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You are here: Home / Politics / Domestic Politics / Some Good News

Some Good News

by John Cole|  September 23, 20098:34 am| 63 Comments

This post is in: Domestic Politics

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Prepare for much wailing from the very serious people like birther Andy McCarthy at the NRO:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

This seems like a positive step.

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Reader Interactions

63Comments

  1. 1.

    cmohrnc

    September 23, 2009 at 8:39 am

    While this is good as a POLICY change, it is nonetheless NOT a change in LAW, and as such could be readily undone by some future GOP administration (or let us not forget it could even be a nefarious Dem successor administration). Legal status based on regard for the rule of law is only as strong as the regard of those controlling the office.

  2. 2.

    Persia

    September 23, 2009 at 8:40 am

    I’ve been disappointed by some actions the Obama administration has taken, but I am still taken by the overwhelming thought that the grown-ups are finally back in charge.

  3. 3.

    jon

    September 23, 2009 at 8:42 am

    It’s about time these decisions get made by someone with Congressional approval rather than one of those unconfirmed Justice or Pentagon Czars. We can’t afford to have Our Country be beholden to decision-makers without true titles!

    /full becktard

  4. 4.

    Comrade Jake

    September 23, 2009 at 8:44 am

    You sort of get the sense that the admin and DOJ are planning to take very gradual steps away from the right-wing nonsense we had the past eight years, so that things will look very different by the end of Obama’s presidency. Lots of small steps that most people aren’t going to notice, rather than one giant leap.

  5. 5.

    Apsaras

    September 23, 2009 at 8:48 am

    There’s a great episode of This American Life about the 1953 supreme court case, US v. Reynolds, that created the State Secrets Privilege in American law. Woman’s husband, not in the Air Force but a private contractor, dies during the testing of the B-29. Sued the government. When they tried to get access to the accident reports, the gov’t asserted (and the supreme court upheld) that state secrets were in that accident report and they couldn’t release it.

    Fast forward decades later, the crash report is finally declassified and… surprise! No state secrets. None.

  6. 6.

    asiangrrlMN

    September 23, 2009 at 8:49 am

    Very cool. And, I would like to add, Very Serious People to the BJ dictionary, = I get paid to make shit up. Or something like that.

  7. 7.

    Legalize

    September 23, 2009 at 8:53 am

    You sort of get the sense that the admin and DOJ are planning to take very gradual steps away from the right-wing nonsense we had the past eight years, so that things will look very different by the end of Obama’s presidency. Lots of small steps that most people aren’t going to notice, rather than one giant leap.

    This will give the winger poutrage machine something to run around and yip about for a few days. They’ll proudly wag their tails and sniff each others’ butts for a little bit and then lie down for a nap until it’s time to get up and be poutraged all over again – hopefully about the Dems ramming a good health care bill down their throats.

  8. 8.

    Ash Can

    September 23, 2009 at 8:57 am

    Jon @ #3 basically beat me to it. Andy McCarthy et al. will of course hail this as a blow for freedom and justice, because of the fact that our government is held hostage by an unruly mob of illegitimate usurpers, viz. Democrats, and therefore any limitations upon the ability of these usurpers to destroy America is a Good Thing. Also.

  9. 9.

    WereBear

    September 23, 2009 at 9:02 am

    I’ve been gradually understanding that this is the Way of Obama; not making a big hairy deal of things, but revamping it with a gradual series of steps.

    But, ya know, at this point I’m grateful there’s any thought at all being put into it.

  10. 10.

    anticontrarian

    September 23, 2009 at 9:06 am

    Don’t believe the hype. It’s a head fake. If you read down a few paragraphs, you get to the nut:

    Leading Democratic lawmakers in both the House and the Senate have filed bills that would restrict how the privilege could be used. The Obama administration has not taken a position on those bills, but the new policy, which is intended to rein in use of the privilege by erecting greater internal checks and balances against abuse, could blunt momentum in Congress to pass legislation.

    It’s like cmohrnc said @ 1, it’s a good policy change, but if the net effect is to head off a necessary change in legislation, then it’s difficult not to conclude that we’re being played.

