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Prudence on State Secrets Privilege:

Marc Ambinder has an interesting post in which unnamed Obama Administration officials and national security law experts explain the Administration's continued reliance on the state secrets privilege in the Mohamed v. Jeppesen Dataplan case.

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

"If you decide today precipitously to waive this privilege, you can't get it back, an administration official said. "If you decide to assert it, you can always retract it in the future." . . .

The officials who spoke would not discuss the particulars of the case. They did agree to discuss the various cross-pressures that the administration finds itself facing.

One is that many Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks. . . .

The state secrets privilege has been bureaucratically calcified to an extent that worries many experts, with the Department of Justice making the decision about what's harmful more and more often, and the CIA and other intelligence agencies having less of a say. There is evidence that the privilege has always been used in this way, but that the Bush Administration's invocations were subject to more (legitimate) watchdogging from the press and outside interests. Some Obama administration officials believe that the privilege's assertion is legitimate, but that the Supreme Court, in the case which gave rise to the privilege, was much too deferential to the government.

Crust (mail):
If the issue really was that they're not yet fully informed, why didn't they just ask for an extension? As Greenwald points out, the Obama DOJ has been perfectly willing to seek -- and has been granted -- extensions in other cases, indeed criminal cases. Since this is a civil case, there is less need for swiftness (no one is sitting in prison) and correspondingly little concern it would not be granted.
2.11.2009 10:42am
MarkField (mail):
I guess I don't understand why a general review of the privilege would preclude waiving it in this particular case. A waiver in one case doesn't demand a waiver in others arising out of different facts. Had they said they weren't yet familiar enough with the issues in this case, I would understand that. This "explanation" is, well, not.
2.11.2009 10:44am
Just an Observer:
It is useful to read some actual reporting on this issue from inside DOJ, even if it is not for attribution. And it is heartening to see some indication that we should not overgeneralize too much about this yet.

I do wonder about why the administration did not just ask for more time from the court.

Since no one expects the government to eschew the state-secrets doctrine completely, and DOJ says it wants to review things case-by-case, the traditional use of the privilege would seem to offer an even more granular approach. There, instead of trying to get the whole case tossed up front, the government asserts the privilege point-by-point during the course of the trial and pretrial stages.
2.11.2009 10:46am
Tony Tutins (mail):

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

As I thought. Never tear down a fence until you figure out why it was put up in the first place.
A waiver in one case doesn't demand a waiver in others arising out of different facts.
2.11.2009 11:04am
Tony Tutins (mail):

A waiver in one case doesn't demand a waiver in others arising out of different facts.

To make the later arguments distinguishing the facts, they had better understand the whole universe of such cases, first.

Plus the average person (like a commenter on the other thread) cannot distinguish one fact situation from another, because he (the commenter) thought that Sweden's payment of $450K to asylum seekers that the US helped deport, was an admission that the US was liable for damages suffered by a terrorist tranported from the former Yugoslavia to Afghanistan.
2.11.2009 11:10am
Crust (mail):
Furthermore, Ambinder doesn't even address the issue of why the DOJ is trying to use the states secrets privilege to get the case dismissed, rather than the pre-Bush practice of using it on a document by document basis. By ignoring the alternative, he has his thumb firmly on one side the scale.
2.11.2009 11:21am
Anderson (mail):
Furthermore, Ambinder doesn't even address the issue of why the DOJ is trying to use the states secrets privilege to get the case dismissed, rather than the pre-Bush practice of using it on a document by document basis.

It certainly is not strange to think that the subject matter of a case would be so permeated with privileged material, that only a blanket invocation of the privilege would suffice.

Isn't the Jeppesen case built on the flights of the CIA-chartered plane to various "secret" locations? How can the case be proved without that information?
2.11.2009 11:31am
Richard Aubrey (mail):
I recall a workers comp case where the plaintiff lost in SCOTUS because the Air Force would not acknowledge the existence of the place the guy had worked. (Area 51).
2.11.2009 11:43am
Just an Observer:
Isn't the Jeppesen case built on the flights of the CIA-chartered plane to various "secret" locations? How can the case be proved without that information?

My understanding, having not read the case but only press accounts, is that the plaintiff claims the case can be proved using non-secret evidence. (That argument has not been tested, since the trial has been stopped.)
2.11.2009 11:56am
Anderson (mail):
Perhaps the problem in Jeppesen then is that CIA was so damn sloppy, that guy was able to write his Ghost Plane book about it, not to mention the lawsuit.

