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The Obama Administration, Middle Ground, and the State Secrets Doctrine:
Jonathan links below to the news coverage of the Ninth Circuit oral argument at which Doug Letter, an attorney for DOJ, announced that the Obama Administration had elected not to change its position on the state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an "extraordinary rendition" case.

  It's always hard to know what's going on in a new Administration. But my initial reaction is that I'm not particularly surprised. Here's my thinking. Much of the leadership of the Obama Justice Department served as officials in the Clinton Justice Department. But the Clinton Justice Department wasn't necessarily modest when it came to claims of executive privilege. If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case. From this perspective, the goal, as reflected in DOJ's announcement today that it will review every state secrets case, should be a return to a case-by-case evaluation of when the state secrets doctrine is appropriate.

  If the Mohamed litigation had arisen in the Clinton years, I would have expected the Clinton DOJ to assert the state secrets privilege. Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult. If you're in a position of representing the executive branch, that's a very weighty concern even if you condemn what happened under the previous administration.

  I should add that this isn't necessarily a defense of the Obama Administration. Some readers take the principled view that the state secrets privilege either shouldn't exist or should be dramaticaly limited. If you take that view, then the Obama Administration's position remains deeply troubling. My point is only that I think the folks running DOJ are cut from a more institutional cloth: To borrow from Bill Clinton in another setting, they likely see themselves trying, for better or worse, to take the state secrets doctrine and "mend it, not end it." That's my guess, at least.
Jack Black (mail):
The oral argument is here.
2.10.2009 1:20am
Matt12 (mail):
It is surprising that the DOJ did not at the very least ask for a postponement to reconsider its petition and how to deal with the blowback.
2.10.2009 1:57am
Tom Tildrum:
Prof. Kerr,

What are some instances where the Bush DOJ invoked the state-secrets doctrine that you believe the Clinton/Obama administration would not have?
2.10.2009 6:49am
Anderson (mail):
As I was guessticulating earlier, the connection w/ foreign governments is a plausible basis for pleading the privilege.

I would be very disappointed however to see it pleaded with the goal of protecting the U.S. itself from embarrassment, however, which seems to've been a traditional object of the privilege.
2.10.2009 7:43am
Howard Gilbert (mail):
Jeppesen Dataplan didn't torture anyone. All they did was to file flight plans and provide weather forecasts to pilots they did not employ of two planes they did not own. All this case stands for is the ability of lawyers to sue on behalf of foreigners any company who did business with the US government in response to government policy they abhor. The use of the Secrets doctrine is simply an appropriately inappropriate response by opposing lawyers to a case that should never have been brought against this defendant. There may have been torture and it may have involved the CIA and Morocco, but the only actual torture in this case is the tortured logic that tries to involve a company that makes hotel reservations for flight crews with the actions of national governments.
2.10.2009 7:58am
Ugh (mail):
Shouldn't the proper response of a court if the government asserts the state secrets privilege to enter a defaul judgment against the government and grant the remedy the plaintiffs seek (unless the remedy itself exposes the state secrets)? I suppose that could lead to abuse, but the notion that the government can just say "state secrets" and get the case dismissed outright seems, well, abusive in and of itself.
2.10.2009 8:25am
Anderson (mail):
Jeppesen Dataplan didn't torture anyone.

Neither did Eichmann. What is your point?

Shouldn't the proper response of a court if the government asserts the state secrets privilege to enter a defaul judgment against the government and grant the remedy the plaintiffs seek (unless the remedy itself exposes the state secrets)?

That suggests potential abuses on the plaintiff end of the stick. I would myself be tempted to allege that I was tortured at some undisclosed site in Poland.
2.10.2009 8:50am
ReaderY:
I don't see the difference between this case and partial birth abortion. In both cases a non-person temporarily becomes a personhood en route to termination or similar disposition. In both cases the painfulness of the termination procedure involved is simply irrelevant.

Nothing in the Supreme Court's partial-birth abortion jurisprudence has even remotely suggested that a government can be required to prohibit such procedures. And the painfulness of the procedure to the terminee may be constititionally relevant to whether the government or choice-maker can voluntarily refrain from such procedures, but the whole thrust of the jurisprudence has been whether the Constitution permits a prohibition -- there hasn't been a hint of a suggestion that it ever requires it.

A non-person prior to entry into this country is not logically different from a non-person prior to birth. If temporary entry and its resulting temporary personhood constitutionally precluded termination actions, we wouldn't be permitted to repulse an invasions, and the Supreme Court's partial-birth abortion jurisprudence would be stood on its head.