    I don’t have anything against Eric Holder or anything. He seems like he’s mostly trying to do the right thing. But the whole point of the rule of law is that you make clear rules that everybody has to follow, with consequences for failure to do so laid out and enforced. It’s all well and good to say that all will be well, for a good man (or woman) will make the decision, but we can’t always count on a good man (or woman) being in that position.

    Just as hope is not a plan, so ‘trust me’ is not a policy.

  11. 11.

    DecidedFenceSitter

    September 23, 2009 at 9:07 am

    @cmohrnc:

    While this is good as a POLICY change, it is nonetheless NOT a change in LAW, and as such could be readily undone by some future GOP administration (or let us not forget it could even be a nefarious Dem successor administration). Legal status based on regard for the rule of law is only as strong as the regard of those controlling the office.

    Well yell at Congress, contrary to popular opinion it seems, the President doesn’t make laws, he executes them; therefore, admin decisions are all that’s within his purview.

  12. 12.

    burnspbesq

    September 23, 2009 at 9:09 am

    If the new policy is accurately described in the NYT article, I will be fine with it. I have confidence in the ability and willingness of US District Judges to do the right thing when given the opportunity to do so.

  13. 13.

    Morbo

    September 23, 2009 at 9:10 am

    I’m also sure that Glenn Greenwald will find something about this change that implicates the Obama administration as complicit with the crimes of the previous one. And he’s usually right to some degree.

    @asiangrrlMN: I would change or add that definition to include the phrase “as long was we bomb something.”

  14. 14.

    asiangrrlMN

    September 23, 2009 at 9:14 am

    @Morbo: Yes. Very Serious People know that is the only way to democratize a country. Bomb the hell out of it.

  15. 15.

    GregB

    September 23, 2009 at 9:22 am

    It’s 1939 all over again!

    -G

  16. 16.

    jwb

    September 23, 2009 at 9:22 am

    @asiangrrlMN: Bombs are the best way to show others just how very serious (r) you are. This is especially the case for those very serious (r) people who have never served in the military.

    edit to add:edit button, cool.

  17. 17.

    Wapiti

    September 23, 2009 at 9:25 am

    The panel reviewing state secrets claims should be judges, not DOJ.

    Does anyone here think that AG Gonzales and a panel of DOJ lawyers like John Yoo wouldn’t have approved every single state secrets claim that the Bush administration made?

  18. 18.

    2th&nayle

    September 23, 2009 at 9:32 am

    I suspect that these “baby steps” taken by Obama are an attempt to avoid excessive G-forces being applied to fragile lizard brains.

  19. 19.

    Sinister eyebrow

    September 23, 2009 at 9:33 am

    Any steps to start reigning in this widely abused doctrine is welcome. Now, a little legistlation would finish the job and get rid of 47 years of growing government abuse on this issue.

    Look to Jim Webb and Russ Feingold to push this issue in the Senate. They may get it in under the radar while the right is busy with their whooping and hollering over the poor, poor, put upon healthcare industry.

  20. 20.

    Punchy

    September 23, 2009 at 9:33 am

    Here’s a state secret–Indiana is a friggin dump.

  21. 21.

    burnspbesq

    September 23, 2009 at 9:34 am

    @Wapiti:

    I think you have misunderstood the process. The DOJ procedures will govern when the government’s lawyers may assert that the state secrets privilege applies. If it still – as it always has been – up to a judge to decide whether the privilege applies. The judicial process for evaluating claims of privilege is supposed to be the same, whether it is the government asserting that a plaintiff can’t have documents because of the state secrets privilege or me asserting that the IRS can’t have memos that I wrote to clients because of the attorney-client privilege.

    The Bush administration abuse of the privilege was its use of the privilege in motions to dismiss rather than in response to discovery requests.

  22. 22.

    Steeplejack

    September 23, 2009 at 9:42 am

    @2th&nayle:

    Reply to your comment the other night.