That would indeed seem to expand the doctrine to a "state embarrassment privilege"; perhaps that will be the conclusion of DOJ after this alleged review is completed.
2.11.2009 12:03pm
Richard Souther:
JAO: "My understanding, having not read the case but only press accounts, is that the plaintiff claims the case can be proved using non-secret evidence. (That argument has not been tested, since the trial has been stopped.)"

The problem is not with the Plaintiff being able to prove his case without the government secrets, but with the Defendant not being able to prove a defense without the government secrets. It would be patently unfair to allow the Plaintiff to proceed before a jury and then prevent the Defendant from presenting its side to the jury because its side requires the disclosure of government secrets. If one party, Plaintiff or Defendant, is unfairly prejudiced because of the inability to prove a case due to the government secrets then, the case cannot proceed because of the unfair prejudice.

Holding otherwise would be akin to saying: "I'm sorry the U.S. government prevented you from proving your version of what happened. However, the other side was able to prove their version, without any countervailing facts presented, so you owe them money."
2.11.2009 12:05pm
Benjamin Davis (mail):
Got a report that Russ Feingold is pressing for a classified meeting for him to go over the assertion in the Jeppesen case with DOJ persons. So there is some weigh-in that is pretty direct from a Senator.
Best,
Ben
2.11.2009 12:07pm
Chris 24601 (mail) (www):
State-secrets privilege seems like an unusual thing to write to an advice columnist about.
2.11.2009 12:07pm
Richard Aubrey (mail):
Ben.
So how is Feingold at keeping secrets? Anything like LeakyLeahy?
Would that, in your opinion, be a feature or a bug?
2.11.2009 12:17pm
Guest14:
It would be patently unfair to allow the Plaintiff to proceed before a jury and then prevent the Defendant from presenting its side to the jury because its side requires the disclosure of government secrets.
That's certainly not the general rule for privileged information relevant to a defense in a civil suit. If you are sued, and you can only effectively defend yourself by revealing privileged information, you either waive the privilege or you lose. That's just how it works.
2.11.2009 12:38pm
Oren:
Richard, we elect our Senators to use their better judgment. That is most definitely a feature.
2.11.2009 12:43pm
Oren:

That's certainly not the general rule for privileged information relevant to a defense in a civil suit. If you are sued, and you can only effectively defend yourself by revealing privileged information, you either waive the privilege or you lose. That's just how it works.

First of all, that's not "how it works" unless that phrase is meant to denote "how I think it should work".

More to the point, Jeppesen cannot waive the privilege because it is not theirs to invoke.
2.11.2009 12:45pm
Thales (mail) (www):
This is one of those areas where the Obama administration needs to decide how much truth and reconciliation it with regard to the prior regime. I have yet to see a compelling explanation of why the privilege cannot be asserted on a document by document basis, or why in camera review by the judge would be inappropriate. It does strike me as unfair and probably violative of due process to both assert the privilege and then claim that you are unable to put on a defense. Especially since the various rendition plaintiffs' claims look pretty compelling--has anyone poked credible holes in their prima facie cases of illegal kidnapping and torture? In the Arar case, for example, by all press accounts we appear to have actual innocence of any wrongdoing by the plaintiff, and he has received substantial compensation from the Canadian government.
2.11.2009 12:59pm
Just an Observer:
Holding otherwise would be akin to saying: "I'm sorry the U.S. government prevented you from proving your version of what happened. However, the other side was able to prove their version, without any countervailing facts presented, so you owe them money."

Of course, it could also be akin to saying to the plaintiff, "I'm sorry the U.S. government prevented you from getting the damages you otherwise would be due."

There can be mitigations for this, such as the government making the defendant whole for the costs of protecting its secrets when the government intervenes in such a third-party case, or substituting the government as defendant. That might even be statutorily authorized in legislation governing the state-secrets privilege generally.

Such hypotheticals just bolster the argument for some such legislation. It is increasingly apparent that we need to rely on more than just restraint on the part of the executive not to use an open-ended privilege wrongly or unfairly.
2.11.2009 12:59pm
MarkField (mail):

To make the later arguments distinguishing the facts, they had better understand the whole universe of such cases, first.


That's entirely possible, but then the right way to do that is to ask for more time.
2.11.2009 1:08pm
PubliusFL:
Thales: It does strike me as unfair and probably violative of due process to both assert the privilege and then claim that you are unable to put on a defense.

That would be unfair if the party asserting the privilege were the same party claiming to be unable to put on a defense. But that's not the case here.
2.11.2009 1:13pm
Oren:

I have yet to see a compelling explanation of why the privilege cannot be asserted on a document by document basis, or why in camera review by the judge would be inappropriate. It does strike me as unfair and probably violative of due process to both assert the privilege and then claim that you are unable to put on a defense.

