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Luban: "You Cover It Up, You Own It ":

David Luban has an interesting commentary on the Obama Administration's decision to continue the assertion of state secrets privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:

The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.

This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. . . .

. . . Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.

Anderson (mail):
Well, glad to see Balkin's blog waking up.

Luban doesn't address the "embarrassment to other governments" argument however. And since he's disabled comments, I won't be bringing that issue to his attention.
2.10.2009 11:57am
RPT (mail):
It would be appropriate if other posters here joined in the criticism of this privilege assertion.
2.10.2009 12:03pm
The Cabbage (mail):
This is the least surprising thing to happen in some time.
2.10.2009 12:08pm
Oren:

This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

This is disingenuous. It's one thing for something to be well known and documented and quite another for the US to acknowledge those facts as true in a courtroom.
2.10.2009 12:09pm
Nathan_M (mail):

It's one thing for something to be well known and documented and quite another for the US to acknowledge those facts as true in a courtroom.

What exactly is the difference, aside from embarrassment? Are you suggesting that national security is harmed by the government admitting facts America's adversaries already know?
2.10.2009 12:17pm
Tony Tutins (mail):
I think, three weeks into the new administration, that this is merely a case of "Don't tear down the fence until you know why it was built in the first place."

Further, being able to sue government contractors on a "knew or should have known" basis goes against public policy, because few or no suppliers will want to contract with the government. This will drive up costs, or make many essential tasks impossible.
2.10.2009 12:19pm
MW:
The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security.

Is this right? I thought the theory was that disclosing secret government operations would compromise an ongoing program, or international relations, or some other national interest. The theory surely doesn't assume there was misconduct.

Remedying government misconduct is certainly an important interest. But that doesn't mean there are no other interests involved. Part of the problem here seems to be that the executive arrogates to itself the balancing of these interests. There ought to be some way around that.
2.10.2009 12:26pm
Crust (mail):
Anderson:
Luban doesn't address the "embarrassment to other governments" argument however.
Do you think that argument can justify dismissing the suit rather than merely limiting evidence? (I'm think of e.g. redacting documents to remove references to specific foreign countries or information that might allow inferences about specific countries involved.)
2.10.2009 12:29pm
SailorDave (www):
I don't think this is that easy. I have long been convinced by an older anti-Bush theory that Guantanamo, torture, and other US misbehavior has harmed national security both by alienating European allies and by recruiting more terrorists. How can anyone simultaneously believe that the Bush misdeeds encouraged more terrorism but that disclosing/confirming/republicizing evidence of additional misdeeds won't do any harm?

I'm not saying I know the answer, just that there is a real question here. And there is a strong argument that morally and legally wrong behavior should be disclosed even if the disclosure does harm.
2.10.2009 12:32pm
Al Maviva:
Where are the calls are to try Jack Balkin as a war criminal for being in charge of the legal policy shop that is covering up torture, in furtherance of the Yoo conspiracy?
2.10.2009 12:35pm
Crust (mail):
Tony Tutins:
[B]eing able to sue government contractors on a "knew or should have known" basis goes against public policy, because few or no suppliers will want to contract with the government.
I'm guessing that, say, paper clip manufacturers are not going to be dissuaded from selling paper clips to the government because of prosecutions of corporations for participation in extraordinary rendition, warrantless surveillance, etc. If on the other hand, in the future contractors are more reticent to cooperate with illegal or arguably illegal programs despite government dollars dangled in front of their faces, that sounds like a good consequence to me.
2.10.2009 12:41pm
jukeboxgrad (mail):
rpt:

It would be appropriate if other posters here joined in the criticism of this privilege assertion.


I hereby join in the criticism of this privilege assertion.

===============
oren:

It's one thing for something to be well known and documented and quite another for the US to acknowledge those facts as true in a courtroom.


There is support for your claim in the SF-312 briefing booklet:

Information remains classified until it has been officially declassified. Its disclosure in a public source does not declassify the information.


This concept was relevant in the Plame situation. Just because a reporter (allegedly) had the information already did not make it OK for a government employee to discuss the information.

However, I also agree with nathan's point. The information might still be (technically) classified, but there's reason to suspect that there's no good reason to keep it classified. That is, adding credence to the information via official government confirmation is perhaps a matter only of embarrassment, and not national security.

===============
maviva:

Where are the calls are to try Jack Balkin as a war criminal for being in charge of the legal policy shop that is covering up torture, in furtherance of the Yoo conspiracy?


If and when it becomes clear that Balkin is "covering up torture," you will hear those "calls." If you think liberals are reluctant to criticize Obama on these issues, that means you're just not paying attention.
2.10.2009 12:44pm
Tony Tutins (mail):

paper clip manufacturers are not going to be dissuaded from selling paper clips to the government

I suppose you've never heard of straightened paper clips being shoved under a suspect's fingernails.

