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Living Without Lederman:
Apropos the developments mentioned below in the Ninth Circuit state secrets litigation, commenter Anderson asks a good question: How are we supposed to follow developments in detention and torture law without Marty Lederman? His decision to take a vacation from the rigors of academia to enjoy a cushy government job left a serious hole in the blawgosphere on these issues.
first history:
According to new RNC head Michael Steele government jobs don't involve real work.
2.10.2009 1:28am
OrinKerr:
first history,

Based on my experience, some do, some don't.
2.10.2009 1:30am
Vermando (mail) (www):
Funny you write this because I was thinking the same thing when I read here that the decision had come down. I know where I can go to hear accusations that this shows Obama's and the Left's hypocrisy, but I don't have a place anymore for the other perspective. In this case, I really do miss it, because I'd love some insight as to whether, as some have suggested, the administration just continued administration policy while the new AG reviews the state secrets decisions, or if they really will follow the same policy as the past administration.

I don't know! And so I miss him too.
2.10.2009 1:36am
C. Gittings (mail) (www):
Working in OLC after the last eight years is going to be the legal equivalent of cleaning up a superfund toxic waste site.
2.10.2009 1:48am
subpatre (mail):
Working in OLC after the last eight years is going to be the legal equivalent of cleaning covering up or ignoring a superfund toxic waste site. [There, fixed it for you.]

Obama as TheOne®. It's not ignorance; the facts are thrust directly into their faces. It's not stupidity (at least in the common use of the word) as most are measurably intelligent. What is a normal person to conclude —watching reactions like Gittings'— except that people are overlooking being abused because its 'in the name of love'?
2.10.2009 7:30am
krs:

[There, fixed it for you.]

Few regular features of the comments are more annoying than this.
2.10.2009 7:50am
Teh Anonymous:
This is rather off-topic, but then so is the comment I am responding to (subpatre's) - am I the *only* person out there who voted for Obama but didn't expect that it would be anything other than business as usual once the dude got into office? I can't be, but sometimes I think I must be. Admittedly I mostly only think this when I am reading VC comments that assure me that there are zillions of people who think the dude is the messiah.
2.10.2009 8:05am
taney71:
Get Louis Fisher to blog. He probably knows more than most on this issue.
2.10.2009 8:18am
Bart (mail):
Perhaps the NY Times will disclose Marty's classified OLC memos. I would be fascinated to see how his views on torture and executive power "evolve" now that he is working for The One.
2.10.2009 8:56am
jukeboxgrad (mail):
bart:

Perhaps the NY Times will disclose Marty's classified OLC memos.


I hope the NYT does exactly that, if "Marty's classified OLC memos" are as disreputable as Bush's. Do you hope the same thing? If so, then I guess that means you've chosen to "evolve" your views about the role of the press in keeping the government honest.
2.10.2009 9:13am
Germanicus:
When conservatives saw the enthusiasm about Obama during the campaign, they tended to interpret it as a cult of personality. There is some degree of truth to that, but I would argue the largest portion of the excitement among liberals was inspired by Bush leaving office, not Obama taking it.
2.10.2009 9:38am
subpatre (mail):
KRS: annoyed enough by snark to snark how annoying it is. Pot ... kettle, etc.


Teh Anonymous "am I the *only* person out there who voted for Obama but didn't expect that it would be anything other than business as usual once the dude got into office?"

No, there were two others, but now there are thousands *claiming* that; exactly like you. The claim means total ignorance of URL's, internet thingys that change the webpage; in this particular case to Gittings website so people can read why Gittings supported Obama. (Seeing as how this was exactly what Obama said he was going to do; contrary to what you now say you voted for.)

There are millions of documents and people's opinions supporting the notion that "change" was a large part of Obama's message, and "change" is not "more of the same". Heck, even this Judgey person is all surprised by this changey stuff . . . or the lack thereof.

Doubling the debt in one year isn't "business as usual", so Obama is clearly attempting change. It's just that the change Obama is attempting is different than the change he obtained support for.