I find it utterly hypocritical that people could claim there is no rational justification for prohibitions on abortion, yet not claim there is justification for terminations of this sort, but claim that the identical reasons -- the exact same claims the practices involved are barbaric and contrary to our tradition of civilized humanity and beliefs in universal compassion for "the whole human family" -- are nothing more than religious dogmas violative of the separation of church and state in one case, yet legitimate bases for government action in the other.

If these types of arguments are not grounds for government decision-making in the one case, they can't be grounds in the other. And if are willing to admit they can be grounds for government decision-making in the one case, we ought to admit this in the other.

Otherwise, the religious status of an argument would depend solely on whether one happened to agree with it or not -- that is, whether or not one shared the religion. The question of whether an argument is a religious argument or not has to depend on criteria different from whether one thinks the argument correct or incorrect.

It's argued that we have different secular interests -- that, for example, our behavior effects our relations with other countries. But if the real interest is not in what we do as such but in what others know about what we do, that interest could be perfectly well met with secrecy, i.e. privacy -- and courts intruding into these matters and publicizing them would be interfering the privacy interest involved. After all, this is why, in Doe v. Bolton, the Supreme Court held that it was unconstitutional for judicial bodies to interfere with abortion termination decisions. Are the reasons for judicial interference any different here?

The word "person" used in the Bill of Rights no more has "extraterritorial application" than it has "prenatal application". If lack of application of the word "person" turns compassion arguments into religious dogma in the one case -- if these arguments are constitutionally legitimate only if applied to persons -- this ought to be true in the other case as well.
2.10.2009 8:52am
Bart (mail):
Every single President without exception has asserted or supported a state secrets privilege to keep civil suit fishing expeditions from disclosing classified materials to our enemies. Why should Mr. Obama be any different?
2.10.2009 8:58am
c.l.ball (mail) (www):
Unlike most state secrets questions, the distinction in this case is that the "secret" in question is not secret -- US officials, other governments, journalists, and private employees (including one from Jeppesen) have already revealed the information. By contrast, in cases like Reynolds the nature of the electronic equipment was still secret. The government could avoid revealing any national security secrets -- what country the person was flown to -- by stipulating that it transported the defendants to a third country where they would be harshly treated to garner information. Of course, if the "secret" is that it was sending people to be tortured, it is clearly using the privilege to hide illegal acts, not preserve secrets qua secrets.


Jeppesen might have a defense that it only provided information to the US, not that it committed the bad acts. Of course, if someone knows that a person intends to break into a house and provides that person with directions to the house, could he be civilly liable for having done so?
2.10.2009 9:47am
Matt12 (mail):
Because someone may be tempted to confuse ReaderY's verbal diarrhea with logic and insight, I'll just say now that ReaderY is absolutely nuts.
2.10.2009 10:12am
11-B/2O.B4:

Jeppesen Dataplan didn't torture anyone.

Neither did Eichmann. What is your point?


GODWIN'D. Boy, that didn't take long. Are you suggesting, sir, that the travel corporation is really the evil mastermind behind the whole rendition process? Have they been holding secret meetings and dispensing orders to national intelligence agencies? Perhaps they've invented a mind ray that they are using to control POTUS to instigate rendition as a method of increasing their business opportunities?

Or is it more likely that the company has a larger contract with said intelligence organizations, and routinely performs these services without any particular organizational knowledge as to the nature of whatever missions the operatives are on? By your logic, if Bush were to be tried for "war crimes" as the Code Pinkers advocate, then every company that legally participated in the transport of US troops to the middle east would be financially liable for any damages inflicted by those troops?

This is reaching. This is logical soup, a morass of politics and greed masquerading as legal opinion.
2.10.2009 10:25am
Assistant Village Idiot (mail) (www):
I can see why people of moderate temperment, especially those with relevant experience, would prefer invoking on a case-by-case rather than a blanket one. That is also likely in practice to result in fewer questionable acts. However, there is nothing in such an approach that prevents abuses of equal magnitude to anything done by another administration.

The appearance of greater protection does not comfort me.
2.10.2009 10:27am
Crust (mail):
Are there pre-Bush precedents for dismissing suits altogether (the alternative being to exclude certain evidence) based on the states secret privilege?

As c.l.ball points out, an additional issue is that at least the big picture "secrets" in this case are not secret, they've already been revealed by the press, other governments, etc. (Although there likely are some details that are secret it's hard to imagine how those couldn't be handled by invoking the privilege merely with respect to the unredacted versions of certain documents, etc.)

