Good thing we elected a constitutional scholar:
A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.
The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.
Assholes. Osama bin Laden’s 9/11 strike was successful beyond his wildest dreams.
schrodinger's cat
Not a republic but an empire.
burnspbesq
PDF copy of the opinion here.
http://www.ca9.uscourts.gov/opinions/
Settling in to read it. Not looking forward to this.
Gravenstone
Um, you’re pissed that the DoJ argued the case as they did. Understandable. But it’s the fucking Judiciary that agreed with their argument and upheld it. Care to direct a little venom that direction as well?
cleek
optimistically, you could’ve highlighted the rest of that sentence, instead:
no, i don’t think that’s what Obama’s doing. though it’d be nice if the SC knocked it all down.
amorphous
And I think if the Obama administration is fighting so hard for such indefensible things means the atrocities committed under Bush/Cheney are almost certainly terrible beyond our wildest dreams.
Corner Stone
I’m not sure why you’d be upset about this. The Obama admin just wants to keep us safe.
burnspbesq
If you are setting out to read the opinion, take seriously the Court’s admonition about the procedural posture. For purposes of ruling on motions to dismiss, courts ASSUME that all of the allegations in the complaint are true. None of that has yet been PROVEN.
Lolis
Thank goodness for all the brand new libertarian teatards too!
It is hard for me to get too worked about this stuff, America gave up caring about being a real democracy along time ago, if it ever cared. Most people in this country don’t give a shit.
handy
@Corner Stone:
And in his heart he believes in freedom, so leave the man alone you damned hippies, AMIRITE?!
Punchy
Bush said we didn’t torture, so these prisoners are all fucking liars.
Uncle Clarence Thomas
Another historic victory for President Obama and his balloonbagger posse!
CJ
@Uncle Clarence Thomas:
Can I be a Balloonbagger? Are there prerequisites?
Corner Stone
@burnspbesq: God bless you kid. When this world gets a little bit much for more I am always glad to be able to count on one solid thing.
You are my rock.
handy
Balloonbaggers? Hammer time!
Corner Stone
@Uncle Clarence Thomas: I’m not sure why they keep making the Obama admin fight for these executive secrecy powers.
Corner Stone
@Gravenstone: “But it’s the fucking Judiciary that agreed with their argument and upheld it. Care to direct a little venom that direction as well? ”
Sure.
God damn you judiciary!!
Better?
lawguy
I’m sure this is all the fault of those bloggers at Firedoglake.
arguingwithsignposts
Is this the week I regret stopping sniffing glue?
D-Chance.
But, IOKIYAD, right? Obama would never lead us astray… just trust him. He has our best interests in mind with whatever he’s doing to those “prisoners” at Bagram (and, no, we don’t need to know what’s in our best interests).
Corner Stone
@lawguy:
Actually, I’m fairly sure the either the conservative Democrats in Congress, or the Ladies of Maine forced this outcome. Somehow, someway, acting as he did protected us. Other random quotes from I, Robot as appropriate.
eemom
@burnspbesq:
I would agree that that is a very important point and one of which everyone should take note before they jump to conclusions — but I haven’t been having much success lately with that facty-ass sort of stuff.
Citizen Alan
Wait, is the ” OBAMA IS WORSE THAN BUSH HE SOLD US OUT!!” tag meant to be ironic or not? Sometimes, I can’t tell anymore.
geg6
This is truly another huge disappointment in the president’s civil liberties record. He’s still no Bush, AFAIC, but he’s not much better. Unfortunately, due to my concerns about the trillion and one problems we’ve been confronted with due to GOP rule for the last forty years and the tentative baby step accomplishments we’ve achieved being at risk and the possibility of watching the country crumble around my ears completely, I have little time at the moment to put this as my highest priority. I do not believe a confrontation on this is a hood idea at this point. If we can solidify some longer term power over the mechanisms of government, we can confront this when we are stronger. I know this will make me persona non grata with some, but I just can’t see how it helps liberal causes rather than hurting at this insane moment of history.
Church Lady
It’s always interesting to watch the people here get so upset when Obama does many of the same things that Bush did, but then find some way to excuse them. Of course, Bush was a war criminal and Obama is the MUP, with stardust shooting out his ass. Face it, no President wants to give up any power and sometimes things might look a little different from the governing side of the desk than they looked from the campaign side of the desk.
I will take the accusations of the “left” concerning Bush’s lawlessness and dictatorial powers seriously when I start seeing the left referring to the current President as “Obamitler”. If they are not willing to do that (drone attacks, anyone? or calling for American citizens to be assassinated?), then I will have to believe that the shrillest attacks on Bush as a War Criminal Monster (and Cheney too) were nothing but political theater.
