree that there is nothing to like about their position in Court yesterday, I have faith, for now, that they’re ultimately moving in the right direction.
Of course, faith that goes unanswered or scorned for too long may just make an atheist of me. Or NObaman. Or whatever. =)
I’m not talking about amnesty. I’m talking about priorities in government in the middle of a shitstorm. I’m talking about making the best choice for the use of time, resources and political capital.
I’m talking about choosing to let the voters run the country and not trying to run it via the DOJ and the courts.
Is there anyone around here who can carry on a rational conversation? All you guys can do is snark and put words in other peoples’ mouths. If you had an actual argument, you would be making it.
You sit at the cabinet meeting and you face limitations and challenges that are quite frankly beyond daunting, and your best suggestion is to spend what you have on prosecuting the other party’s last president and his people?
Then I vote against you. Get me another president, you are a goddam fool. Sorry, don’t take it personally. I don’t have time for you. That’s rhetorical you, not personal you.
Be honest about it, John. You aint seeing a lot of that nonsense on moderate blogs.
Obama = Gorbachev.
Where did you learn civics, in the high school boys’ bathroom?
If you think government is about pissing contests and chest beating, then you should be a Republican. Or, maybe you are, I don’t know.
Ironically, you have one great and classic example of how to approach a situation like this, and that is the one cited by Steve above: Gerald Ford, Nixon pardon. I was never a big Ford fan but on that one decision, he goes to the hall of fame. If I were Obama, I would pardon Bush right now and tell my critics to shove it up their asses. That solves the problem, and also tells the fight mongers like you that you can take your cowardly lion taunts and kiss my entire smooth black ass.
Chill the fuck out. He’s got this shit.
ok, ok, sorry about that – I just always wanted to say that
I have outrage fatigue but am glad for the watchful eyes of others – like John, I want to give it time to play itself out — Obama is still surprising me, always in a pleasant way, so I’m hanging on to that.
And yeah, things have been so fucking bad for so long, well, some of us are still getting our bearings — I’m still trying to recover from last night’s press conference happiness that my president can speak in coherent sentences and present cogent arguments and basically act like an adult — it still stuns me now and then
I want to bask in that for a while
@SGEW: That’s a good point. We want lawsuits like this to deter, as well as compensate for past harm.
But you’re right that these are thorny issues perhaps best left to, how should I put this, more esoteric blogs.
As opposed to how I should not put it, on a blog full of blathering nincompoops. Nah, I keeeeeeeed, I keeeeeeeeeed.
I am pretty relaxed about this, for a couple of reasons.
1. This is the Ninth Circuit, home of the Interminable Backlog. There is more than ample time for the new kids at DOJ to conduct a careful review, determine that they don’t want to assert state secrets privilege in this case, and file a supplemental brief confessing error and asking the Ninth Circuit to vacate and remand.
2. As I said in comments in last night’s open thread, I think that if the quotes from the oral argument that were reported in the Times were accurate, the DOJ lawyer came as close as it is possible to come using only code words to tanking the case and inviting the Ninth Circuit to write an opinion that will give the Obama DOJ the political cover it needs to back away from the Bush DOJ’s ridiculous positions on state secrets. Remember, the problem is not that the state secrets doctrine exists; the problem is that the Bush DOJ abused the heck out of it.
If it turns out that I am wrong, then I will join SGEW and others in their outrage. But for now, I say "let this play out a bit more."
I think your argument just went out the h.s. boy’s bathroom window.
You really don’t have to kid. We are pretty aware of where we stand here.
At least I am. That is why I always turn down every request to be on the radio or in the media or to participate in a debate- my standing response if “Can’t you find someone who knows what the hell they are talking about?”
To be honest, I have only had several requests like that, but I find it appalling that I am even asked in the first place. I mean, after all, I think having Joe the Plumber in a debate is moronic. What is to be gained by having me in a debate talking about things I don’t understand?
I thought I was doing a decent job, but if you’re just going to lash out at everyone then maybe you should rethink who is being rational and who isn’t.