Finally, as Anderson hints, a third problem here is that the government may be seeking to protect itself from liability (rather than legitimately protecting secrets) by invoking the privilege.

There probably is someone somewhere who thinks the states secret privilege should be entirely revoked, but e.g. even such civil rights "extremists" as the ACLU and Glenn Greenwald support a limited states secret privilege. But if we are going to accept it in this instance, it seems to me that's pretty much a Bush-style blanket acceptance of the privilege at least whenever a foreign government is involved.
2.10.2009 10:28am
MarkField (mail):

I would myself be tempted to allege that I was tortured at some undisclosed site in Poland.


Wouldn't being raised in Mississippi suffice?
2.10.2009 10:37am
Just an Observer:
If the Obama DOJ is going to review every case where state-secrets privilege is asserted, I must wonder what the criteria will be for distinguishing "good" cases from "bad" cases, and if the government will articulate that criteria.

As someone who thinks the privilege has grown malignantly, I would favor legislative action to define some limits. But the political constituency for such reform seems to be shrinking even more, with the establishment circling into the mode of "look forward, not back." It seems to be in no one's political interest to pursue disclosure of ugly facts.

I think Orin's point about institutional interests is a good one. I also wonder if the Leahy-Kennedy-Specter bill reported last year could get 60 votes in the current Congress. (For those who prefer preditested press handouts, here is Leahy's) If it passed, would Obama sign it?
2.10.2009 10:38am
Tony Tutins (mail):

Jeppesen Dataplan didn't torture anyone.

Neither did Eichmann. What is your point?

Who was Tim McVeigh's travel agent, and can the Oklahoma City bombing victims recover from him? Or, if Tim did not use a travel agent, can we sue the AAA who provided a Trip-Tik from Kansas to Oklahoma City? How about the Shell station he stopped at along the way?

The commenter's point was that making flight plans, and fuel and hotel reservations, does not make one complicit in torture, any more than providing driving directions would make MapBlast complicit in mass murder.
2.10.2009 11:03am
Crust (mail):
Tony Tutins, the difference between Jeppesen Dataplan and McVeigh's travel agent is Jeppesen Dataplan likely had a good idea of what was going on and McVeigh's travel agent very likely did not. Is it really necessary to point this out?
2.10.2009 11:07am
Thomas_Holsinger:
Professor Kerr,

You are comparing apples to oranges.

Several thousand Americans were murdered by foreign terrorists on 9/11. Thereafter the Bush administration was subjected to legal attack on security secrets on a scale unimaginable during the Clinton administration.

The physical and legal threats to America during the Bush administration justify major, major policy changes in assertion of Executive privilege in security matters.

"If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case."

Pre-9/11 methods produced 9/11 results, and will again.
2.10.2009 11:13am
Crust (mail):
Orin Kerr:
Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult.
Is there any reason to think this concern couldn't be addressed by an evidentiary use of the privilege? And BTW Orin, is it definitely true that the plaintiffs seek to expose still secret details of the program? Might they not be able to make their case purely based on the public record?
2.10.2009 11:16am
Just an Observer:
the difference between Jeppesen Dataplan and McVeigh's travel agent is Jeppesen Dataplan likely had a good idea of what was going on and McVeigh's travel agent very likely did not.

As I understand the case from the oral arguments, the (alleged) nexus between the defendant and the government is quite material. The ACLU says it has independent, non-secret evidence that Jeppesen knew these flights facilitated torture at the destinations. But the government says that even to confirm or deny a relationship between the travel company and the government is a state secret, or Jeppesen could not even present a defense without spilling secrets, so the case cannot go forward.
2.10.2009 11:22am
Interlocutor (mail):
Thomas Holsinger,

I am not familiar with any claim that the 9/11 plot was aided by the disclosure of classified evidence because of a previous administration's failure to invoke the state secrets doctrine. If that is the insinuation you intended to make, could you provide a cite?
2.10.2009 11:23am
Tony Tutins (mail):

Jeppesen Dataplan likely had a good idea of what was going on

I forgot the well-known chattiness of the CIA. Hopefully Panetta can change their culture:

PANETTA:
(Pointing at extraordinary rendition agent) YOU! . . . ARE A (very in-his-face:) BLAH-BER-MOUTH!

ADM. BLAIR:
(Jumping out of his seat) Leon!

PANETTA:
A BLAH-BER-MOUTH! . . . YOU! . . . BLABBERMOUTH! . . . (indicating the door) OUT! . . . OOUUT! . . . OUT!