  23. 23.

    jibeaux

    September 23, 2009 at 9:49 am

    Right, I think legislation can still address another problem component, judicial evaluation of the privilege, which is distinct from executive assertion of the privilege. One of the problems has been that the judges wouldn’t even look at whatever it was alleged to be a state secret, leading to results like in that Supreme Court that was the basis of that TAL episode. I love This American Life, btw, they have pretty much mastered the art of storytelling as far as I’m concerned.

  24. 24.

    Brian J

    September 23, 2009 at 9:49 am

    The more I think about this, the more this one seems relatively simple. Either the Bush administration was right and we face serious threats that require easy means to bypass long-established rules, or we don’t. If that’s the case, then any administration, no matter what its politics, its intentions, or its members, should be trusted with such power, because the threat is so severe, the chance of abuse of such power isn’t really a concern.

    Would the Obama administration agree with such a characterization? Or rather, would they feel comfortable giving a Sarah Palin or Newt Gingrich or Mitt Romney administration the same sort of powers? If not, they need to start reversing the expansion of power that came about during the Bush years.

  25. 25.

    Comrade Jake

    September 23, 2009 at 9:52 am

    @Punchy:

    That’s not a secret. Everybody knows Indiana’s a dump.

    The only thing safe traveling through Gary at night is a bullet.

  26. 26.

    TheFountainHead

    September 23, 2009 at 9:54 am

    Obama, WHY?!

    Yep. Still funny.

  27. 27.

    The Moar You Know

    September 23, 2009 at 9:54 am

    @Punchy: So is most of Florida.

  28. 28.

    demimondian

    September 23, 2009 at 9:58 am

    @burnspbesq: Problem is, there have been cases where the DOJ has asserted that the state secrets in question are so sensitive that the judicial branch may not review them.

  29. 29.

    jibeaux

    September 23, 2009 at 10:02 am

    @demimondian:

    Right, and this would be a good opportunity for the involvement of the legislature, provide some principles and procedures for use in evaluating them.

  30. 30.

    Brian J

    September 23, 2009 at 10:03 am

    I’ve been disappointed by some actions the Obama administration has taken, but I am still taken by the overwhelming thought that the grown-ups are finally back in charge.

    I go back and forth between thinking he has some sort of long(er)-term vision in mind, where he isn’t as worried as about the short-term ups and downs, just like he was during the campaign, and being worried that he’s preparing to let me and a lot of other people down for no good reason.

    But then I think, no matter what, I can’t imagine voting for any of the Republican candidates. It’s not that I am entirely pure and can’t tolerate any stupidity and pandering, like the tire tariffs, but the Republican base is so horrendous that even with a person who might be decent on his own, it threatens to make a hypothetical Republican presidency into my worst nightmare. The idea that the Republicans are far, far worse isn’t exactly inspirational, but it’s certainly true, and more than enough to keep me voting for the Democrats for a long, long time.

  31. 31.

    asiangrrlMN

    September 23, 2009 at 10:07 am

    @TheFountainHead: I haven’t seen that before. Hi-larious!

    Obama, WHY????

  32. 32.

    General Winfield Stuck

    September 23, 2009 at 10:11 am

    And those of which had little faith, behold the mighty Unicorn.

    The congressional bills noted have been ready for some time, but you know what, there have been bigger fish to fry. And Rome wasn’t remodeled in a day.

  33. 33.

    John S.

    September 23, 2009 at 10:12 am

    So is most of Florida.

    So is most of any large state.

    Take a drive through Florida, New York, California or Texas if you don’t believe me. Once you get outside of the densely populated areas, shit gets scary.

  34. 34.

    BC

    September 23, 2009 at 10:12 am

    For those wanting this enshrined in law: the one thing the Bush Administration showed us is that if a president wants to flout the law and if the Congress is complicit with the president, it doesn’t matter what the law says. The only way to deal with a president flouting the law is impeachment. If Congress doesn’t do impeachment, then there is no downside for the president. The Bush admin was really scary because he was able to do so much outside and in violation of the law and there was nothing, nothing, nothing that could be done because he had support in Congress. In fact, Republican congressmen and senators would not so much as utter a criticism of Bush while he was in power. Our laws are only as good as the president we elect to enforce them.