What is bad for a Republican President to do is just as bad when a Democratic one does it.
lacp
John Cole – Closet Firebagger
celticdragonchick
@arguingwithsignposts:
Yeah. I have some really nasty aviation repair epoxy I think I’m going to start huffing at this rate. Want to join me?
jg
see 11-22-63.
slag
OK. Now I’m sure. They’re just trying to piss us off.
F U Obama! And the ass you rode in on.
There. I feel better.
No. I really don’t. We’re screwed.
LongHairedWeirdo
I will say the only thing I can say at this point….
If he chooses not to invoke State Secrets, then the courts can’t rule it doesn’t apply, and the Congress has no reason to write a law forbidding this.
Now – does that make it *okay*? No. You should be angry. Good and nasty-angry. Because if the courts uphold it, we need that anger to motivate Congress.
Uncle Clarence Thomas
@Corner Stone:
Haw haw haw! smileyface for you!
Rock
I’m pissed that this administration can commit what should be impeachable offenses and I still prefer them over the alternative.
Pancake
LMAO
Well, I guess you can all sleep better knowing that the country is safer….
lacp
This is interesting – if anyone here claimed that the HAMP had wound up fucking people out of their homes, the proud “hippie-punchers” on Balloon Juice would have launched the biggesist blawg airstrike y’all ever saw. Yet an affirmation of full-court Star Chamber elicits…. well, whatever. Anyway, evahbody enjoyed great Ohio speech, right?
Corner Stone
@slag: Stop your whining. You’ll get out there and vote like you should. And you need to get other people out there to vote. Why? Because you know what the alternative is. And as little as Obama’s doing for you now, imagine how little Speaker Boehner will do for you later. Suck it up, Nancy, this isn’t baseball.
Corner Stone
@Uncle Clarence Thomas: It’s an homage.
arguingwithsignposts
@Pancake:
Don’t you have an Israeli bulldozer you can crawl under somewhere?
eemom
@Church Lady:
ya know, you don’t sound like any “Church Lady” I ever heard of.
Just out of curiosity, what church is it that you’re a, um, “lady” in?
Comrade Kevin
@LongHairedWeirdo: The “11-dimensional chess” angle, also known as “wishful thinking”.
slag
@Corner Stone: Yes. Yes I will.
burnspbesq
In my view, which hasn’t changed for years and has been repeatedly expressed here and elsewhere, the dissent gets it exactly right. The state secrets privilege should be treated just like any other evidentiary privilege. It should be asserted on a document-by-document or question-by-question basis, either in discovery or at trial.
That said, the dissent’s view is not now and never has been the law. The majority applies the law as it currently stands just about perfectly. I say “just about perfectly” because there is something very weird in the paragraph that starts at the bottom of page 13552 and carries over to page 13553.
For the life of me, I can’t see how assertion of the privilege in this case, based on what is publicly known about the extraordinary rendition program, doesn’t conceal violations of law.
On balance, this sucks. I have no faith in the ability or willingness of the current Supreme Court to fix it. And I similarly have no faith in the willingness of Congress to fix the Federal Rules of Evidence in a way that would implement the dissent’s view of how the privilege should be administered.
Fuck fuck fuckity fuck.
Corner Stone
@slag: Damn skippy. Though I like to call it a Reality Check. Cuz you know it’s true.
celticdragonchick
@Pancake:
A Russian T-55 doing a jitterbug on you would be entertaining.
burnspbesq
I can’t wait to see what Greenwald has to say about this. For once, he may not go far enough.
celticdragonchick
@burnspbesq:
I agree. Scott Horton is the angry progressive lawyer I am waiting to hear from, though.
eemom
@burnspbesq:
does the court review in camera whatever documents or other info the DOJ contends are covered by the privilege?
slag
@Corner Stone: It is true. It’s absolutely true.
eemom
@burnspbesq:
he’s said some stuff already. I haven’t read it, but the headline looks promising.
Comrade Kevin
@eemom: “She” is a member of Our Lady of Concernopolis, also known as St. Trollia’s.
Corner Stone
@slag: You have a mirror in your house?
Mogden
Torturers and their commanders deserve to be executed for war crimes. If it’s good enough for the Nazis it’s good enough for us.
burnspbesq
@eemom:
In this case, Hayden submitted both classified and unclassified declarations to the District Court, and there was an additional classified submission to the Ninth Circuit during en banc review. Obviously, none of know what was in those classified submissions, but they were persuasive.