EXTRAORDINARY RENDITION AGENT:
Well, I've had enough!
2.10.2009 11:26am
FWB (mail):
The Framers saw the explicit need to grant Congress authority to hold parts of their deliberations secret, proving that the power to keep secrets DOES NOT implicitly exist in a government such as ours. Where is the equivalent grant for the Executive and/or the Judiciary?
2.10.2009 11:30am
Interlocutor (mail):
Also, to those people who are defending the doctrine, it's worth noting the recent history of the Reynolds case. When the records related to the crash that was at issue in the case became public, there was one oblique reference to the existence of secret technology being on the plane. They did not, however, disclose the nature of that equipment; they just said that something secret had been on the plane.

I am not arguing that state secrets exceptions should never be invoked. I do think that this story should motivate judges who are presented with invocations of the doctrine to ask to see inside the black box.
2.10.2009 11:30am
Tony Tutins (mail):

The Framers saw the explicit need to grant Congress authority to hold parts of their deliberations secret

In sharp contrast, the Framers saw the explicit need to make the President disclose information:

He shall from time to time give to the Congress Information of the State of the Union
2.10.2009 11:41am
Oren:



Several thousand Americans were murdered by foreign terrorists on 9/11.

No, several thousand godless unamerican NYC (which, as you will recall, is not real America) sodomites were killed. Why real American should give a hoot is beyond me.
2.10.2009 12:06pm
Anderson (mail):
Wouldn't being raised in Mississippi suffice?

I was actually the victim of extraordinary rendition to Mississippi, an act perpetrated on a minor, no less.

My suit likely would've been dismissed under the "parental privilege" doctrine however.

A doctrine which I confess, having succeeded to my predecessors in exercising such authority, I am now inclined to defend. O the hypocrisy!
2.10.2009 12:18pm
Oren:

My suit likely would've been dismissed under the "parental privilege" doctrine however.

A doctrine which I confess, having succeeded to my predecessors in exercising such authority, I am now inclined to defend. O the hypocrisy!

LOL. The Orin principle seems to be much more widely applicable that he initially let on.
2.10.2009 1:08pm
Thomas_Holsinger:
Interlocutor,

I suggest you read Amy Zegart's Spying Blind: The CIA, the FBI, and the Origins of 9/11.

Professor Kerr's opening post assumes that security policy is suis generis and not associated in any way with threats by foreign enemies, i.e., he is willfully blind to the major difference between war and peace.

You and he are engaging in sophistry.
2.10.2009 1:19pm
NTB24601:
Just An Observor:

As someone who thinks the privilege has grown malignantly, I would favor legislative action to define some limits. But the political constituency for such reform seems to be shrinking even more, with the establishment circling into the mode of "look forward, not back."

I agree that we need a legislative solution. I'm confused, though, on why you feel that the political constiuency for reform is shrinking. Isn't enacting a statute that defines how the privilege may be exercised in the future "looking forward"?
2.10.2009 1:21pm
Just an Observer:
I agree that we need a legislative solution. I'm confused, though, on why you feel that the political constiuency for reform is shrinking. Isn't enacting a statute that defines how the privilege may be exercised in the future "looking forward"?

Yes, if you literally believe that euphemism. Yours is a good argument to make in the court of public opinion.

But I worry that many of those who say they want to look forward instead of back really mean, "Let's not go there at all." I am not optimistic about 60 senators doing anything to empower those claiming to be aggrieved by rendition, torture, illegal wiretapping, etc. to actually obtain redress in court.

It is politically inconvenient. The establishment majority has obviously made a calculation that picking that fight with the strong minority is not in the majority's interest.
2.10.2009 2:01pm
RPT (mail):
"Holsinger:

Pre-9/11 methods produced 9/11 results, and will again."

Fortunately, the pre-9/11 administration is out of power.
2.10.2009 2:02pm
Just an Observer:
BTW, I have been looking for a link to the government brief in the Jeppesen Dataplan case, to see in detail what the Obama DOJ has bought into. Does anyone have such a link?
2.10.2009 2:06pm
OrinKerr:
Tom Holsinger,

I think you are trying to be critical of me, although I am not sure of what. Any chance I could ask you to clarify the error you think I have made?
2.10.2009 3:23pm
Thomas_Holsinger:
Professor Kerr,

The error was ignoring material context. You said:
"If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case."

We weren't at war during the Clinton administration. We were attacked after a little more than eight months into the Bush administration.