The US gov't is the one claiming the privilege, not the defendant. It is unfair for a defendant to be tried in a US Court while, concurrently, the US gov't refuses to allow it access to potentially exculpatory evidence.
2.11.2009 1:19pm
NTB24601:
Apparently, the ACLU even told the DOJ that they would consent to an extension. The "prudence" explanation just doesn't hold water.
2.11.2009 1:24pm
Tony Tutins (mail):

That's entirely possible, but then the right way to do that is to ask for more time.

Marine Col. Ralph Kohlmann recently taught the Obama administration that judges don't have to grant any extensions.
2.11.2009 1:41pm
NTB24601:
Oren:

The US gov't is the one claiming the privilege, not the defendant. It is unfair for a defendant to be tried in a US Court while, concurrently, the US gov't refuses to allow it access to potentially exculpatory evidence.

This defendant entered into a contract with the United States to provide the services that gave rise to this lawsuit. If they were competently advised, the price of that contract should have included the cost of insurance to protect the defendant from this risk. If the United States' assertion of privilege impairs the defense, that will raise the cost of insurance and, accordingly, raise the cost of future government contracts. In effect, this allocates the cost of the privilege to the United States, the party asserting it.
2.11.2009 1:46pm
Tony Tutins (mail):

If they were competently advised, the price of that contract should have included the cost of insurance to protect the defendant from this risk.

Mere competence is not enough. I believe this shift of liability from the United States to their travel agent is unprecedented.
2.11.2009 1:49pm
Angus:
Apparently, the ACLU even told the DOJ that they would consent to an extension. The "prudence" explanation just doesn't hold water.


This was strictly a civil action, correct? Why couldn't the ACLU just re-file after the DOJ completes its review of the case?
2.11.2009 2:03pm
NTB24601:
Tony Tutins:
Marine Col. Ralph Kohlmann recently taught the Obama administration that judges don't have to grant any extensions.

Do you mean Army Col. James Pohl? He's the military judge at Guantanamo who denied the administration's request for a 120-day extension. The administration, however, effectively got the extension anyway by withdrawing the charges without prejudice.

Regardless, this is a civil case, and the opposing side (ACLU) stated that it would consent to an extension. It would be unusual for a court to deny an extension where all parties consent. (It has happened to me, but its unusual.)


Mere competence is not enough. I believe this shift of liability from the United States to their travel agent is unprecedented.

I don't know a great deal about the underlying facts of this case. However, if the contractor knew its services were part of a secret program of dubious legality -- like the rendition program -- then it should have accounted for exposure.
2.11.2009 2:04pm
NTB24601:
Angus:

This was strictly a civil action, correct? Why couldn't the ACLU just re-file after the DOJ completes its review of the case?

Res judicata?
2.11.2009 2:07pm
Thomas_Holsinger:
There are so many possible ways to screw up here that the Obama DOJ's reluctance to waive, or limit, invocation of privilege in this instance is prudent. They can always change their mind later. This way they don't have to consider deadlines.

I don't read continuation of the Bush DOJ's invocation of privilege as evidence of any policy decision by the Obama DOJ. They're just doing their job and keeping the government's options open until they've finished their internal reviews.

Other matters indicate that the Obama administration is reneging on tacit campaign promises, notably continuation of extraordinary rendition and waffling about coercion in interrogation. This is simply not one of those.

Solicitor General Kagan's recent decision to hold captured terrorists indefinitely might be backsliding, but I've only read fragmentary reports about that, and not what he actually said.

While it is fun watching lefties hyperventilate, in this instance methinks the lady doth protest too much. In less classical and more Simpsonian terms, "Don't have a cow, man."
2.11.2009 2:14pm
NTB24601:
The reason that I am not "hyperventilating" about this issue is that I believe in the advocacy system. The "prudence" argument irks me, simply because that explanation is not plausible on its face. I would have preferred the Obama Administration to instead say: "We want to hear a court weigh in on this issue. In making its decision, the court should continue to be presented with strong advocacy supporting the trial court's action."

Also, I doubt the ruling in this case will be the last word on the state secrets privilege. I hope that it will be resolved through legislation.
2.11.2009 2:31pm
zuch (mail) (www):
Richard Souther:

The problem is not with the Plaintiff being able to prove his case without the government secrets, but with the Defendant not being able to prove a defense without the government secrets. It would be patently unfair to allow the Plaintiff to proceed before a jury and then prevent the Defendant from presenting its side to the jury because its side requires the disclosure of government secrets. If one party, Plaintiff or Defendant, is unfairly prejudiced because of the inability to prove a case due to the government secrets then, the case cannot proceed because of the unfair prejudice.

