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Major Defeat for Bush/Obama Position on Secrecy
The first sign that the Obama DOJ would replicate many of the worst and most radical arguments of the Bush DOJ was in the Jeppesen case, a lawsuit brought by five victims of the CIA's rendition and torture program (including Binyam Mohamed). The Bush administration had argued that the entire "subject matter" raised by the lawsuit (the rendition program) was such a gravely important "state secret" that the court could not consider any lawsuit relating to that issue. That argument was a by-product of one of the Bush DOJ's most controversial actions: its radical expansion of the "state secrets" doctrine. Whereas that privilege was once an evidentiary privilege enabling the Government to declare specific documents too secret to use in litigation, the Bush DOJ converted it into an all-purpose shield allowing them to have entire lawsuits dismissed even wherethe lawsuit alleged that the President's conduct was illegal.
The District Court in Jeppesen had accepted the Bush DOJ's argument and dismissed the lawsuit, and on appeal in February, the Obama DOJ -- to the obvious surprise of the judges and in a reversal of everything Democrats claimed they believed during the Bush presidency -- told the Ninth Circuit panel that they embrace the Bush DOJ "state secrets" position in full (a position they've since repeated in other cases).
Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security
In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law:
Read that last sentence -- that, said the court, is the power of lawlessness which the Obama administration was attempting to preserve for itself.
Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake." Quoting the Supreme Court's language in Boumediene -- which in 2008 declared unconstitutional the Military Commission Act's attempt to abolish habeas corpus -- the court today noted that equally imperative for the court is to preserve "freedom's first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." The court concluded that applying the secrecy privilege on a document-by-document basis, rather than allowing the Government to abuse the privilege to bar citizens from vindicating their legal rights in court, preserves all of those competing interests. In short, presidential assertions of secrecy are neither absolute nor supreme.
Today's decision is a major defeat for the Obama DOJ's efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny. Given how Obama recently emphasized how committed he is to defending government secrecy powers in court, it it highly likely the Obama DOJ will attempt to appeal this ruling further -- to a full 9th Circuit panel and/or to the Supreme Court -- but in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.
* * * * *
I'll have an interview posted shortly with the ACLU's Ben Wizner, lead counsel for the plaintiffs in this case.
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36 Comments so far
Show AllACLU is definitely getting a donation once I get a good job.
I'll be happy to donate to them too after all the trouble ACLU had to go through just to get Obama to even release the torture memos. I'll bet ACLU had a lot to lose in resources for all this. They're trying to fight for people's civil rights but sadly they have to go through hell to pressure Obama to do even one little right thing. When O'Reilly was trying to get Obama to roll over and say that the surge worked last year on the campaign trail, O'Reilly didn't give him any money to make him do it whereas the ACLU had to spend hell just to get Obama to do the right thing. Maybe the Left is really privatized ?
I'm just glad the ACLU is truly dedicated to its principles. You think the Thomas More (no relation to our Thomas More) Law Center would have ever pursued the Bush administration in court like this, over and over?
Great! Now maybe we could ask groups like the ACLU to go to court to see if we can begin some prosecutions!
Every time I see a glimmer of hope for the Obama administration something like this comes along and crushes that hope. I can think of no rational reason for such a stance, only the naked desire for power that transcends law and morality.
I have that same feeling getting to me. Unfortunately, most people don't keep up with this kind of news. If most people had heard from GG, it would have been interesting to see the outrage and how Obama would handle it. I also think that it is what is taught in high school and college about US history and government that is the issue, or shall I say lack of what's taught about them. I'll bet that if I read more articles from this site, Alternet, TruthDig, etc ... I'd learn a hell of a lot of history. Dailykos and Huffpost are overkill btw so I didn't take them seriously.
Glenn Greenwald is probably the best blogger around on this subject. He's been onto this for years and by publicizing it and getting his readers motivated, he's quite possibly a cause of whatever shifts Obama's made in his wretched positions. I enjoy his stuff because he has a finely logical mind; something rarer than it ought to be. I don't know how Salon is doing for cash but I'm sure a donation would be welcome as a "thank you" for running Glenn's blog.
Rainborowe
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George Wanker Bush XLIV is taller and skinnier than George Wanker Bush XLIII. His hat size is smaller too. So 43 could not have passed on to 44 the black uniform, jack boots and high peaked cap his grandfather got in 1938 from his German friends in Berlin. 44, unlike 43, doesn’t care to look like a Doberman Pinscher. So his uniform is more like the one Churchill wore. Less menacing but authoritative. When are we going to see him in it?
Ha!
Too bad this kick in the teeth to the Obama team will be overshadowed by celebrity style coverage of Specter's switch....
I reckon Obama figures if the Republicans do it, the Democrats can too! His true colors are showing quite vividly.
This is not about a Bush or Obama issue of power.
This is our courts and Judges growing a back bone and using the rule of law to protect the Constitution of the United States of America.
Which in turn protects us all.