Similarly, Jeppesen Dataplan is being sued for making travel arrangements. In both cases, only the government's use of the product/service provided makes it evil. Can Mohamed v. Office Depot be that far behind?
2.10.2009 12:49pm
PLR:
Similarly, Jeppesen Dataplan is being sued for making travel arrangements.

Or to be precise much more precise, for transporting el-Masri from Serbia or Macedonia to Afghanistan at the behest of the CIA, delivering him into the custody of CIA officials who tortured him, then bringing him to Albania and dumping him roadside, again at the behest of the CIA.

Oopsie. Hope I didn't just spill any state secrets there, I'd hate for the Ninth Circuit panel to think something nefarious was going on.
2.10.2009 12:56pm
Oren:


What exactly is the difference, aside from embarrassment? Are you suggesting that national security is harmed by the government admitting facts America's adversaries already know?

Knowing something and having it officially confirmed are not the same.
2.10.2009 1:04pm
Crust (mail):
Tony Tutins:
I suppose you've never heard of straightened paper clips being shoved under a suspect's fingernails.

Similarly, Jeppesen Dataplan is being sued for making travel arrangements. In both cases, only the government's use of the product/service provided makes it evil. Can Mohamed v. Office Depot be that far behind?
Do we really have to go over this again? If we accept your implicit hypothetical of the CIA torturing with paper clips, Office Depot is analogous to McVeigh's travel agent from the last time round. Office Depot would surely have no reason to think that the government was purchasing paper clips for illegal purposes.
2.10.2009 1:07pm
PLR:
Knowing something and having it officially confirmed are not the same.
What constitutes official confirmation? Is a $450,000 settlement payment by the government of Sweden for its complicity in a rendition to Egypt good enough?
2.10.2009 1:10pm
Tony Tutins (mail):

for transporting el-Masri from Serbia or Macedonia to Afghanistan at the behest of the CIA, delivering him into the custody of CIA officials who tortured him, then bringing him to Albania and dumping him roadside, again at the behest of the CIA.

Sorry, Jeppesen did not transport, deliver, or bring el-Masri anywhere, at any time, according to the ACLU's pleadings:

The ACLU's pleadings say: ''Flight records from July 2002 confirm that the Gulfstream V jet aircraft owned and operated by Premier Executive Transportation Services ('PETS') and Aero Contractors Ltd ('ACL') departed Islamabad, Pakistan on July 21, 2002 at 5.35pm and arrived in Rabat, Morocco, the next morning, July 22, 2002, at 3.42am before departing Rabat an hour later at 4.44am for Shannon, Ireland, arriving there at 7.21am."

According to the ACLU, Jeppesen provided the flight plan, got them permissions to take off and land, and made sure that a vehicle would meet the airplane:


Jeppesen International Trip Planning was said to have provided flight planning services, over flight and landing permits from foreign governments, customs clearance and arrangements for ground transport, and security services for aircraft and crew. ''Jeppesen's services have been crucial to the functioning of the government's extraordinary rendition programme," said ACLU attorney Steven Watt.

Add to the complicity of the AAA and the Shell station, the complicity of a doorman calling for a cab for Tim McVeigh.
2.10.2009 1:15pm
JoeSixpack (mail):
We Are The Change We Have Been Waiting For.
2.10.2009 1:17pm
MarkField (mail):

Knowing something and having it officially confirmed are not the same.


I don't think anyone is demanding that the government admit the claims. What they're asking is for the right to prove facts in court against the government's (good faith) defense. Note that the government still might claim the right to hold back certain documents, or portions thereof, from discovery; even Greenwald agrees with that. It's the expansive use of the privilege claim to shut off litigation ab initio which is absurd.
2.10.2009 1:18pm
John Burgess (mail) (www):
I'll tell you, whenever an article or essay talks about "Bushies" or "Obamanites", I'm going to dismiss it as non-serious from the get-go. Just sayin'...

That said, as Oren says, 'knowing something' =/ 'officially confirmed'. A settlement may strongly suggest something is/was going on, but absent an admission of guilt, it's not guilt. Presume, conclude, infer all you like, it's not confirmation.
2.10.2009 1:27pm
Tony Tutins (mail):

What they're asking is for the right to prove facts in court against the government's (good faith) defense.

Let them sue the government, then, and not the government's supplier.
2.10.2009 1:30pm
mooglar (mail) (www):
I, too, am critical of the privilege assertion here.

Unfortunately, however, as noted above, the rules dealing with classified ("national security") information have been screwy at least since I first worked on a classified program, in 1993. Stuff that was more widely known and confirmed than this was still "classified" and I still couldn't talk about it, no matter how ridiculous it may have been.

In one case, something supposedly "classified" was a cover story in Air Force Magazine and yet I could still have gone to jail for talking about it.