If Obama gives up the Bush state secrets interpretation, as he promised in his campaign, he can leave it to the courts to bicker and argue over who killed who. One decision, no more outrage, no more distraction.
Also, I fail to see how giving criminals a pardon is best for the country, you assert this as expedient, but that seems like something democracies are NOT suppose to do. Voting in the next election is fine, and in the meantime real crimes deserve real penalties.
With these fucks, I wouldn’t be so sure.
Y’all are so vociferous in saying this, but you’re ignoring the very obvious take-home message–why would ANY subsequent Admin obey the law if this were the necessary attitude? If the default setting is that later Admins simply ignore/dismiss the lawlessness of those prior, then there becomes no consequence for Rule of Law on any level to exist.
You can’t run a country on trite slogans.
That’s why Drill Here Drill Now won’t solve the energy problems, any more than prosecutions are a way to run a country.
You are wrong, and there are not going to be any prosecutions in this situation, unless we have inadvertently put damned fools in charge. So far I see no evidence that we have.
As for your argument, I tend to bash indsicriminately at the wrong side of an argument and not pay close attention to exactly who posted exactly what. Your arguments are fine, I was really reacting to someone else’s. Sorry.
Though, for a change, it would be nice to have a debate with some educated people not knowing what they’re talking about. Nom Nom.
Thinking about this, I don’t think freaking out damages Obama; if anything it strengthens his hand. Now it will be harder for Republicans to paint him as a wild-eyed secret muslim extremist; after all he stood up to his base.
It’s been amusing to watch the Republicans go back and forth trying to pigeon-hole him; one day he’s the secret radical who’s going to ruin us all, the next he’s the reasonable moderate standing up to the lefties and their trying to play him off the the crazy liberals in congress. They don’t know what to do, and they can’t keep a coherent story-line from one day to the next.
However while it might not be damaging for Obama, it could be for the causes we are supporting, especially in the future, should someone less sympathetic than Obama should come to power again.
Ok. Strawmen aside (has anyone here pulled the "OMG OBAMA IZ JUST LIKE BUSHIT EXCLAMATION MARK EXCLAMATION MARK EXCLAMATION MARK ELEVEN!" schtick yet?), I acknowledge your point. Seriously. While I wouldn’t call myself a "single-issue" voter, as I have way too many "issues" (Don’t Buy ExxonMobil!, by the way), I can certainly see how us civil-libertarians-with-legal-backgrounds types can get a li’l annoying sometimes. I admit that we often see things a tad too black and white sometimes. And yes, Greenwald can often be a presumptuous, pretentious, belittling, self-righteous ass.
So saying, on to quibble/fisk!
It’s not always revisionism if they have a legitimate point. Clinton did, in fact, order illegal (under most interpretations of Int’l Law) renditions. Obama has (by all indications) adopted a policy that "liberals" (love how Scott Horton became a "liberal") have criticized for years now. While there is no equivalency, of course, between torturing innocent civilians to death for a mess of pottage (see Bush, et. al.) and using a particular legal argument that pisses off civil liberties folks (the "state secrets" privilege under contention here), there is a kernel of worrisome truth to the "everyone does it" canard.
Um. Usually I’d say "right on," but we’re actually talking about Justice here (note the capital letter).
There’s some validity there, but it’s mostly straw, I’m afraid. Luban (and even Greenwald, mostly) would never say that the Obama administration (so far) is "as bad as" Bush, in total (Is Bush the new Godwin?): what they’re saying is that on this particular issue, in this particular case, the DOJ’s position is literally the same as Bush’s.
What about 2006-Present, viz a viz the Bush administration and the Republican party? (ahem)
Plz no kick teh puppiehs!!
[You should front page your comment, btw. This kind of stuff is why we all read you all the time, even (especially?) when we disagree.]
So you could say "skull fuck a kitten" on national television, duh.
And yes I know it’s "they’re" and not "their," but when I try to fix it, even though I have more than a minute left, it tells me I don’t have permission to change it now.
If Obama wants some other branch of government to take control here to show it’s their bailiwick, I’d sure like some information on who that would be.
What exactly is the mechanism here? This is some sort of appeal, not at the highest levels yet, and what is at stake is the setting of legal precedent about whether the government or the courts have the final say on disclosing information?