There have been no documents for the District Court to review, because it ruled on a 12(b)(6) motion, and the moving party rarely submits anything evidentiary in support of a 12(b)(6) motion – the risk is that if defendant throws a bunch of stuff in front of the District Court, it converts the 12(b)(6) motion into a motion for summary judgment, and plaintiff whinges about not having had an opportunity to do any discovery, so the motion gets denied.
Yes, in my world, in camera review would be a critical part of the administration of the privilege. No different that attorney-client or spousal communications privileges.
celticdragonchick
An interesting article on the origin of the state secrets immunity privilege.
In 1952, a B-29 bomber crashed, and three of its crew members were killed. The widows of those lost servicemen sued the United States under the Tort Claims Act and moved for the government to produce the accident investigation report for the crash. The Secretary of the Air Force filed a formal claim of privilege, claiming that the circumstances of the crash could not be revealed without revealing state secrets, that the plane had secret test equipment on board and was on a secret mission at the time of the crash.
The case was United States v. Reynolds, 345 U.S. 1 (1953). In a landmark decision, the U.S. Supreme Court upheld the government’s claim and denied access to the accident report to the widows’ legal team. This case was a landmark because it established the legal precedent for the state secrets privilege, which has been used by subsequent administrations to prevent the disclosure of various forms of information under civil court cases against the government. In other words, it is a legal justification for covering up violations of individual rights in the name of protecting national security.
What makes this decision particularly odious is that in the year 2000, the accident report was declassified by the government, 47 years after the Court’s decision. It turned out that there was no secret mission. There was no secret test equipment. As reported by Wikipedia, the accident report, “did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force’s case. Many commentators have alleged government misuse of secrecy in the landmark case.”
Just Some Fuckhead
@burnspbesq: Greenwald has already written a little about it. He reminds us of this argument back in the day:
The court clearly failed Obama.
Just Some Fuckhead
@Comrade Kevin: The Last True Democrat.
And Another Thing...
Seems we’ve got a troll eruption going on. Interesting how some people rarely show up unless they think they have an opportunity to conjure up the attitudes of participants in the thread, and then slime said participants based on their own fetid musings.. Church Lady is Exhibit A. Additionally, it appears that in her world analysis/criticism isn’t serious until somebody is called Hitler.
burnspbesq
@Just Some Fuckhead:
Aw, crap. I was hoping to see some actual analysis from Greenwald, but he seems content to just stick out his tongue and say “I told you so.”
kormgar
Ending this shit was, more than any other thing, the reason I supported Obama so damn passionately.
I’d like to say that I’m disappointed in Obama, but that really wouldn’t do justice to the burning pit of anger and despair that has infected my political soul for the past few months.
And the alternative is a party of insane religious nutjobs who have even less respect for civil rights, accountability, and transparency.
Fuck it. I’m done.
Church Lady
@eemom: I’m a long time member of Our Lady of I’m Not a Fan of Organized Religion. My membership in OLINFAR was predated by not only being raised in the Catholic Church (couldn’t bring myself to be a hypocrite about birth control and being pro-choice while trying to raise my children in the Church) but voluntary membership in the Presbyterian Church. I left when my church signed on to an anti-gay marriage ad in our local paper four days before the 2004 election. When I confronted our pastor about it, he insisted that the timing of the ad had absolutely nothing to do with the election. Yeah, right. I hit the door and never went back. At that point, I sort of gave up. The kids were in their teens by then and they had a basis to form an their own opinions about the practice of religion and how they wanted to go about it (both are actually fairly religious and attend services on their own – one at an Episcopal church and one going to mass with friends at the Catholic church), so my husband and I felt ok with just letting it go for the time being.
I still consider myself a Christian, try to live life according to the ten commandments and, crazily enough, still miss the rituals and beauty of the Catholic mass. On the rare occasions I attend Mass (Christmases with my family, my parent’s 50th Anniversary wedding vows renewal, my Dad’s funeral and my mother’s remarriage) I feel in the presence of God in a way I never did in the Presbyterian Church. Someday, if I can find a way to reconcile my beliefs with those of the Church, I will probably go back.
After my long-winded answer above, the shorthand is that I belong to no organized Church.
celticdragonchick
@kormgar:
What…and miss all the fun when Sista Sarah and her circus of teh crazee takes over in 2012?
All I can say is…see you all in church!
It will be mandatory…
Just Some Fuckhead
@burnspbesq: Yeah, he definitely gets the digs in. Here’s another:
Haha.
burnspbesq
If the Mohamed opinion is making you crabby, this isn’t going to change your attitude, even a little bit.
http://balkin.blogspot.com/2010/09/torture-and-littering.html
Jay Bybee is a fucking idiot, who should no longer have a license to practice law.