So, the idea that something is still a "national security secret" even when everyone knows about it is well-established. It's stupid and should be changed, but it isn't new policy dreamt up by the Obama DOJ. It's old, bad policy that the Obama DOJ shouldn't be using.
2.10.2009 1:34pm
NTB24601:
Tony Tutins:

Similarly, Jeppesen Dataplan is being sued for making travel arrangements. In both cases, only the government's use of the product/service provided makes it evil.

You are arguing that Jeppesen Dataplan should win the case on the merits. I don't know enough about the case to debate that, but its entirely beside the point being discussed here. The problem is that the Court never reached the merits because it dismissed the case based on the state secrets privilege.
2.10.2009 1:34pm
jukeboxgrad's favorite YouTube video:
Lots of displeasure directed towards The One from the hate-Bush left, but no calls for his impeachment or trial as a war criminal.

Power promotes pragmatism, as they say.
2.10.2009 1:34pm
Anderson (mail):
Do you think that argument can justify dismissing the suit rather than merely limiting evidence?

I have no idea as regards this case -- it may be that the limitations on evidence would be such as to gut the case. Really, I don't know much about it -- all I'm doing is tossing out a potential reason why this case might prove to merit application of the state-secrets doctrine. I am happy to learn more from commenters who know more.
2.10.2009 1:37pm
Anderson (mail):
Lots of displeasure directed towards The One from the hate-Bush left, but no calls for his impeachment or trial as a war criminal.

Let's just pause a moment to examine the stupidity here.

The issue we're discussing is whether Obama's administration should "cover up" the misdeeds of the BUSH administration.

Number of persons known or suspected to have been tortured under the Obama administration: 0.

Number of persons known or suspected to have been rendered to other countries for purposes of torture under the Obama administration: 0.

I would rather be a member of the hate-Bush left than a member of the dumb-as-Bush right, that's for damn sure.
2.10.2009 1:44pm
Ben Franklin (mail):
About the only upside to having a president who is a combination of Chauncey Gardiner and Hugo Chavez is watching him squirm as he comes face to face with reality.

Anyone who thought that these issues such as rendition, Guantanimo etc... weren't just being ginned up for political reasons is naive in the extreme. You can't have an entity or group of entities waging war against your country and treat it as a matter for law enforcement. Hillary (as the wife of an avid practitioner of rendition) understood that most of this was for show, but I am not sure that Obama was similarly clued in.

I fully expect to see more walk backs such as we have seen thus far as time goes on. Obama may be slow and not particularly worldly, but I think even he, as he debates how to Mirandize and gather evidence on the battlefield, will come to realize what a farce he has participated in.

I guess the only other thing to add is just because one asserts that all of the facts are known about the case in question doesn't make it so. Two separate administrations have decided to take the same position. It is not beyond belief that they might have had a very good reason for doing so.
2.10.2009 1:46pm
PC:
Can Mohamed v. Office Depot be that far behind?

That's after the Mohamed v. Acme's Genital Slicing Knife Co. lawsuit.
2.10.2009 2:01pm
XON:
The law is a function of truth-dictating. In the adversarial system, one side says, "Without perfect knowledge, we should proceed as if A had done X." The other side says, "Without perfect knowledge, we should act as if A had not done X." The whole genius and virtue of any legal system is that it provides a framework of rules to trammel the normal human urge to power that makes those with power act solely on their belief that X is or is not; often inaccurately.

The First Amendment was the second act of this country to say that whatever the Government (syn: King, Prime Minister, Governor, Potentate, Emperor, et al.) says or wants cannot be the last word on the topic. I am convinced the drafters arrived at this concept as a result of painful history.

Fast forward to Reynolds. We had had enough of those pesky 'little people' challenging what we were doing with their money/loyalty/taxes/security. So, we decided to chuck that whole concept and create a place in our society for our betters to dictate what reality is without burdening ourselves with that whole responsibility for figuring things out for ourselves. Of course we did it with requisite process, which actually makes it worse.

Jeppesen, as a corporation, was aware of their role in these matters. There is documentation of it, it just will never see the light of day (absent an extremely competent dismantling of the National Clandestine Service. . . which might not be a great thing on balance; who knows.) The fact that they had their cover blown by independent observers should, I believe, function much like privilege: If someone else overhears you conferring with your attorney, the privilege isn't worth anything. If you're in bed with the government, you ought to act prudently to conceal that fact. If that's not possible, it's the duty of the corporate officers to evaluate and decide on that risk, and accept consequences of it.

State secrets are a dangerous thing to a democracy; which is probably why most Americans seem to be in favor of them.
2.10.2009 2:09pm
PLR:
Sorry, Jeppesen did not transport, deliver, or bring el-Masri anywhere, at any time, according to the ACLU's pleadings...

I stand corrected, thanks.
2.10.2009 2:12pm
Connecticut Lawyer (mail):
This is surely wrong: "The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security."