I can immediately think of one situation where Obama should NOT TOUCH the existing policy: in the event that this policy is working its way through the courts towards a catastrophic debunking at the highest level of the court system. If this is happening and you want it to continue to happen, you do not snatch it out of the court’s hands and say WHOA WOOPSY WHAT POLICY??
I want to know right away if Obama issues NEW policies that are the same type of thing, and I want to know where this is in the system- is it going through the appeals process to more authoritative courts?
Until I have better evidence that Obama actively wants to retain these powers- I say he is simply keeping everybody away from the scene of the crime. I would do likewise, if I had even moderate confidence that the courts would do their part. I would be saying, "That’s right. These policies are not being tidied up. Ball’s in YOUR COURT gentlemen."
I admit this would take humility and willingness to have the courts openly assert powers supposed to be theirs- now what was the one candidate for any presidential or vice presidential office MOST likely to arrange such a thing rather than grandstanding for his own personal self-aggrandizement?
Sorry folks, I’ll flip out when he prevents the courts from doing their part and wresting that power from his hands. I think he’s angling for a legal precedent that wouldn’t happen were he to just go ‘woopsy, it’s MY business to decide what we do or don’t do, and we don’t do THAT’. I’ll bet you he’s going for "check it out, my office is NOT the Decider of what to do or not do about THAT. Here’s proof. I ‘lost’."
@TheHatOnMyCat: We’re cool.
It’s not a "trite slogan", but a statement about how law and justice is suppose to work. Not in the abstract, but in practice. The rest of us are held to this standard, and no one is telling my local DA to ignore Bootlegger’s pot plants because he should really concentrate on the meth labs (though I wish he would).
Obama doesn’t need to pursue the Bush administration criminally right now, you are correct he has too much on his plate. But reversing the definition of "state secrets" is not the same thing, it would take minimal effort, and it would allow other authorities to look under the rocks for him. Down the road, then we see what happened. Everyone knows the sitting president can’t push through any legislation the 9 months prior to an election, this is good down time for a good ‘ol fashion witch trial.
You are right, I am pressing extra hard on the keys. I didn’t know you could detect that.
Take home message? Jesus, you sound like a Dobsonite. Handing out condoms sends the wrong message!
No, actually, condoms prevent disease and unwanted pregnancy, that’s why you want to distribute them. Fuck the message. Strawman messages are for people like Rush Lamebaugh.
I stand on what I wrote at #77:
You don’t waste the fleeting time and energy you have in government trying to punish the former governments. See Ford, Gerald. Probably the single best decision by a president so far in my lifetime. Seriously, I cannot think of a better one.
The airwaves are already dominated by people debating who have no idea what they’re talking about. It would be refreshing to have someone who at least knew and admitted that fact.
But how far does the rot go?
I can’t help feeling that it’s a lot bigger and more problematic then it looks like from outside.
How to untangle the mess without essentally taking the DOJ offline for months if not years is not something I expect to be done quickly.
It smells more like a bid to stall for time.
Computer keys nothing, Bush throughly trashed the government on his way out.
I guess here’s the take-home DFH talking point on what needs to happen…
We do NOT build a fire under Obama to be the ‘decider’ and assert the power to take all this apart just so that the next winger Prez can put it back together again.
We build a fire under the courts and whoever’s pursuing these cases to take the power out of Obama’s hands- it has to be taken, cannot be given- so that NO Prez can do such things or assert that it’s their bailiwick.
The question is, WHO must dismantle this apparatus? I say it’s the courts, and that Obama cannot do so without building the deeper argument that his office has the power to make such decisions for the country.
THAT is the point here. I realize there is deep justice with a capital J at stake, but it’s still more important to settle who is the final arbiter. That has to be settled FIRST before we can undertake anything else.
I get what you’re saying, and I can see the strategy behind it. The only thing I can say about it (without getting into the thorny procedural details which, as one who does not actually practice in this particular area, I am not fully qualified to really place any bets on it) is this:
Holy shit that would be a dangerous course to sail. There is a line between "brilliant courtroom strategy" and "irresponsibly gambling with the health of the Rule of Law."
