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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.
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.
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.