I'm no expert on the law here, but I thought that the theory was that disclosing the involvement of another government would discourage other governments (and not merely the one involved in the instant case) from cooperating with the US in future intelligence matters.
2.10.2009 2:12pm
Justin (mail):
"This is disingenuous. It's one thing for something to be well known and documented and quite another for the US to acknowledge those facts as true in a courtroom."

Oren, I assume that far from being disengenuous, this is precisely Luban's point. Luban's point is that the difference between the two - the official acknowledgement of already well-known, not-actually a secret information --is not a legitimate reason to invoke the state secrets privilege.
2.10.2009 2:22pm
Guest101:

I think, three weeks into the new administration, that this is merely a case of "Don't tear down the fence until you know why it was built in the first place."

I hope that proves to be true; time will tell, and it shouldn't take much time for the administration to clear this up if it has any intention of doing so.


Further, being able to sue government contractors on a "knew or should have known" basis goes against public policy, because few or no suppliers will want to contract with the government. This will drive up costs, or make many essential tasks impossible.

As has already been pointed out, this is an argument about the merits of the lawsuit, not about the assertion of the state secrets defense. I tend to agree that it's at least debatable whether third-party contractors should be held liable for facilitating government malfeasance, but let Jeppesen make that argument in a motion to dismiss like any other defendant.
2.10.2009 2:23pm
Hannibal Lector:

State secrets are a dangerous thing to a democracy...

This is an absurdity on the face of it. Most countries with an extended history of liberal, constitutional democracy have also had state secret acts that provide more cover and far stricter penalties than this country's that the Democrat left-wing is/was complaining about. Compare Britain's Official Secrets Act for example or Israeli laws or Swiss law. Let's not even talk about the French.
2.10.2009 2:24pm
PC:
Compare Britain's Official Secrets Act for example or Israeli laws or Swiss law.

Don't Israeli courts handle classified evidence in closed chambers?
2.10.2009 2:28pm
jukeboxgrad's favorite YouTube video:
The issue we're discussing is whether Obama's administration should "cover up" the misdeeds of the BUSH administration.

Okay, then Obama is an accessory after the fact to war crimes. Better?
2.10.2009 2:50pm
Thorley Winston (mail) (www):
I'll tell you, whenever an article or essay talks about "Bushies" or "Obamanites", I'm going to dismiss it as non-serious from the get-go. Just sayin'...



Likewise.
2.10.2009 2:56pm
David Hecht (mail):
mooglar is correct, and the problem goes much further back than 1993 (I joined the government in 1981 and it was an issue then).

Back then, there was a case involving a reporter for Jane's Defence Weekly (I forget his first name, but he was Samuel Eliot Morison's son[!]) who published some pictures of the (then-undisclosed) Soviet carrier tied up alongside. His defense was that the pictures weren't marked with a classification legend: the government's argument was that anyone knowledgeable of the environment (which it was stipulated Morison was) should have known that--if nothing else--there were "Methods and Sources" issues: that is, publishing the photos told the Soviets something they might not have known about our capabilities.

This, by the way, is why the whole "But everyone, especially the enemy, knows this!" defense is completely meretricious: the issue is almost never about WHAT is known, but HOW one came to know it. In the Morison case, presumably it wasn't exactly a secret to the Russians that they had built an aircraft carrier: but it just might have escaped their notice that someone was willing to risk their life taking pictures of it and passing them to the West.
2.10.2009 2:57pm
SGEW (mail):
Hmm. As far as ersatz replacement Balkinization threads go, this isn't so bad. But where's Bart?!
2.10.2009 3:13pm
jukeboxgrad (mail):
video:

Lots of displeasure directed towards The One from the hate-Bush left, but no calls for his impeachment or trial as a war criminal.


If and when Obama's list of crimes gets to be as long as Bush's, then you will hear calls for Obama's "impeachment or trial as a war criminal."

===============
lecter:

Compare Britain's Official Secrets Act for example or Israeli laws or Swiss law.


This is very confusing. I thought that rightys thought that it's very un-American to draw inspiration from foreign law. After all:

Many people believe that appeals to foreign law undermine the rule of law here.


And some serious people have expressed serious concerns about "the propriety of relying on foreign sources of law."

But that was last week. Things might be different this week.
2.10.2009 3:36pm
MarkField (mail):

Let them sue the government, then, and not the government's supplier.


I'm skeptical of this suit on the merits, but they can't sue the government.
2.10.2009 3:39pm
Anderson (mail):
But where's B--t?!