I favor the move to take this issue of secrecy to the supreme court. And I would fully expect a 9-0 vote in favor of the stated decision.
Because , sooner or later, the Supreme court Justices must start passing constitutional decisions that protect us, and thier power.
For if they sell out, give in , or stop protecting the Constitution, WE ALL LOOSE.
Born Free Men
My Bible is the Constitution of the United States of America, for with out it, we are nothing.
bornfreemen -
There are some golden kernels of real truth tucked away inside some of your otherwise grandiose, sweeping assertions (which I readily confess, I'm not sure I really understand).
You are absolutely correct that we should give credit where credit is due. All should give thanks for having an independent federal judiciary that from time to time stands up, and stands up tall, for both the letter and the spirit of the Bill of Rights. Three cheers for the 9th Circuit Court of Appeals! And notice how it was the Supreme Court's prior precedent from the Gitmo litigation that provided the rationale for this courageous ruling.
I, however, absolutely dread the prospect of the Obama DOJ seeking review in the Supreme Court as currently constituted. You seem to think it would be 9-0 affirming this narrow view of state secrets' privilege. I fear it would go 5-4 exactly the other way - with the same five Justices who today upheld the FCC's right to fine broadcasters for a blurted TV expletive writing the lead opinion. Be very careful what you wish for here.
I agree with you (and disagree with Glenn's particular slant) on the fundamental notion that all this has little to do with Bush power or Obama power. It is much more about backbone - backbone on the part of the men and women in the black robes. What needs to be kept in mind, however, is how slender a reed this sometimes is for us all to lean upon.
Yes, the Supreme Court and lower federal courts have stood magnificently tall from time to time - Brown versus Board of Education, NY Times versus Sullivan, the Nixon administration's assault upon Vietnam antiwar movement, Watergate, most recently US military detainees' rights to use habeas corpus, and many other examples.
But this is also the branch of government that once held all dark skinned people were subhuman, created the Jim Crow doctrine of separate but equal out of whole cloth, conjured up the notion that huge, profit seeking corporations were just like real human beings in terms of civil rights, ruled that Americans of Japanese descent could be carted off to concentration camps without redress during wartime crisis, and saved us all from George Carlin's seven dirty words.
Damn right, if the judges sell out and stop protecting the Constitution, we all lose.
But you can only go to the well so many times - and every time you do, there's a risk you may get a stinker ruling like Dred Scott. It's happened before.
And on issues like torture, warrantless wiretapping, and executive branch war powers to wage endless war, you lose even once you can lose it all forever. Too close for comfort, methinnks.
Bill from Saginaw
Aye Bill. The Constitution is our country. Riddle the constitution with holes and we lose the country. IT is that plain and simple.
I would urge you to review SC decisions over the last several years. It might alter your opinion of exactly who defends justice.
I find this good news, but there is a cynical part of me that thinks that the concept of 'unitary executive' is not dead in the minds of the judiciary, but only slumbering while there is an alleged 'liberal' in office. Heaven forbid that the Unitary Executive be a liberal black man with ambiguous loyalties. I knew the 'right' would start frothing about 'dictatorship' the instant a liberal black president started actually USING the powers that GWB usurped for himself.
This is outstanding news.
Let the lawsuits proceed!
P.S. My suggestion is to refer to the postion (for maximum impact) as the Bush/Obama/Cheney/Obama/Yoo/Obama/Addington/Obama/Rumsfeld/Obama
"Major Defeat for Bush/Obama Position on Secrecy"
This is actually a major win for Obama in political poker. He released the memos and pictures so that someone else would prosecute without his getting tied up in a Republican witch-hunt and put in the position of investigating members of his own party who were complicit.
E Z
Then why did ◎ power up and re-double the lawsuit, to extend bu$h!t era " national security " trumping of the law.
If he was all so sly and mighty, why not just do nothing ( by not actively extend bu$h!t era " national security " arguments ).
Somehow you are missing the important element, that _ ◎ b y s m a l _ actively sought to prevent this court case from continuing. That's in my mind, the complete opposite of
"released the memos and pictures so that someone else would prosecute…"
◎ was caught red handed, as he attempted to forestal and defeat prosecutions and legal access to the court system, which furthered his position of executive power and unitardedness.
Sure he's otherwise finessing all sorts of levels of indirection about avoiding a "Republican witch-hunt," but what does that have to do with this ?
Namaste
Scarabocion
I've wondered about this myself. I don't trust Obama, or almost any other politician, but if this is indeed a calculated strategy, it might serve to deflect some of the right-wing vituperation, since subsequent prosecution for war crimes would seemingly come from an independent DOJ acting on its own initiative under its constitutional obligation to respond to the exposed infractions of the previous regime, and in defiance even of the expressed wishes of the current centrist executive for "reflection, rather than retribution" and of the severely compromised/complicit legislature.