I think if I was them, I’d be slightly offended at the assumption that they have to be watched for unprincipled positions. I think Luban’s post proves that their principles are just fine.
@TenguPhule: Sure, I agree with you and TheHat that we don’t necessarily need DoJ pursing this right now. But again, let others overturn the rocks, find the rot, then when he’s in a legislative dead-zone just before elections he can put a couple of hound dogs on it. There’s one in Chicago should be done with Blago by then.
This may be one of the most unDemocratic things I’ve ever seen on a lefty blog. Shorter TZ: who the fuck cares who breaks the law! Pardons for everyone!
Please agree or not agree with this statement: The President of the US can break the law with impunity for the length of his term.
It should also be noted that there is potentially a way for the Ninth Circuit to simply kick this dispute over state secrets down the road.
The procedural posture that the case is in right now is that plaintiffs are appealing from an order dismissing the case. I don’t have time right now to go on PACER and find a copy of the Government’s motion to dismiss, but I assume that the ground was "failure to state a claim on which relief can be granted," under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In effect, the government said, "plaintiffs can’t prove their case without our stuff, and they can’t have our stuff, so they have to go away."
It’s hornbook evidence law that blanket claims of privilege are disfavored. If, for example, you want to claim that you don’t have to give certain documents to the other side in a case because they are protected by the attorney-client privilege, you do it on a document-by-document basis in response to a discovery request from the other side.
The easy way out for the Ninth Circuit in this case is to simply say that the state secrets privilege is subject to the same procedures as every other privilege, vacate the order of dismissal, and remand to the District Court. Then plaintiffs can propound their discovery requests, and if there are particular state secrets that the Government wants to protect, it does so on a document-by-document basis, or on a question-by-question basis in depositions. The disputed stuff gets submitted to a magistrate for in camera review, the magistrate decides on claims of privilege, and the losing party can ultimately appeal.
"Drill Here Drill Now" might have been a valid strategy if we’d actually had any oil to drill for. As it stands, it was empty sloganeering because it wouldn’t actually solve the problem.
By contrast, prosecution of criminal conduct has a proven deterrent effect. Serial criminals will continue to break the law until they are caught. A rapist doesn’t stop attacking women if he’s left off with a warning. A bank robber that escapes the police today will run out of money eventually and he’ll be back to rob again.
If you do not like how this country was run and you acknowledge that it was run poorly – in part at least – because good laws were broken, you have to go out, capture, and punish the crooks. It’s that, or get those laws off the books now, so they can’t be used on YOU in the future.
But we can’t keep living in a society where we have one set of rules for the liberals and another set of rules for conservatives. A house divided and all of that… Eventually, you’ve got to have an accounting.
A further thing (on top of everything else! I need a better use of my time, mayhaps?), re: Bush administration prosecutions.
Please note that the real contention over the current DOJ’s apparent continuance of the "state secrets" privilege to dismiss civil cases alleging government wrongdoing is not just about the Bush administration’s particular wrongdoings. Yes, the case being discussed is about the previous administration having brutally tortured an innocent man (including slicing . . . never mind, it’s really too awful for me to even write about), but that’s not really the crux of the problem. It’s much more (to me) about an overly expansive blanket power given to the Executive branch at the expense of the Judicial*. It makes no difference who’s filling the President’s chair at the moment.
It’s about holding the Executive accountable for future wrongdoing, not necessarily about getting at Bush and Cheney and the rest of ’em. One can have serious doubts about the political and/or legal wisdom of actually prosecuting former administration officials while still seeing this most recent move by Obama as totally unjustified.
*Some may call it nit-picking, but when it comes to the law some of those unpicked nits may wind up fucking killing you.
If this actually happens (which I doubt, because I don’t fucking trust the 9th! but that’s neither here nor there), and it turns out that this was, in fact, Obama’s preferred end-goal, I will obviously dance with joy.
However, I still say it’s very, very, very risky.
SGEW, you do realise you have just used the words ‘gambling with the health of the Rule of Law’, in apparent seriousness?