Orin Kerr - It's called cooptation or capture. If the Slate team --Johnsen, Barron and Lederman-- quit tomorrow, they would be prohibited from blogging as they did in the past. They have been flipped, turned, or bought; but mostly they have been fixed. Obama's oganizational team is —perhaps not 'good'— but 'thorough' or 'efficient'. 'Slick' might be appropriate, but has past presidential connotations.
2.10.2009 9:50am
Anderson (mail):
but I would argue the largest portion of the excitement among liberals was inspired by Bush leaving office, not Obama taking it

Well, *yeah*.
2.10.2009 9:53am
krs:

KRS: annoyed enough by snark to snark how annoying it is. Pot ... kettle, etc.awesome


There, fixed it for you.
2.10.2009 9:59am
C. Gittings (mail) (www):
Anonymous,

I expected that we were electing an intelligent man who was capable of actually thinking about issues. I had no illusions that everything would or could change overnight, and it was clear he has a lot to learn where military matters are concerned (keeping Gates was a bad mistake).

After eight years of subversion, corruption, and crimes by the Bush gang, "business as usual" would be a distinct improvement in any case, but repairing all the damage they did is going to take time.
2.10.2009 10:03am
Just an Observer:
I, too, miss Marty Ledermans's contributions. I have searched in vain at Balkinization for blogging he has done in the past on the state-secrets privilege specifically. If anyone finds any posts there or elsewhere, it would be interesting to see the links.
2.10.2009 10:06am
Oren:

Perhaps the NY Times will disclose Marty's classified OLC memos. I would be fascinated to see how his views on torture and executive power "evolve" now that he is working for The One.

Why not, exactly?
2.10.2009 10:07am
Thales (mail) (www):
Maybe John Yoo can blog about the subject to fill the Lederman vacuum. I'm sure we will all be dazzled by his legal analysis, which carefully considers all possible sources of law and engages compelling alternative arguments. It would also have a nice parity to it, don't you think?
2.10.2009 10:20am
MarkField (mail):

I have searched in vain at Balkinization for blogging he has done in the past on the state-secrets privilege specifically. If anyone finds any posts there or elsewhere, it would be interesting to see the links.


At one time Balkinization collected all the postings on these topics here. It hasn't been updated in a while, though Prof. Balkin recently said it would be.

I didn't check to see if this list contained specific posts about state secrets; it just seems to be the general place to look.
2.10.2009 10:33am
Just an Observer:
MarkField,

According to my browsing, searching and recollection, it was Jack Balkin who did the posting about state secrets. Those posts fit into the theme he developed lamenting a "surveillance state."
2.10.2009 10:49am
OrinKerr:
Subpatre,

If you would like to comment here, keep it civil. Consider yourself warned.
2.10.2009 10:58am
Anderson (mail):
keep it civil

Or comprehensible, even.

Though I did like the "Marca Registrada" symbol.
2.10.2009 11:00am
C. Gittings (mail) (www):
Subpatre,

I voted for Obama because I thought he was the best candidate, period. Voting for McCain was unthinkable: the Republican Party is a criminal organization and a greater threat to the safety of the United States than Al Qaeda is.
2.10.2009 11:00am
Just an Observer:
Glen Greenwald dug up this quote from Marty Lederman blogging at Firedoglake:


The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program. The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.


Which, if you parse it generously, could be read to be consistent with what DOJ did yesterday in court and at main Justice. It remains to be seen whether the DOJ review will follow the guideline he articulated.
2.10.2009 11:09am
jukeboxgrad (mail):
subpatre:

Doubling the debt in one year isn't "business as usual", so Obama is clearly attempting change.


I think you are alluding to the following headline:

U.S. Taxpayers Risk $9.7 Trillion on Bailout Programs


You seem to be implying that Obama is responsible for that "$9.7 Trillion" (or that Obama is "attempting" to get that amount). But he's not. Most of the commitments described in that article (like "$8 trillion … in lending programs and guarantees, almost all under the Fed and FDIC") were in place before Obama showed up.

You are also implying that the sums reviewed by Bloomberg all represent an increase in the national debt. But they don't. For example, an FDIC guarantee doesn't increase the national debt until FDIC writes a check to reimburse the depositor for the amount that was lost when the bank failed.