Church Lady
@And Another Thing…: See comment #23 for the “It’s terrible, but….” defense. It’s a perfect example.
burnspbesq
Crap. I didn’t know until about two minutes ago that health issues had forced Christy Hardin Smith to stop blogging.
Explains a lot. She was always the sane one at FDL.
kormgar
@Church Lady:
In that case you should probably reread comment #23 again yourself. It does not appear to say what you think it does.
It says, rather plainly, that Obama is nearly as bad as Bush on these issues. It then bemoans the fact that the Republicans are even worse.
TuiMel
@Citizen Alan:
You are not alone.
eemom
@burnspbesq:
meh. Yeah, she was sane, especially in 2008 as Lady Jane and her minions descended ever deeper into the Cult of Jane. I do remember being impressed at how Christy’s posts were the only ones to depart from the 24/7 “FDL is neutral, but anyone who doesn’t support Hillary is a misogynist-sexist-Obamabot scum” mantra old Jane had going back then.
Still, ole Christy’s kindergarten-teacher condescension got to one after a while — or at least it did to me.
Damn burnsy — this is our 4th blog together. [sniff]
handy
@Church Lady:
The abillity to hold multiple ideas in one’s head comes a little hard for you, doesn’t it?
fasteddie9318
I’m afraid Church Lady blew her “reasonable centrist” cover by going full
retardwingnut on this one.arguingwithsignposts
@eemom:
Room, get one. ;)
Mo MacArbie
Yeah, yeah, 11-D chess here. Thing is, I don’t think Obama is trying to pull any tricks. I believe he is trying to maintain and expand the powers of his office that were claimed by his predecessor. That’s only natural. And I’m not happy about that.
But the whole constitutional crisis of the Bush years arose because he dared the other branches to stop him and they didn’t. They still haven’t. This thing works slowly. Hopefully the Supreme Court will knock it down. Failing that, hopefully Congress remembers its coequal. Failing that, hopefully We The People can remind the President that we didn’t elect a tyrant.
Hopefully hopefully hopefully. Be angry but don’t give up. We need everybody.
Nick
@kormgar:
Odd, since he never actually came out and said he would stop it during the campaign. FISA, anybody?
It’s always funny to see people say “I supported X because I thought he would do something he clearly never intended on doing”
burnspbesq
@eemom:
I can’t quit you.
Heard anything about how Cassie is settling in at Princeton?
fasteddie9318
@Nick:
Nick, I have to agree with you there. Obama’s position on civil liberties was the reason why I supported him so damn tepidly. His administration’s stance on executive authority and secrecy pisses me off no end, but it never surprises me.
stormhit
@kormgar:
Bye.
kormgar
@Nick:
On the contrary, governmental transparency and accountability was one of his core platforms. Did you pay any attention at all to his campaign, his platform, his speeches, or even his legislative record (prior to September 2008 at least)?
In any event, I was well aware of Obama’s FISA vote when I voted for him. The moment he cast that vote was my first real twinge of dread. But even then I never suspected that he would be as bad on these issues as he apparently turned out to be.
NR
You all need to sit down and shut up or Sarah Palin will be elected president in 2012.
El Cid
@NR: These days I can’t tell whether comments like these are sarcastic or not.
homerhk
Ho Hum, I wonder – like I have often wondered in GG’s comments threads – whether anyone on this thread (apart from Burnspbesq) has actually read the opinion and the dissent. From my reading, the dissent was based on the fact that even though there were legitimate state secrets this did not necessarily mean that Jeppesen was unable to defend itself against the claims and that therefore the case should be dismissed. Rather Jeppesen should set out its defence and a decision could be made then. Both the affirming and the dissenting opinion (and by the way, the plaintiffs) all accept that there are some legitimate state secrets asserted by the DOJ.
The affirming opinion made the point of saying that the judges had reviewed the government’s assertion/certification and that the judges’ independent conclusion agreed with the government that it was not asserting state secrets to avoid embarassment, scrutiny or to hide illegality. No-one here knows what that evidence might be but that is the judges’ conclusion.
You may want to add this to the list of the terrible things that Obama has done on civil liberties, but if you read the judgment you will see that the doctrine of state secrets is a pretty well established doctrine in the US; it was not, for example, a Bush invention – the leading precedents go back to the 1950s (and in some cases to the late 1800s).
It’s not that Obama has continued Bush’s way of operating, it’s that Obama – as President – is entitled to rely upon established doctrine to protect the US government. That may sound scary to you, but that is, in fact, the law. It is the law in many other European countries whose socialism and enlightenment people seem to love (note how Sweden was one of the countries which captured one of the defendants in this case).