Speaking the name of certain entities conjures them up. I recommend caution.
2.10.2009 3:43pm
Hannibal Lector:
jukeboxgrad: You misunderstood my argument: XON asserted that "State secrets are a dangerous thing to a democracy..." I refuted him with several counterexamples from foreign constitutional democracies. I never suggested that the USA should adopt, e.g., Britain's Official Secrets Act or any other similar legislation.
2.10.2009 3:45pm
Connecticut Lawyer (mail):
Mark Field,

That's precisely the point. Because they can't sue the Government, they brought this suit is a backdoor way to do the same thing. If Government contractors are going to be liable for doing what the Government contracted with them to do, the Government will be forced, eventually, to indemnify all of its contractors against precisely this risk, and the scuzzy lawyers behind this suit will have effectively overruled the large body of law that makes the Government immune from cases like this.

IMHO, the case should be dismissed and sanctions levied against the plaintiff's counsel.
2.10.2009 4:05pm
Sagar:
David Hecht and Connecticut Lawyer

Thank you for your posts. Both of you make a lot of sense.

All of the people asking the contractor to win the case on the merits in a court,

the contractor will also have problems providing all the evidence to prove their innocense (some of it might be classified govt "secrets"), and who would pay for their cost of defending against litigation?
2.10.2009 4:30pm
jukeboxgrad's favorite YouTube video:
If and when Obama's list of crimes gets to be as long as Bush's, then you will hear calls for Obama's "impeachment or trial as a war criminal."

The hate-Bush left was calling for Bush's impeachment long before Bush's list of crimes is as long as you contend it is now. It started at least as early as Abu Ghraib, possibly before. It's not as if the left just recently decided that Bush is a war criminal.

So I'm curious: how many war crimes does Obama get a pass on before you'll call him a war criminal?
2.10.2009 4:42pm
SGEW (mail):

So I'm curious: how many war crimes does Obama get a pass on before you'll call him a war criminal?


I don't think anyone here (never mind the "hate-Bush left," whoever they are) would have ever claimed that an overly broad interpretation of the state secrets doctrine was a "war crime."
2.10.2009 4:51pm
RPT (mail):
"JBG:

rpt:

It would be appropriate if other posters here joined in the criticism of this privilege assertion.

I hereby join in the criticism of this privilege assertion."

Thanks. The difficulty is (almost) entirely with those who now criticize Obama for (apparently) taking the same position as Bush. Let's see what happens when Holder has taken over. Don't underestimate the ability of the current DOJ holdovers to influence the transition decision-making in cases they have been handling for some time.
2.10.2009 5:12pm
ChrisTS (mail):
Anderson: Speaking the name of certain entities conjures them up. I recommend caution.

They Who Must Not Be Named.
2.10.2009 5:42pm
MarkField (mail):

That's precisely the point. Because they can't sue the Government, they brought this suit is a backdoor way to do the same thing. If Government contractors are going to be liable for doing what the Government contracted with them to do, the Government will be forced, eventually, to indemnify all of its contractors against precisely this risk, and the scuzzy lawyers behind this suit will have effectively overruled the large body of law that makes the Government immune from cases like this.

IMHO, the case should be dismissed and sanctions levied against the plaintiff's counsel.


But it's not the point. The post deals with the Obama Administration's assertion of the state secrets privilege, not with the merits of the underlying suit. It's only the former we're discussing. Thus, suggesting that the plaintiffs sue the government instead doesn't meet the point.


Speaking the name of certain entities conjures them up. I recommend caution.


Glendower: I can call spirits from the vasty deep.

Hotspur: Why, so can I, or so can any man; But will they come when you do call them?
2.10.2009 5:43pm
BTB:
Lecter:

"I refuted him with several counterexamples from foreign constitutional democracies."

You haven't actually refuted anything -- state secrets very well can be dangerous to a democracy. That doesn't mean that there should not be allowances, merely that we should be suspicious of them.

youtube video:

"So I'm curious: how many war crimes does Obama get a pass on before you'll call him a war criminal?"

Starting a war based on false information with little to no plan for rebuilding may be a start.
2.10.2009 5:55pm
jukeboxgrad's favorite YouTube video:
I don't think anyone here (never mind the "hate-Bush left," whoever they are) would have ever claimed that an overly broad interpretation of the state secrets doctrine was a "war crime."

Of course not. No one on the left would ever argue that writing a legal memorandum constituted a war crime.
2.10.2009 6:17pm
Oren:

What constitutes official confirmation? Is a $450,000 settlement payment by the government of Sweden for its complicity in a rendition to Egypt good enough?

What does this have to do with official confirmation by the US gov't?


Do you think that argument can justify dismissing the suit rather than merely limiting evidence?

If there are classified documents that would contribute to the defense, it's hardly fair to allow the suit to proceed.

For instance, the defense would do well to demonstrate to the jury the internal workings of the rendition system in order to prove that it was far enough from the actual ill-acts. Alternatively, they might want classified documents showing that the program was approved at the highest levels by gov't lawyers (which, although not an absolute defense against liability, is still of substantial probative value).
2.10.2009 6:51pm
Oren:

Starting a war based on false information with little to no plan for rebuilding may be a start.

In what treaty did we condition our power to go to war on sufficient bureaucratic preparation?