And as far as the actual national debt is concerned, Bush did indeed nearly double it, in his term. Under GWB, the national debt grew from $5.7 trillion to $10.6 trillion. An increase of 86%. Mission accomplished! What better way to destroy the government than to bury it in a mountain of debt. That's even better than drowning it in a bathtub.

Aside from being incivil and incomprehensible, you're also promoting misinformation. But for you perhaps all that is "business as usual."
2.10.2009 11:32am
Snaphappy:
Do people seriously think that Lederman would change his opinion just because he now has a job in the administration? Despite what happened in the last eight years, OLC isn't supposed to be a rubber stamp for the administration. Even so, one person in an organization is not the organization. If OLC's opinion on any given matter is different from what Lederman has said in the past, the starting assumption should be that the office considered and evaluated competing views and came to a reasoned conclusion. It's only if OLC memos reveal Yoo-like contortions of logic and precedent that it would be time to start asking whether someone is just a partisan hack.
2.10.2009 11:38am
Just an Observer:
Another quote from Lederman (again researched by Greenwald) is this one in the context of the debate over telecom immunity in FISA amandments:

And therefore, if Congress does grant the telecoms immunity, it must also, at the very least, take steps to ensure that the lawsuits against the government can proceed. Senator Rockefeller therefore should insist that his bill incorporate Senator Schumer's bill that would establish an express statutory cause of action to challenge the NSA program, and should also insist on a statutory amendment limiting the scope of any "state secrets" privilege to allow courts to adjudicate the legality of the NSA program without publicly revealing technological capabilities that must remain public.


Lederman thus recognized that legislation could check the executive's use of this privilege. There seems to be such a general need today, regardless of who the president is.

What is interesting here is that the particular legislative remedy Lederman advocated was based on his own opinion that the greater good of investigating FISA abuses outweighed the justification for the privilege in that case. But in general, absent legislation, the prudential precedents pretty clearly rule out the courts undertaking such a balancing test on their own.
2.10.2009 11:40am
Oren:

I voted for Obama because I thought he was the best candidate, period. Voting for McCain was unthinkable: the Republican Party is a criminal organization and a greater threat to the safety of the United States than Al Qaeda is.

It's so nice to see people rationally discussing genuine policy differences.
2.10.2009 12:08pm
Sarcastro (www):
Obama clearly negotiates with terrorists! Someone call the media!
2.10.2009 12:11pm
Kent Scheidegger (mail) (www):

How are we supposed to follow developments in detention and torture law without Marty Lederman?


SCOTUSblog. Lyle Denniston writes so much about detainee cases there -- usually not Supreme Court cases -- that sometimes I think they should rename it Detainee Blog.
2.10.2009 1:25pm
Kirk:
OrenKerr,

So when are you going to chastise C. Gittings for his lack of civility? Or is calling half of us adherents of a criminal enterprise, and a bigger danger to the nation than AlQ perfectly fine as long as one uses polite words to do so?
2.10.2009 1:48pm
frankcross (mail):
Give him a break, Kirk, no way the conspirators can address all the wackos who post here. Not sure why he picked subpatre (whose comments seem more incoherent than uncivil, but maybe he understood them better than I did).

In the past, a conspirator has chastised a liberal commenter, and liberals have risen to whine about the double standard. Nice to see turnabout works the same.

I'm in favor of EV, Orin, etc. critiquing those commenters that they can. They might do more, but that would fill these threads with nothing but chastisements.
2.10.2009 2:22pm
Bart (mail):
jukeboxgrad:

bart: Perhaps the NY Times will disclose Marty's classified OLC memos.

I hope the NYT does exactly that, if "Marty's classified OLC memos" are as disreputable as Bush's. Do you hope the same thing? If so, then I guess that means you've chosen to "evolve" your views about the role of the press in keeping the government honest.

No. Apart from a personal interest in what I suspect will be a substantial change in the weak president opinions of Marty and other OLC appointees, I do not condone the NY Times unlawfully disclosing top secret information from the Obama Administration any more than I did disclosure from the Bush Administration.
2.10.2009 4:05pm
C. Gittings (mail) (www):
Frank,

What's uncivil about stating a fact?

The greatest threat to Germany in 1938 was Adolf Hitler and the Nazi party, just as the greatest threat to the Soviet Union was always the Communist Party. The founders of our republic were quite clear about the fact that the greatest danger to any nation was the abuse of power by its own government, and you Republicans were exactly who they were talking about.