My overarching point is that this is not a case of simple black and white, right or wrong. You can’t just claim that assertion of state secrets is contrary to civil liberties because the Courts have consisently allowed for such a doctrine to exist. Even the defendants in this case accepted that there were some state secrets involved.
And, if you read the judgment, any concerns about the Obama DOJ “legitimizing breaches of the constitution” or some such, the judgment is in fact narrowly drawn and there is a warning to other courts to also apply the state secrets doctrine narrowly.
eemom
@homerhk:
Absolutely right and a fine post — but I increasingly find that it’s a waste of time trying to convince this crowd of that point, in this or any other context.
Just Some Fuckhead
Odd, the ACLU considers it pretty cut and dried. What do the Obots know that the rest of us don’t? Hmm.
lawguy
@geg6: Not as bad as Bush, when did Bush claim that he had the legal right to murder American citizens away from a battle field?
lawguy
@Mo MacArbie: Have you paid any attention to the make up of this Supreme Court? I expect it to be 9-0 for Obama and state secrets.
Citizen Alan
@burnspbesq:
He doesn’t need a license any more. He’s a federal judge with lifetime tenure.
Corner Stone
Firebaggers! The whole damn lot of you! Argle bargle! Aaarrrrggghh!!
Corner Stone
@homerhk:
You are right. Some here may have been a little hasty on the trigger.
I guess we have no choice but for the state to determine if the state’s interests are being protected.
Corner Stone
@NR:
Actually, re-election for Obama may be a challenge but the real issue will be in 2016. Whoever the D’s put up we will all need to come together, stay quiet and support him/her because whoever the R’s put up will be much worse!
And then their re-election in 2020 will probably be a tough climate so we’ll need to temper our differences until after that’s over as well.
But the real struggle will be 2024, and we should keep that in mind and be careful what we say as well…
Ah, to hell with it! Just shut your damn pie hole you lousy firebagger!
homerhk
Corner Stone, that excerpt makes it clear that the independent judiciary checked the government’s assertion that the invokation of state secrets met the revised criteria issued by Holder in late 2009. I don’t know whether you consider the independent judiciary part of the state – maybe it is, but it is one of the checks and balances as set out in the Constitution.
NobodySpecial
@geg6:
Given that half the folks here not termed ‘firebaggers’ have already conceded the House and Senate, what longer term power do you think we’re going to get as Democrats OR liberals?
Also, isn’t this a ‘liberal cause’? If so, you’re suggesting that we should throw over ‘liberal causes’ at any opportunity because…what? The opposition opposes it and hates us? Because they’re at the peak of their powers, down 40 members in the House and with less than 45 Senators? Because we’ll get some mythical liberal cause passed in the pre-election time like global warming legislation or a long-term jobs program?
Pull the other fucking leg already.
Corner Stone
@homerhk: It just seems odd to me that every case ends this way.
All of these people that were tortured can not somehow be that damn dangerous to the national security of the people of the USA.
That means that in some way, either our methods/procedures/locations or our actions in some way risk national security.
IOW, to distinguish between the two, IMO the people would not be put at risk by trying these cases, but rather the actions of the state.
That’s a little clumsy formulation on my part. But it boils down to me saying IMO the state is using its authority to protect acts that we the people could bear to be seen brought to light.
sparky
yuck. but, not exactly a surprise. the judiciary seems to be as supine as congress. perhaps this is the way it goes in an empire: all the institutions still appear to be functioning, but in reality they don’t perform their role(s), leaving the field to the all-powerful Executive.
and yea, it’s a crap decision on the merits and an expansion of the government’s power to shut down the courts.
interesting that most of the usual Obama supporters are nowhere to be found on this post, while, in contrast, an opportunity to lambast Greenwald will bring them out in force.
@burnspbesq: (1) in case you didn’t see it yesterday, i appreciate that you took the time to respond to my inquiry the other day.
(2) with respect, i think that is not a correct reading of the procedural memo the court references.* the limitations you mention shall come into consideration if and only if there is no possibility that the information at issue could have any effect on national security. in plain english, the “limitations” are boilerplate recitals, not to be taken as substantive curbs on the invocation of the privilege.
*i observe that this is, as usual, the policy of the Obama administration: issue something that “looks good” but is, on closer inspection, an empty shell. is anyone noticing a pattern here?
edit: @homerhk: ha ha! good one! what, whut?
Corner Stone
@sparky:
They couldn’t find a way to blame Congress.