  35. 35.

    SenyorDave

    September 23, 2009 at 10:19 am

    The idea that the Republicans are far, far worse isn’t exactly inspirational, but it’s certainly true, and more than enough to keep me voting for the Democrats for a long, long time.

    Brian J,

    The Republicans actually seem to be intolerant of anything resembling critical thought. Everyt policy has to have immediate good results as defined by them.

    My wife is a kindergarten teacher, and I take off from work two days a year and help out, and that is just how kindergarteners think. Except their motives are pure.

  36. 36.

    Just Some Fuckhead

    September 23, 2009 at 10:19 am

    This seems like a positive step.

    Yeah, well consider this new rule woulda requred Gonzalez’ approval last administration.

  37. 37.

    John S.

    September 23, 2009 at 10:20 am

    The idea that the Republicans are far, far worse isn’t exactly inspirational

    No, but it is certainly true.

    I got into a heated discussion with an older co-worker recently (who is a Republican). He was ranting about ACORN and socialism and how he could never vote Democrat because of all the crazy liberal extremism.

    I told him (rather sharply), “That’s an interesting point, because that’s exactly why I could never vote Republican. Because right-wing extremists blow up federal buildings, murder black people and try to deny rights and freedom to anybody they don’t like, whereas left-wing extremists chain themselves to trees, try to save the dolphins by harassing fishing boats and smell like patchouli. So I go with the lesser of the two evils.”

    He hasn’t spoken to me in a while.

  38. 38.

    John S.

    September 23, 2009 at 10:21 am

    The idea that the Republicans are far, far worse isn’t exactly inspirational

    No, but it is certainly true.

    I got into a heated discussion with an older co-worker recently (who is a Republican). He was ranting about ACORN and soc-i-alism and how he could never vote Democrat because of all the crazy liberal extremism.

    I told him (rather sharply), “That’s an interesting point, because that’s exactly why I could never vote Republican. Because right-wing extremists blow up federal buildings, murder black people and try to deny rights and freedom to anybody they don’t like, whereas left-wing extremists chain themselves to trees, try to save the dolphins by harassing fishing boats and smell like patchouli. So I go with the lesser of the two evils.”

    He hasn’t spoken to me in a while.

  39. 39.

    Brian J

    September 23, 2009 at 10:23 am

    @SenyorDave:

    The Republicans actually seem to be intolerant of anything resembling critical thought. Everyt policy has to have immediate good results as defined by them.

    My wife is a kindergarten teacher, and I take off from work two days a year and help out, and that is just how kindergarteners think. Except their motives are pure.

    I’m reminded of that Al Franken quote from Lying Liars where he says that the big difference between Democrats and Republicans is that Democrats like their country like a married couple loves each other, accepting the good with the bad and always working to make it better, while the Republicans love their country the way a four-year-old loves mommy: uncritical, always accepting, never questioning. So true.

  40. 40.

    Brian J

    September 23, 2009 at 10:27 am

    @John S:

    I wouldn’t even pivot the distinction on the actions of each side’s extremists. I don’t meant to sound lame, but each side has its nutballs, and while I might feel that the other side is worse, it’s hard to be sure. The real difference is how, at least recently, the leaders of the other side have embraced the extremism and not only not denounced their words and actions but almost encouraged them. You can’t control what others do, but you can control your reaction to them. When you have someone like John Boehner egging on the death panel nonsense, it’s clear the Republican leaders are interested in spreading hysteria.

  41. 41.

    ericblair

    September 23, 2009 at 10:28 am

    @Comrade Jake: The only thing safe traveling through Gary at night is a bullet.

    Reminds me of whatever Tom Clancy novel it was where one character’s backstory involved him growing up in the bucolic, rural heartland town of Gary, Indiana. Obviously, this was after the me-big-author-don’t-need-no-stinkin-editor phase of his career kicked in.

  42. 42.

    gocart mozart

    September 23, 2009 at 10:28 am

    This is just further proof that he is Hitler/Stalin. Were the Japanese internment camps state secrets? No. Neither will be the coming FEMA death camps for real Americans. Book mark this libs.