The Bush administration murdered more people over the last eight years than Al Qaeda did. They spent eight years systematically subverting our laws. The invasion of Iraq was a crime against peace in exactly the same way the German invasion of Poland was. I understand that you don't get any of that, but I also understand that it's nevertheless true.

I'm equally aware that the reason for this disconnect is that you're operating by a completely different set of standards from my own, and that it's almost impossible to have any sort of objective discussion with you folks on such things because your "reasoning" is almost completely circular and irrational.

That said, I'm always open to an honest discussion -- I just know from long experience that I'm not likely to get one from a Republican / Bush supporter.
2.10.2009 4:10pm
Anderson (mail):
more incoherent than uncivil

Good, it wasn't just me then.
2.10.2009 5:04pm
Anderson (mail):
[Deleted by OK -- keep it relevant, folks]
2.10.2009 5:11pm
MarkField (mail):
[Deleted by OK -- keep it relevant, folks]
2.10.2009 5:48pm
C. Gittings (mail) (www):
[Deleted by Ok. Keep it relevant, folks]
2.10.2009 6:20pm
OrinKerr:
Kirk writes:

OrenKerr,

So when are you going to chastise C. Gittings for his lack of civility? Or is calling half of us adherents of a criminal enterprise, and a bigger danger to the nation than AlQ perfectly fine as long as one uses polite words to do so?
I was in Chicago all day, with only intermittent access, and then on a flight back to DC. I deeply apologize that my travel plans during my sabattical are leading to substandard comment-editing: I have asked Eugene to refund your subscription fee, with interest.

One question, though: Do I actually have to read the thread to to the editing? Sometimes you just don't want to wade into the morass.
2.10.2009 9:42pm
Kirk:
Orin,

I apologize if you took my peevish tone too seriously--as I look at it, my motivation in addressing you was only partly a request for you to act; it was also a way to express some peer pressure against the uncivil comments without directly addressing the (possibly trollish) poster.
2.10.2009 11:12pm
OrinKerr:
Kirk,

Thanks for the clarification. Yes, tone is hard to sense online.
2.11.2009 1:57am
C. Gittings (mail) (www):
Well Kirk, I don't know how I got "Frank" but I meant you, and I repeat: there isn't anything uncivil about stating facts.

There is however something rather distinctly uncivil about insinuating that someone is a troll for stating their honest opinion as to the facts. Equally, it's a little uncivil not to address someone directly when you insult and slander them.
2.11.2009 2:22am
Kirk:
Gittings,

There is, however, something deeply disingenuous about conflating "fact" and "opinion".
2.11.2009 2:29am
jukeboxgrad (mail):
bart:

I do not condone the NY Times unlawfully disclosing top secret information from the Obama Administration any more than I did disclosure from the Bush Administration.


Thanks for the response, and I appreciate the expression of consistency.

I realize you think the NYT disclosure was wrong, but what law did they break?

If the answer to my question can be found elsewhere, it would be great to just have the link. I realize my question is off-topic.
2.11.2009 9:57am
C. Gittings (mail) (www):
Kirk,

Oh really. And just exactly how am I conflating the two?

I have opinions about what the facts are and what they imply -- and so do you. It appears that you disagree with my view of the facts, mostly on the basis of blustering say-so and false accusations about me.

Are you trying to suggest that you are always right and I am always wrong?

I'm not conflating anything: you just don't agree with me, and since all I'm doing is telling the truth, ad hominem hot air is all you've got.

But don't mind me Kirk, if you think you can actually refute anything I've said, let's hear it.
2.11.2009 10:00am
OrinKerr:
Kirk, C. Gittings,

If either of you continue to act like such 5 year olds, I will ban you. C'mon, keep it civil and relevant.
2.11.2009 2:18pm
Kirk:
C. Gittings,

That you apparently think that your statement "the Republican Party is a criminal organization and a greater threat to the safety of the United States than Al Qaeda is" consists of facts rather than opinion says it all.
2.11.2009 2:34pm
Kirk:
Sorry, Orin, I'll just avoid your posts from now on.
2.11.2009 2:39pm

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