Starting a war based on misinformation and no gameplan is manifestly a bad idea, but not every poorly conceived war is criminal.
2.10.2009 6:53pm
Al Maviva:
Power promotes pragmatism, as they say.

Well, JBGFYTV, you just need to understand these as a better caliber of crimes against humanity because they are being committed by the good people we like and trust, and not Teh Evil Stoopid Republicans.

Plus the new guy signed executive orders banning torture, rendition, and obsessive government secrecy, so none of that stuff is happening here. And two plus two equals five and I just *love* me some big brother.
2.10.2009 7:11pm
C. Gittings (mail) (www):
Oren,

See...

* Kellogg-Briand Pact (1928):

http://www.yale.edu/lawweb/avalon/imt/kbpact.htm


* Charter of the International Military Tribunal (1945), arts. 6-8:

http://avalon.law.yale.edu/imt/imtconst.asp#art6
2.10.2009 7:14pm
MarkField (mail):

If there are classified documents that would contribute to the defense, it's hardly fair to allow the suit to proceed.


If so, and if Jeppeson requests such documents, then the government ought to be forced to pick up Jeppeson's defense and indemnity.
2.10.2009 7:41pm
Benjamin Davis (mail):
A Call to End All Renditions is a great piece on this.
Best,
Ben
2.10.2009 7:46pm
PC:
A Call to End All Renditions is a great piece on this.

Kidnapping a person and sending him to another country to be "questioned" is abhorrent (you too, Clinton). If we kidnap a terrorist from a hostile country and render him to a court of law? No problem. It's a violation of sovereignty, but if the other option is war, I'll take the rendition route.

This way we can avoid all of the beatings, sodomy and genital slicing.
2.10.2009 8:56pm
tsotha:
What exactly is the difference, aside from embarrassment? Are you suggesting that national security is harmed by the government admitting facts America's adversaries already know?

Without getting into this specific case, the possibility exists, that the "facts" are in fact erroneous, and that correcting the misconceptions would reveal the famous "means and methods". In the end that's the problem, isn't it? The government is often in the position of being unable to rebut falsehoods without revealing sensitive data. And because the system must take this into account, there is always a way to hide things that are simply embarrassing.

It may be that Obama doesn't want his ability to make this assertion curtailed, though it's difficult to believe a guy who manages to slip the phrase "the failed policies of the last eight years" into every other sentence would be predisposed to cover up crimes that occurred in the previous administration.

Having worked in sensitive government stuff myself, I can tell you there are quite a few publicly documented "facts" remarkable for being manifestly incorrect, usually because the documenter didn't or couldn't know the whole story.
2.10.2009 9:35pm
Bruce Hayden (mail):
If so, and if Jeppeson requests such documents, then the government ought to be forced to pick up Jeppeson's defense and indemnity.
Which is back to Jeppesen being sued because the government being immune from such suit, and this being a way sought around that. Which is why your suggestion isn't going anywhere.
2.10.2009 9:39pm
MarkField (mail):

Which is back to Jeppesen being sued because the government being immune from such suit, and this being a way sought around that. Which is why your suggestion isn't going anywhere.


Governmental immunity isn't written in the heavens. It's a rule that, like most rules, can be changed. I think the rules need to be changed in an effort to accomodate the government's real need for occasional secrecy and the rights of injured parties. Putting the costs on the government seems the right way to make sure that privilege is invoked only when truly necessary.
2.10.2009 10:45pm
Anderson (mail):
See...

* Kellogg-Briand Pact (1928):


I was wondering a while back if that's one reason why we haven't "declared war" since WW2.
2.11.2009 9:34am
jukeboxgrad (mail):
lecter:

You misunderstood my argument: XON asserted that "State secrets are a dangerous thing to a democracy..." I refuted him with several counterexamples from foreign constitutional democracies. I never suggested that the USA should adopt, e.g., Britain's Official Secrets Act or any other similar legislation.


No, I didn't misunderstand your argument. You misunderstood my analogy.

Conservatives frequently mock anyone who makes any reference to foreign law, even if it's clear that the person is not suggesting "that the USA should adopt [any particular foreign] legislation."

=================
connecticut:

If Government contractors are going to be liable for doing what the Government contracted with them to do, the Government will be forced, eventually, to indemnify all of its contractors against precisely this risk


Then that's a good way to discourage the government and government contractors from performing illegal acts.

=================
video:

The hate-Bush left was calling for Bush's impeachment long before Bush's list of crimes is as long as you contend it is now. It started at least as early as Abu Ghraib, possibly before.


As of 2002, Bush had already imprisoned a US citizen (Hamdi) without due process. In my opinion, that's an impeachable offense. Nevertheless, aside from some trivial exceptions, there were not serious calls for impeachment until after Abu Ghraib.