You did not compare DOJ policies on executive privilege during the first eight months of the Bush adminisration, when we were not at war, to those during the Clinton administration. This like comparing the civil liberties policies of the James Buchanan administration, before the Civil War started, to those of the Lincoln administration when we were at war almost the whole time.

You simply repeated a purported "impression" by unnamed others that Bush administration policies were extreme compared to those of the Clinton administration while ignoring the bloody obvious fact that the murder of several thousand American civilians, at home, by foreign terrorists created an extreme situation meriting new different and arguably extreme measures, at least by comparison to those which failed to protect us on 9/11.

War and peace are not the same, except to those peddling a point of view.

And here the DOJ policies of the Clinton administration did lead directly to 9/11. This raises immediate and pressing questions about the judgment of former Clinton DOJ personnel, back in power as Obama administration DOJ personnel.
2.10.2009 3:52pm
OrinKerr:
Tom Holsinger,

I don't understand your criticism. As far as I know, reporting a fact does not imply agreement or disagreement with the fact.

I should add that I find the idea that we weren't at war before 9/11 somewhat questionable: Al Qaeda had declared war on us and had attacked us several times, and we had attacked them back. But you may mean war in some other technical sense, and I don't really want to debate the meaning of war with you; the broader point is just that you shouldn't confuse the message with the messenger.
2.10.2009 4:07pm
NTB24601:
Just an Observer:
I am not optimistic about 60 senators doing anything to empower those claiming to be aggrieved by rendition, torture, illegal wiretapping, etc. to actually obtain redress in court.

I've got a fair amount of confidence in Senator Leahy and even more confidence in Senator Feingold. I'll be disappointed if they don't push this issue. If they can get all the Democrats on board, and Al Franken is seated, then Senator Specter's vote alone is enough for cloture, even if no other Republicans support the bill. (I would hope for more Republican support than just Senator Specter though; there really is no good reason for this to be a partisan issue.)

I am cyncial too about "looking forward, not back." Nonetheless, a promise to correct the problems moving forward, by doing things like enacting this legislation, is implicit in that phrase.

(Completely off topic: When did it become generally accepted that bills need 60 votes to pass the Senate? I always thought that the minority party was expected to show discretion in when to filibuster, consistent with the collegiality of the Senate.)
2.10.2009 4:08pm
Crust (mail):
NTB24601:
When did it become generally accepted that bills need 60 votes to pass the Senate? I always thought that the minority party was expected to show discretion in when to filibuster, consistent with the collegiality of the Senate.
When the Democrats took the majority.

When the Republicans are in the majority, insisting on 60 votes is an obstructionist tactic standing in the way of an "up or down vote". When the Democrats are in the majority, it's just a routine fact of life in the Senate that it takes 60 votes to pass a bill. Or at least that's how our media choose to report it.
2.10.2009 4:17pm
NTB24601:
Senator Feingold, at least, is still pushing for the legislation:

From Greg Sargent:
But that's unlikely to satisfy Feingold, who reiterated in his statement to me that he's pushing for new legislation to "give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct."
2.10.2009 4:40pm
NTB24601:
Crust:
When the Democrats are in the majority, it's just a routine fact of life in the Senate that it takes 60 votes to pass a bill. Or at least that's how our media choose to report it.
That made more sense to me when there was a Republican administration in the White House. If President Bush had threatened to veto, then there was no point making an issue about a filibuster; the Democrats would need 67 votes to override anyway. That's no longer the case though.
2.10.2009 4:49pm
Just an Observer:
NTB24601: I've got a fair amount of confidence in Senator Leahy and even more confidence in Senator Feingold. I'll be disappointed if they don't push this issue. If they can get all the Democrats on board, and Al Franken is seated, then Senator Specter's vote alone is enough for cloture, even if no other Republicans support the bill. (I would hope for more Republican support than just Senator Specter though; there really is no good reason for this to be a partisan issue.)

I agree that it should not be a party-line issue, but since the immediate target of any investigation is likely to be actions committed during the Bush administration, I expect the GOP unity to hold. However, without a GOP White House to bully him, Specter may well stick with his cosponsors. As for the Democrats in Congress, remember that in the years up through 2008 they showed little courage whenever the other side waved the bloody shirt of the "war on terror." Yes, Feingold will press. Recall that his party made him a pariah in 2006 over his proposal to censure Bush.