The entire world has witnessed 8 years of dubya's scourge, and with subhumans the likes of rove, cheney, rummy, addington, and dubya himself, still running around plotting, how in the hell does anyone, let alone Obama, feel comfortable with rendition in place, is beyond comprehension. Thank goodness for the ACLU and a Judge with a conscience that understand the meaning of law. If this BS isn't outlawed now, it will be only a matter of time before another moron comes to power and the cycle begins all over again.
The end of the human race will be that it will eventually die of civilization. ~Ralph Waldo Emerson
Good news indeed! Could this be a sign that the Judiciary is somehow developing some backbone?
Could it be trying to assert Madison's view that it is the last bulwark against tyranny?
They have a very long way to go, but this is a good sign.
The Memos. The ACLU might have forced that. But BO did release them and primarily non-redacted too.
It is easy to forget just 12 months ago. The leering "Decider." His hit-man trying one last time to create War w/ Iran.
Obama Captains a Ship of Piracy. No he has not changed it's basic nature.
But unlike McCain BO was not with William Kristol recently at the FPI bash crying for war wherever Muslims gather. BO has put his hand out to Muslims and Iran. I remember "The Decider".
BO is a lot wrong, but he is some right as well, something I could never say about the GOP which destroyed this country so well these past eight years.
The 9th Circuit Court of Appeals.
Sad Irony Bybee is allowed in that important courtroom without hand-cuffs.
While the court decision to be lauded it does beg the question.
Just how PARTISAN are the courts? If GW Bush had still been in power would the decision have been the same?
Is the backbone of the Judiciary based upon there being a Democrat as President?
Apparently Bush did win his points the first time before the courts.
Obama was swept into the White House on promises that, inter alia, he would repudiate the near-dictatorial powers Bush had arrogated to himself and restore transparency and accountability.
He has promised to close Guantanamo after a year, but there are multiple, credible reports that abuse of detainees continues under is administration. He has praised torturers and murderers as dedicated public servants acting in good faith, retained them in the military and intelligence services, and promised them impunity. His executive order banning torture was something he was forced to do, all smile and no teeth. He continues illegal spying on American citizens and opposes accountability.
The "change" we were promised appears to have referred to Mr Obama's positions on the issues, and not in the way the US conducts its foreign policy.
""According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.""
I read this loud and clear obama. This is one thing I can believe you were confronted with as a condition of your nomination and election as president. Just as woodrow wilson sold out the american people by signing the Federal Reserve Act of 1913 to become president, that established a private central bank in charge and dictating power in this country when those before him knew how dangerous a private central banking concern is to the integrity of a country, this is just one of the favors you agreed to for your becoming president.
Unless you do have a 'change' of heart and start working on those real changes you blurted out all through your compaign, the real change will be from a hope of promises to the shock of promises made for the others. And you continually act against those promises for the benefit of your handlers.
After all, we just elect you and the congress. Once that is done, the real enemies of the nation, lobbyists, start filtering in with their bags of money and legislation they want passed to benefit them.
After all again, more than just a few well known people who had studied w & dick's strategies and tactics warned that whoever(at the time this meant a dem and you are he) became president that they would not give up what w & dick have worked so hard to make what is illegal, appear to be legal and justified.
... and on the road to tyranny.
... and sickening.
This was a golden opportunity for BO to do the right thing, change a travesty from the bush crime syndicate and quiet the progressive left. He dropped the ball, big time. We are left with the picture of Obama looking suspiciously like a warmed over bush. Unacceptable.
... and sad.
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Bring America Back !!!!........As Greenwald alludes to here, the Dept of Justice uses its Appeal process to deny and deprive justice to those who have
actually beaten them in trial courts.......Justice Delayed is Justice Denied !
****This is basically Government Against the People, NOT for the People it serves!!!
****On some whistleblower cases that were won by activist whistleblowers, the Solicitor General of the US intervened and actually ordered the DOJ to NOT
Appeal lower court rulings====thereby giving the whistleblowers their victory
and whatever compensation they were entitled to !!!!
****Where it is obvious the DOJ is using appeal rights to Delay and Deny
otherwise already victorius court decisions. I highly suggest a Direct Request to the Solicitor General to Intervene.
****This is one way the DC Culture of Corruption can be circumvented from its almighty power in judicial matters !! I hope to study, when time permits, how far and extensive these powers of the Solicitor General range, and the
mechanisms which may set the process in motion !!!
Our new Prez is prone to want a full taste of the intoxicating powers of the Executive, voting for FISA immunities, and "looking forward" instead of backwards===of course all the campaign promises, hope, and change then goes down the Tubes--as most have already !!! NO real change so far !!!
Obama wants to play soldier with crusades to Tora Bora, take smart salutes from the honor guard, and get fitted for his very own flight suit !!!
******Atta boy Barak, Mission accomplished !!!!
Transparency?....Accountability...? Bah
"State Secret": Where all the extortionist-like bank bailout money is going.... perhaps to create more monopolies for the privileged.