Let us know if you can show otherwise. And please make sure to notify us when Obama imprisons a US citizen without due process.

long before Bush's list of crimes is as long as you contend it is now


Nice job making a completely irrelevant and disingenuous comparison. The issue is not comparing "Bush's list of crimes … now" to "Bush's list of crimes" at the time that people started calling for his impeachment. The issue is "Bush's list of crimes" at the time that people started calling for his impeachment, as compared with Obama's alleged "list of crimes" now.

how many war crimes does Obama get a pass on before you'll call him a war criminal?


Zero. Please show proof that Obama has committed "war crimes."

No one on the left would ever argue that writing a legal memorandum constituted a war crime.


No one on the right would ever be silly enough to imply that an opinion about state secrets is indistinguishable from an opinion about torture.

=================
maviva:

you just need to understand these as a better caliber of crimes against humanity


You just need to understand that some people have ODS. One symptom is claiming that Obama committed "crimes against humanity," even in the absence of evidence that Obama committed "crimes against humanity."

=================
rpt:

Let's see what happens when Holder has taken over.


I agree. I think it's wise to wait a few more nanoseconds before jumping to conclusions.

Don't underestimate the ability of the current DOJ holdovers to influence the transition decision-making in cases they have been handling for some time.


Exactly.
2.11.2009 9:41am
Anderson (mail):
Don't think I saw this above ... Marc Ambinder has an item on the Mohamed case and the state-secrets issue more generally, which suggests that the instant hysteria may be, well, hysterical.

Definitely worth a look.

"I completely agree with the decision," said William Weaver, a professor at the Unviersity of Texas at El Paso and a long-time critic of the privilege. "You can't unring the bell. Once this stuff is out and it's been released, then it's over."
2.11.2009 9:43am
Al Maviva:
Jukeboxgrad, if Yoo committed a warcrime by issuing a legal memo, then how is it less of a warcrime to take actions to cover up what Yoo did? Is that not at least accessory-after-the-fact? Legal privileges are a wonderful thing but the last time I checked, national security classification may not be used to cover up evidence of crimes. You know, the President has original classification authority. In keeping with his executive order promoting openness in government, he could just declassify this information.

I personally don't buy that Yoo committed warcrimes and believe that the government is probably acting responsibly here, though under Gonzales DOJ started over-using state secrets assertions. But this is pretty much the same opinion I had before the new guy took office. A lot of you guys have changed. I simply enjoy needling you as you go to great lengths to defend or at least act very coy about what you would have condemned in no uncertain terms just 21 days ago in fairly sneering terms. Anderson being all coy supra about plausible defenses for the Administration's actions is a great example of this. It appears increasingly possible that party loyalty may have been the underlying principle guiding the last 7 years' criticism of Bush.

So are you guys Democrats, or are you liberals? Used to be there was a difference.
2.11.2009 10:06am
Richard Aubrey (mail):
Al. When? I mean since Scoop Jackson died.
2.11.2009 10:30am
Anderson (mail):
Anderson being all coy supra about plausible defenses for the Administration's actions is a great example of this.

See the Ambinder article I just linked, and that Prof. Adler has now posted on.

My priorities for Obama on this set of issues would go like this:

(1) Don't torture.

(2) Don't commit other war crimes.

(3) Don't lock people up for years without trial.

(4) Don't cover up Bush's violations of (1-3).

I will be disappointed and critical if Obama wimps out on (4), but (1-3) are more important. And the man hasn't been in office for a month.

Just because some people with too much free time (like me, evidently) have leisure to bloviate about this stuff on blogs, doesn't mean that Obama's people have had time to sort through the real thing.
2.11.2009 10:30am
Ken Arromdee:
Conservatives frequently mock anyone who makes any reference to foreign law, even if it's clear that the person is not suggesting "that the USA should adopt [any particular foreign] legislation."

I have never heard of a conservative thinking that a reference to foreign law needs to be mocked when the reference is being used to show that another person's reference to foreign law isn't accurate.
2.11.2009 11:25am
Oren:


* Kellogg-Briand Pact (1928):

I was wondering a while back if that's one reason why we haven't "declared war" since WW2.

If the KBP is controlling international law, then Saddam Hussein is a war criminal for, inter alia, the invasion of Kuwait. Hence, the US action was required under the various UNSC resolutions that mandate the cooperation of every state in apprehending war criminals.
2.11.2009 11:47am
C. Gittings (mail) (www):
Oren,

Excuses aren't valid grounds for war -- and neither are arrest warrants.

You should read the judgment of the IMT at Nuremberg. This is all discussed at great length, excuses included.
2.11.2009 11:57am
jukeboxgrad (mail):
maviva:

if Yoo committed a warcrime by issuing a legal memo, then how is it less of a warcrime to take actions to cover up what Yoo did? Is that not at least accessory-after-the-fact?


I suppose it might be, at least theoretically. If and when facts become available to support your conjecture, I'll be at the front of the line complaining about it.