I don’t think it’s irresponsible at all. These things MUST be settled. I’m only interested in whether it’s still possible- but Rule of Law is not ‘healthy’ in any sense of the word, and there is NO way to make it more healthy by the Executive continuing to be the arbiter of what is and is not permissible.
Again, this power CANNOT be given, it can only be taken. If it’s not wrested from Obama’s hands, it’s worthless, and he is obligated to at least hold on a token amount and go through the motions or we’ll never know…
If the courts cannot wrest this power back (as they MUST do), then dude: rule of law was dead already and you never noticed. I say that would be useful information to have, making the process worth it.
Tim F: "However, doing so would almost certainly compel a wider investigation and likely criminal charges against former government officials. To avoid being seen as the President who put his last administration on trial Obama must resort to the exact same heinous abuses of power that made the Bush DoJ into a national disgrace."
If such an investigation is compelled (a strangely passive voice phrasing), then so WTF?
If Obama continues criminal Bush policies, then he owns them, every bit as much as Bush does. Which I’m sure that Bush & Co. are hoping for.
This is an *amazingly* bad statement, Tim. By that standard, if you take over a company, and find that the previous CEO/CFO/etc. were commiting frauds, you should immediately take those crimes unto yourself.
Agreed. I’d rather see the new kids at DOJ file a supplemental brief confessing error and asking for a vacate-and-remand. And as far as trusting the Ninth is concerned, I hear you – that lot are essentially impossible to predict.
If we grant that Obama waive previous privileges, it does nothing to strike the validity of said privilege. Nothing prevents future executives from applying it at will. If this case can go forward, and be judged that secrecy is not allowed in cases like this, then it becomes a precedent that binds administrations beyond Obama’s. We must never rely solely on the good graces of one man.
Perhaps pressing forward with the weakest case will allow the principle itself to be struck, not just one use of it.
The Other Steve
When has this worked in politics?
Do you seriously think no President in the future will get a blow job?
And FWIW, I think it was a little disingenuous for Luban to bring up Reynolds in his post at Balkinization.
Yeah, David, we know that the first time the state secrets privilege was ever asserted it was a fraud on the court. But that brings nothing to the discussion about whether there is a role for a properly limited state secrets privilege to play in our system. I happen to think there is. I’m more than happy to have that conversation, here or elsewhere.
Despite the "Bush killed the rule of law forevahs!" sentiment, you have a pretty good point. You’re spot on that we cannot allow the President to "continu[e] to be the arbiter of what is and is not permissible," and that the responsibility is ultimately in the hands of the Judiciary*, but I can only say that the President should bloody well try and help the process along in good faith, and not try and obstruct it.
As far as the "Health of the Rule of Law" goes, I suppose I was hoping that the new President (Constitutional Law Professor that he was) would at least try and nurse it back towards life.
The Rule of Law isn’t dead. It just smells bad.
*Lordy lordy help us! How old is Scalia now, anyway?
I would like to know how the threat of being removed from office via the ballot box deterred Bush at all.
Seriously. We only let presidents have two terms anyway; all anyone has to do is hide their criminal behavior until after the re-election. Failing that, there’s a good chance they can just scaremonger and SwiftBoat their way into a second term, especially if they’re not constrained by honestly and ethics and reality and all that sucker crap. Then there is literally nothing whatsoever to hold over their heads to get them to follow the law during the second term. Do you think Bush really gave a shit that he was making it harder for a Republican to get elected in 2008?
If voting ’em out is our only recourse, we’re fucked.
Oh come on now.
"The left" is not a monoculture, and the moment that people stop treating it like one is the moment I start taking mainstream news sources and network political discussion serously.
Some feel that any action short of immediate, vigorous reversal of any position taken by the Bush administration in any action alleging misconduct by anyone directly or indirectly associated with US anti-terror activity is criminal complicity in war crimes. In such an atmosphere those people will never feel there was anything short of a cover up in any thing the Obama administration does going forward. They are already criminal co-conspirators.