  43. 43.

    Svensker

    September 23, 2009 at 10:31 am

    @Punchy:

    LOL

  44. 44.

    Napoleon

    September 23, 2009 at 10:34 am

    By the way, I have Obama’s UN speach on and he refered to what the US had been doing as “torture”. This is just a heads up since my guess is we will hear nothing else but about that from the wingers for the next 2 weeks.

    @ericblair:

    Seriously? They must have steel mills down on the farm then.

  45. 45.

    mclaren

    September 23, 2009 at 10:36 am

    I’m hearing Burkean warning bells. The very essence of modern conservativism involves secrecy and paranoia and torture and human sacrifices and ritual scarification, and we have to cut the hearts out of 80,400 victims upon the inauguration of new American president the way the Aztecs did with their god-kings, and we’ve got to have blood, blood, I say, more blood and more war, death, death, death, death, death, secrecy, blood, death, torture, and did I mention cutting out 80,400 hearts?

    [Right hand jerks up involuntarily in a salute, left hand grabs it but can’t get it to come down, pundit begins to bite the right hand ferociously but the right hand starts to strangle him…]

    This moment of clarity has been brought to you by the Deeply Serious Commentators of the Mainstream Media.

  46. 46.

    ericblair

    September 23, 2009 at 10:55 am

    @Napoleon: Seriously? They must have steel mills down on the farm then.

    Yes, seriously. Might have been the same book where another character speaks Russian with a St Petersburg accent (which, of course, doesn’t exist). I mean OK, we don’t need to nit-noid every author to death, but these are the things that pull you out of the book and make you realize that the author has no clue what he’s talking about on the subject and hasn’t bothered to do five minutes’ research (ten seconds’ in the Google age) after he pulls a “fact” out of his ass.

  47. 47.

    rachel

    September 23, 2009 at 10:56 am

    @Brian J:

    …while the Republicans love their country the way a four-year-old loves mommy: uncritical, always accepting, never questioning.

    Except when the 4-year-old is balked of something he wants. Then he has a tantrum and starts shrieking, “I hate you, Mommy!” at the top of his lungs.

  48. 48.

    2th&nayle

    September 23, 2009 at 11:05 am

    @Steeplejack: o/t left you a reply on the other thread, thx.

  49. 49.

    Zifnab

    September 23, 2009 at 11:11 am

    I don’t get it. Why do we think enshrining policy in law is going to make a difference? The GOP will either a) immediately roll back all the policy changes the moment they get back into the House, b) turn every legal restriction into a dozen mini-scandals they can spitball at a sitting Dem President hoping something will stick, and c) completely ignore whatever restrictions are on the books once they do reclaim the White House.

    Dick Nixon, Ronald Reagen, George Bush Jr – none of these people were interested in obeying the laws. They got to run rampant for two terms each with no check or balance strong enough to restrain them. And when the myriad scandals finally broke, a last minute pardon or clemency made the whole affair disappear.

    Laws don’t matter to these people. All we can do is try and avoid electing more megalomaniacs in the future and – when they do get elected – start prepping the mops and scouring pads for when they finally leave.

  50. 50.

    ThatLeftTurnInABQ

    September 23, 2009 at 11:12 am

    @mclaren:

    [Right hand jerks up involuntarily in a salute, left hand grabs it but can’t get it to come down, pundit begins to bite the right hand ferociously but the right hand starts to strangle him…]

    Gentlemen you can’t fight in here – this is the War Room!

  51. 51.

    John S.

    September 23, 2009 at 11:13 am

    but each side has its nutballs

    True, but in my humble opinion, liberal nutballs got NOTHING on conservative nutballs.

    I completely agree with your assessment regarding the leadership, though. The liberal nutballs are totally eschewed by the Democratic leadership whereas the conservative nutballs not only are embraced by the Republican leadership, some of the nutballs are the Republican leadership.

  52. 52.

    Napoleon

    September 23, 2009 at 11:14 am

    @ericblair:

    Funny thing is I consider Gary the very definition of urban hellhole (and I grew up in Youngstown, Ohio, which is similar to Gary in many ways). Every time I pass through I try to hold my breath it smells so bad but I never quite make it to the skyway before needing to breath.