Maybe you haven't noticed, but lots of people, including me, have complained about this move by Obama.

In keeping with his executive order promoting openness in government, he could just declassify this information.


He could, and I think he probably should. I also think certain people are revealing their insincerity by being extremely quick to jump to all sorts of speculative conclusions.

A lot of you guys have changed.


Prove it. By using specific quotes, not sweeping generalizations that are rooted mostly in your imagination.

===============
ken:

I have never heard of a conservative thinking that a reference to foreign law needs to be mocked when the reference is being used to show that another person's reference to foreign law isn't accurate.


What "isn't accurate" is your portrayal of what happened in this thread.

You are implying that lector made his "reference to foreign law" in response to "another person's reference to foreign law." Trouble is, that's not the case. lector made his "reference to foreign law" here, responding to a comment here. lector's comment made "reference to foreign law." The prior comment did not.
2.11.2009 12:02pm
Oren:

Excuses aren't valid grounds for war -- and neither are arrest warrants.

You should read the judgment of the IMT at Nuremberg. This is all discussed at great length, excuses included.

The UN Security Council Resolutions that mandate cooperation in apprehending war criminals postdates the IMT at Nuremberg and are therefore controlling.
2.11.2009 12:50pm
Richard Aubrey (mail):
Oren
Too bad we can't agree on what a war criminal is.
We have threats that George Bush could be arrested in Belgium, while Ahmedwhosits travels around giving speeches without let or hindrance, except for university presidential scoldings.
Pinochet got charged for crimes against humanity, Castro not.
Saddaam and Assad pere et fils not. Jewish political leaders threatened in the UK while traveling.
The King of Jordan did what he had to do--hence Black September--but not without jumping a couple of human rights fences. No leader of an Arab nation which starts a war against Israel. The boys in Khartoum?
Nobody from the old USSR KGB is being Hagued. But we have geriatric Krauts accused, sometimes accurately, of being concentration camp guards going in the dock in the US and other countries.
Funny how that works.
Not so hard to understand why some don't trust the whole idea.
2.11.2009 1:54pm
SG:
(3) Don't lock people up for years without trial.

This just in:

"Solicitor general nominee says 'enemy combatants' can be held without trial"

[Elena Kagan] echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.
2.11.2009 2:05pm
Richard Aubrey (mail):
Well, now that I think about it, it's a good idea. POWs. End of hostilities. That sort of thing.
Why didn't I figure this out earlier? Like, say, before Jan 20 last?
2.11.2009 2:27pm
C. Gittings (mail) (www):
"The UN Security Council Resolutions that mandate cooperation in apprehending war criminals postdates the IMT at Nuremberg and are therefore controlling."

Mandating cooperation in apprehending war criminals is not an authorization for war. The principles of the IMT Charter were adopted by UN G.A. Res. 95(I) in 1946. The UN Charter itself embodies the principles of Kellogg-Briand and the IMT Charter IRT aggression. There was in fact no UN authorization for the Iraq invasion, and even if there had been, there was no valid reason for such an authorization. The simple truth is that Iraq was not a significant military threat to the United States or anyone else.

Excuses are not reasons, no matter how plausible they are -- and the lies trumped up for the Iraq invasion were never plausible.
2.11.2009 4:14pm
Oren:

There was in fact no UN authorization for the Iraq invasion, and even if there had been, there was no valid reason for such an authorization.

There was no valid reason for Congress to have authorized it either. Too bad, eh?


The simple truth is that Iraq was not a significant military threat to the United States or anyone else.

Agreed. I never supported the war in Iraq (read the back comments on this blog). On the other hand, anyone that think that KBP is valid international law is smoking some pretty strong stuff. Maybe it's the kind of law that's respected only in breach?
2.12.2009 1:49am
C. Gittings (mail) (www):
Oren,

You mean just like any other sort of law?

It seems clear that bank robbers generally rob banks thinking it's a good idea. The fact that Congress authorized a crime merely implicates them in it -- and while many of them did so on the basis of fruadulent representations by the administration, it seems clear that many others willingly aided the fraud. Under the Constitution, they have legislative immunity, but under international law they have none. The United States invasion of Iraq was every bit as criminal as the Iraqi invasion of Kuwait was.

The Kellogg-Briand pact is still a treaty in force for the United States, and as I said, it basic principles are embodied in the UN Charter. It has as much legitimacy as the US Constitution or any other international treaty. Or any other law for that matter. When you have a government of criminals like ours over the last eight years, all laws are just window dressing whenever they get in the way. The worst crime of the Bush administration was their deliberate subversion of our laws. There isn't anything Al Qaeda could do to us that could damage us as much as that did.
2.12.2009 9:57am
ChrisTS (mail):
Wait, wait ... did I miss my chance to agree, or disagree, or protest, or commend?
2.13.2009 7:51pm

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