I might make a modest proposal for these people. Since your feelings about the moral error of the US government are sincere, and the need to rectify this is paramount, you need to consider dramatic action to reverse the criminal ambivalance both the public and the new administration display. Only twice in my lifetime can I remember the American public being jolted out of this kind of compliance with evil. The first was the Civil Rights battle, which took decades and involved building a mass movement. The second was Vietnam when the Buddhist monks engaged in direct action to confront the Diem regime. Matches, anyone?
If we can run a federal deficit, Obama can run a political capital deficit. At this rate he’ll have to anyway.
Any position? Any action? Literal criminal complicity? Who the heck are these people who are saying this? Fo’ real, who? Some random DailyKos diarist? An anonymous commenter on DemocraticUnderground? What are you, Bill O’Reilly? Yeesh. To quote Sam Harris, regarding strawmen and red herrings: ". . . much of your last essay targeted terrain that I have never thought to occupy. I did hear some bomb-blasts in the distance. They were magnificent."
If the Bush administration was not constitutionally limited to two terms, and torturing innocent civilians to death had continued as official U.S. policy, it might have fucking come to that, guy. But whatever.
This is the bit that sticks in my throat most, for fairly obvious reasons.
The "authorized positions" in question being the ones invented by the Bush Administration that claimed Binyam Mohammed, and the other four detainees, should have their civil case against Boeing (for providing the rendition flights that took them off to be tortured) thrown out, not because he wasn’t illegally tortured, but because the evidence he’d have to use to prove he was illegally tortured would threaten the national security of the U.S.A. and damage it’s relationships with other states (the ones complicit in the illegal programme, and the ones to whom torture was outsourced), so is covered under the state secrets privilege.
That doesn’t look to me like a plea for the Court to "Take this claimed authority from us and restore the Constitutional Balance". It doesn’t even look like a case of "We’ve only just got in power and we haven’t had time to clear up enough shit to sit down safely, we’ll get back to you".
It looks like the "appropriate officials" are claiming to have
"thoroughly vetted" the Bush Administration’s policy in this area and agree with it.
Outrage is pretty much to be expected, because what they’re saying is really, really wrong. It was wrong when the Bush Administration did it, and it’s wrong when the Obama Administration does it. Saying so shouldn’t really be seen as trying to cause a ruckus.
@The Other Steve:
Seriously, which ass cheek did you pull that out of? I said “create new laws”? Where did that come from?
My argument is not that new laws should be created, simple ethical adherence to existing law would suffice. Set an example going forward that we really do have a federal government with three branches. What a concept. That, rather than trying to advance the previous admin’s position that we really only have one unitary executive branch of government and the other two exist to ditto it, or at least not interfere with it.
The valiant ball buyers of the RSSF would give that a one-dildo-up sign of approval. As I mentioned above, IOKIIMG doesn’t work for me. (It’s OK If It’s My Guy)
The first quote was taken from this thread. The second was from Cernig’s blog over at Crook’s and Liars. Nobody attributed an extreme position to you, yet you feel the need to flail at statements that that position exists as "strawmen." Repeatedly I might add. I happen to find most of your legal arguments fairly persuasive. Others find them to be justification for their predisposed "sky is falling" reactions, My satirical jibe was aimed at them. I am curious why every time the point is raised you feel it is aimed at you.
@ricky: Oop. I iz bustd. My bad?
Um . . . Because I’m way too over-sensitive and should spend less time on teh internets? Because I’ve been waiting forever to use that Sam Harris line, even if its eventual use might have been, after all, inappropriate? Because there have been so many strawman arguments floating around about this already that it’s hard to seperate the . . . um . . . straw from the chaff? (metaphors – I can mix them)
Also: joking around about Mahayana Buddhist self-immolation seriously gets under my skin, for my own personal reasons. Sorry.
[Yargh! Spelling error! Cannot edit! Separate, dammit all. I get that one wrong a lot.]
It is a magnificent line.
Well, any guilt you properly laid on me about using the monks inappropriately is assuaged by the fact that it coaxed the Harris line out of you. That was priceless and will be recycled I assure you.
The Other Steve
You’ve really failed to make a convincing argument.