  53. 53.

    CalD

    September 23, 2009 at 11:28 am

    Can’t hurt I guess. Don’t get me wrong, this is great news for today but it strikes me as fairly toothless in the long run. How much trouble do you you realistically think it really would have been to obtain such approval from Alberto Gonzalez, for example?

  54. 54.

    2th&nayle

    September 23, 2009 at 11:30 am

    @mclaren: [Right hand jerks up involuntarily in a salute, left hand grabs it but can’t get it to come down, pundit begins to bite the right hand ferociously but the right hand starts to strangle him…]
    hahaha! “Mein Fuhrer! I have zee plan!”
    Might be the funniest scene in film history! Sellers was a genius!

  55. 55.

    canuckistani

    September 23, 2009 at 12:39 pm

    Fast forward decades later, the crash report is finally declassified and… surprise! No state secrets. None.

    The fact that there were no secrets… was secret.

  56. 56.

    gocart mozart

    September 23, 2009 at 12:47 pm

    @rachel:

    Except when the 4-year-old is balked of something he wants. Then he has a tantrum and starts shrieking, “I hate you, Mommy!” at the top of his lungs.

    when the Republican is balked of something he wants like the election of McCain. Then he has a tantrum and starts shrieking, “I hate you, Obama!” at the top of his lungs.

  57. 57.

    gocart mozart

    September 23, 2009 at 1:00 pm

    The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime; he is a good citizen driven to despair.”
    H.L. Mencken (letter to Upton Sinclair, October 14, 1917)

    ‘My country, right or wrong,’ is a thing that no patriot would think of saying except in a desperate case. It is like saying, ‘My mother, drunk or sober.’”
    G. K. Chesterton (1874–1936), The Defendant, p. 166 (1901)

    Says it better than I could. I always thought the second quote was Mencken also.

  58. 58.

    Steeplejack

    September 23, 2009 at 1:16 pm

    @2th&nayle:

    Got it.

  59. 59.

    slippy

    September 23, 2009 at 2:14 pm

    @Comrade Jake: That’s a pity, because I’d have relished watching Conservative retards everywhere get a knot jerked in their ratty little tails.

  60. 60.

    Calouste

    September 23, 2009 at 2:22 pm

    @John S.:

    I got into a heated discussion with an older co-worker recently (who is a Republican). He was ranting about ACORN and soc-i-alism and how he could never vote Democrat because of all the crazy liberal extremism.

    I told him (rather sharply), “That’s an interesting point, because that’s exactly why I could never vote Republican. Because right-wing extremists blow up federal buildings, murder black people and try to deny rights and freedom to anybody they don’t like, whereas left-wing extremists chain themselves to trees, try to save the dolphins by harassing fishing boats and smell like patchouli. So I go with the lesser of the two evils.”

    The extremist animal rights movement hasn’t killed anyone yet, but it sure hasn’t been because they haven’t tried.

    But as Brian J says, the difference is that the conservatives are dog-whistling to their extremists, where the liberals aren’t.

  61. 61.

    slippy

    September 23, 2009 at 2:24 pm

    @Zifnab: Maybe then a couple of powers should be taken from the President, and the process of altering the powers of the Presidency should be changed so that only a supermajority can manage it.

    I would take the power of pardon away for starters. And also, the power to send military forces over the U.S. border or across the sea for any reason whatsoever.

  62. 62.

    CJ

    September 23, 2009 at 3:02 pm

    @slippy: A supermajority is already needed to take away a president’s power to pardon. Further, Congress already has the power to reign in the president on the military forces matter.

  63. 63.

    slippy

    September 23, 2009 at 4:01 pm

    @CJ: CJ, what I mean is that the Presidency should be unable to assume new powers for itself.

    And the thing about Congress having the power to reign in the President’s ability to take us on military adventures — I would like to see more serious restrictions on that. Obviously all the restrictions currently in effect failed to stop a completely unnecessary duo of wars.

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