Of course, since there is a Democratic administration in power, and the statute might be directed Obama's way later, the position his DOJ takes will be significant. (Do not entirely discount the ironies of Orin's Postulate.) In the short run, with Bush actions the presumed target, Obama seems to perceive that to minimize dissipation of his political capital, it is better not to pick a fight with Cornyn, Bond, etc. by facilitating investigation or adjudication in any forum. Witness the President's brush-off last night of Leahy's "truth commission" proposal.

But perhaps I'll be pleasantly surprised for a change.
2.10.2009 5:27pm
Vermando (mail) (www):
I agree with the Professor's analysis of what the administration is doing, and I can't figure out what should be done about it.

I was initially inclined to agree with Just an Observer that statutory reform is needed, but I do not see how we could devise guidelines that would be specific enough to be anything but broad standards still requiring a case-by-case approach. Such standards could, with oversight, prevent another Bush-like DoJ from making the sorts of blanket claims that they did, and and that would be positive. However, beyond that, I don't see any way around a case-by-case analysis of the facts and evidence in each case and a decision by an administration official about the importance of keeping it secret.

Thoughts?

I'd most like to hear from this guy:

Readery:

I don't see the difference between this case and partial birth abortion.
2.10.2009 5:32pm
Thomas_Holsinger:
Professor Kerr,

You have a point, but bear in mind that it is also possible for messengers to tacitly express approval of the messages they bear.
2.10.2009 6:07pm
Thomas_Holsinger:
Vermando,

The enemy has a vote, i.e., when the enemy is allowed to litigate against the government and does in every possible instance as a matter of policy (i.e., waging war), the government should be allowed to have a blanket policy of always claiming Executive privilege.

If you want the judicial system to be one the battlefields in this war, and complain only about one of the two sides treating it as such, you have tacitly chosen to take the position of the other side.

This can be avoided by being more even-handed, i.e., occasionally asking why the enemy is allowed to litigate at all. This requires recognition, among other things, that there is a war going on and that we have real enemies fighting us. If you can't bring yourself to do that, don't complain about the results.
2.10.2009 6:16pm
OrinKerr:
Thomas Holsinger,

True, but bear in mind that it is much more likely that an Internet commenter will wrongly tag a blogger for taking a position he didn't take, and then, in the face of correction by the blogger, stubbornly pretend he never made an error rather than simply admit error and apologize for it.
2.10.2009 8:41pm
PC:
The enemy has a vote, i.e., when the enemy is allowed to litigate against the government and does in every possible instance as a matter of policy (i.e., waging war), the government should be allowed to have a blanket policy of always claiming Executive privilege.

So Arar, el-Masri and this Mohamed guy are all enemies now? I agree that we should be able to stop terrorists from litigating us to in the battlefield -- whatever that means -- but, I don't see how that addresses the crimes committed against the aforementioned aggrieved parties.

If you think genital slicing and forced sodomy is okay, just say so. Cracking eggs, collateral damage, etc. "It's okay if we torture because our intentions are good and we should not be held accountable when we are wrong."
2.10.2009 8:44pm
Thomas_Holsinger:
Professor Kerr,

It depends on whether I think I was wrong.
"… This is Kaigi Yabu, Lord Izu, Suruga and Totomi. Neh?" He looked directly at Toronaga. "What am I accused of, Sire? Helping ninja? Ridiculous! What have servants' fantasies to do with me? They're liars! Or this fellow -- who implies something that can't be proved and I can't defend?"

"There's no proof, Yabu-sama," Toronaga said. "I agree completely. There's no proof at all."

"Yabu-sama, did you do those things?" Hiro-matsu asked.

"Of course not!"

Toronaga said, "But I think you did, so all your lands are forfeit. Please slit your belly today. Before noon."
2.10.2009 10:19pm
OrinKerr:
Tom Holsinger,

If you would like to comment here, I recommend commenting in a bit more good faith than you're currently bringing to the table. Just a recommendation, assuming you would like to continue commenting here.
2.10.2009 11:17pm
Richard Aubrey (mail):
Orin.
Is the characterization of Holsinger's position "genital slicing...is okay" and so forth in good faith?
2.11.2009 7:38am
jukeboxgrad (mail):
ok:

stubbornly pretend he never made an error rather than simply admit error and apologize for it.


Aside from the fact that holsinger regularly promotes misinformation and then refuses to take responsibility for doing so (example, example), I can't imagine why anyone would imply that holsinger is someone who would "stubbornly pretend he never made an error rather than simply admit error and apologize for it."

=====================
aubrey:

good faith


While we're spinning greatest hits, I would point out that you're not necessarily in the strongest position to make complaints about "good faith" (example, example, example, example).
2.11.2009 8:47am

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.