I’m still thinking that Obama cannot come out and say ‘Hi guys, I expect you to win this case against my office’ or it’d be some kind of mistrial. I’m very interested in whether he is ACTING like Bush did and seizing more people and torturing them, but as far as those executive privilege claims, I expect there is a reason why he would passively dig in and require the opposing side to do all the work in proving him wrong.
If they do (lord knows they should), Obama will be compelled to release information to the court about a previous administration’s actions. God knows what is out there to be learned: Obama presumably knows. He’s said Washington is a mess. Everybody’s been circle-jerking each other for so long, how could it not be a mess? I bet it boggles the mind.
I’m certain his cleanup plans involve him being pressured into action by outside parties, the public, and the courts. Let’s supply the pressure, that much is clear (and would be true whether or not this is a ploy).
I’m also certain there are legal reasons why the case against him would be bad law if he colluded to have the other side win.
Hang on, nerd reference. Obama is Riker in ‘Measure of a Man’. He’s gotta make it a real case for fear it won’t be binding when it plays out. :D
Hey, Obama just needs to exercise the executive powers he has right now (which we all know were *broadly* expanded during the Bush admin); round up all these fuckers that we KNOW, based on the evidence are guilty; call them "enemy combatants" (since the prez makes that determination), no trial (because he can), and straight to Gitmo and then to whatever other facility when Gitmo closes.
[endnote to thread?]
Marc "I’m Not Embarrassed to Say I Like the WWE" Ambinder does some legwork and gets some statements by a "senior Obama administration official":
No, this doesn’t change my mind on the actual issue. But yes, I can (maybe?) understand the position of the D.O.J. (esp. re: waiving privilege – what lawyer would ever waive an advantage if they had one in their pocket?).
So yeah, maybe (as I have already acknowledged, kind of somewhat somewhere) I was a tad . . . hyperbolic? freaked out? when I first read the ABC report, then Glenzilla, then Hilzoy, then the brief itself, then Balkinization. Yeah, maybe I should "wait and see" a bit more. But I still say that this is a dangerous, dangerous route the Obama administration is on . . . but, you know what? I bet they already know that.
[btw: I know lots of people hate him, but I still think Ambinder is one of the very best journalists out there. His stuff has been solid gold a lot of the time, and he doesn’t really get credit for it often enough.]
Totally, asbolutely disagree. I think you are dead 180 degrees wrong on every point.
You cannot operate the national government as a series of prosecutions against former governments, or opposition governments. The country cannot withstand that kind of nonsense.
Ford, Nixon pardon. That was the point, it was the right decision, and it is still the right decision.
You don’t get it, that’s obvious. But you are wrong.
There is no time in the world we live for this kind of crap. Using the government in this way would be a tragic mistake. I won’t support it and I don’t think Obama is going to make that mistake either.
@SGEW: I am reasonably sure that is what I said earlier like ten times.
But regardless, the key is to make sure in a few months they are moving in the right direction. If this is just a brush off…
@John Cole: I’m reasonably sure that you weren’t so, you know, specific. Nor were you a "senior administration official" (whoever that might be . . . Marty?).
Just so you know, by the way, you can always try to woo me over by saying stuff like "waive" or "discovery." Just don’t abuse the privilege.
[insert appropriate emoticon here]
I have strong doubts about this, but… there’s one other strategy Obama might be using here.
If Obama says "we no longer demand dismissal of this case based upon the theories of the state secrets privilege used by the Bush administration" then the question of whether that use of privilege is valid becomes moot.
If he defends that theory, the courts can now rule that the privilege does not extend that far.
(Or so it seems to me, a non-attorney.)
But I don’t want to assume that’s what he’s doing. I’ll forgive him later, if we later find out that’s what he’s doing. But this is too important to try to make excuses.
SGEW @ 145
Thanks for the update, candor, and consistency.
@SGEW: I’m glad we are on the same page, but I did say, a number of times, that the best thing to do is to wait a few months and see whether the policies start to shift. I also pointed out several times that Holder was just confirmed last week. I clearly was stating that they don’t know what they are dealing with right now, and flaming them right now seems premature.
Regardless, I am glad we are both going to take an optimistic wait and see.