The way it works in criminal prosecutions is that if the SSP is invoked by the state (due to the defence wanting access to evidence deemed secret), the defendant "wins"; the state can either fork over the secret evidence (possibly under safeguards), or it must drop the prosecution.

This is not quite analogous to a civil trial where the government (for whatever reason) is not a party, but here, the government is clearly allied with (and complicit in) the actions of the defendant, FWIW, and principles of fairness might suggest that the government ought to either release (and use) the evidence, or let the trial go forward without that evidence. In this particular case, I suspect it's less that the government doesn't want the defendants to use the evidence as it is that the government doesn't want the plaintiffs to use the evidence, putting it more in the same ball court as a criminal prosecution. From the looks of things, it would seem that most things "secret" here would be of a nature to help prove the plaintiffs case, rather than provide a defence. If so, it should be possible to allow the plaintiffs to proceed without that evidence if they so choose (and can sustain a motion for dismissal for lack of evidence).

That being said, there's nothing wrong with looking at the specific evidence sought to be protected, and determining from that (in camera) whether one side is unduly burdened and that a trial would be unfair. I'd note that other civil trials aren't tossed simply because some evidence is unavailable for use due to other privileges.

Cheers,
2.11.2009 2:32pm
Angus:

Res judicata?
IANAL, but my impression is that the Obama administration was seeking to get the case thrown out based on privilege, but not seeking any decision on the merits of the claim. Would Res judicata still apply if the administration later came back and said "Privilege does not apply in this case?"
2.11.2009 2:32pm
Just an Observer:
Thomas_Holsinger: Solicitor General Kagan's recent decision to hold captured terrorists indefinitely might be backsliding, but I've only read fragmentary reports about that, and not what he actually said.

This is getting a bit off-topic, but here is an LA Times story about Kagan's testimony at her confirmation hearing yesterday. It did not surprise me. Some with other expectations might consider it "backsliding, but I don't.

Some with absolutist positions about detainees may not agree. But like Kagan (and Obama and Holder) I believe we are at war, and that does entail detention of enemy combatants.

The hard part is determining the scope of that war and battlefield in principle, and determining who is an enemy combatant in fact. The Obama administration will be tested shortly to come to terms with those questions in court.
2.11.2009 2:34pm
Anderson (mail):
I was disappointed with Kagan, since I think that al-Qaeda is comparable to the Mafia, not to Nazi Germany or the Japanese Empire.

If the definition of "enemy" is narrowed to "al-Qaeda members," then I guess I can live with it. But the idea that any terrorist is an "enemy combatant" is just horseshit.
2.11.2009 2:47pm
Thales (mail) (www):
Re the res judicata comment above--by both the literal translation and under the legal doctrine, I don't follow you. There might be a final adjudication of the *issue* of the state secrets privilege which could not be relitigated (once appeals are exhausted), but that's not the same as the entire cause of action being precluded. And if the claim were dismissed without prejudice to give DOJ time to review or by mutual consent to a time extension, tolling agreement or the like, neither issue nor claim preclusion would apply.
2.11.2009 2:51pm
Just an Observer:
Anderson,

For my part, I hew to the language of the 2001 AUMF:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


I think that definitely includes Al Qaeda and the Taliban.
2.11.2009 2:54pm
zuch (mail) (www):
Richard Aubrey:
So how is Feingold at keeping secrets? Anything like LeakyLeahy?
Would that, in your opinion, be a feature or a bug?

Does this comment (in its entirety) have any legal significance?

Cheers,
2.11.2009 2:56pm
Anderson (mail):
JaO: Fair enough. Possibly my complaint is a policy issue, at least as regards al-Qaeda and the Taliban.

I wonder if Pakistan's ISI can be said to have "harbored" the Taliban pre-9/11?
2.11.2009 2:58pm
Richard Aubrey (mail):
zuch.
Yes. If Feingold gets a classified briefing on the subject and then leaks, the results will be the same as if the gov had spilled the beans in court.
That means, among other things, that the government's current purpose will be undone, and one of those results may be fewer people talk to us.
Leahy is a leaker. Not called "Leaky" for nothing.
So, if Feingold proves to be a leaker, is this a feature or a bug?
2.11.2009 3:07pm
Tony Tutins (mail):
Do you mean Army Col. James Pohl?

Yes, thanks. I grabbed the wrong story of a judge denying a delay.

if the contractor knew its services were part of a secret program of dubious legality -- like the rendition program -- then it should have accounted for exposure.

How much exposure? After all, my hypothetical habit of "borrowing" my neighbor's newspaper before he has a chance to read it would be a secret program of dubious legality. And one presumes that the Federal Government will obey the law -- even during the Bush administration. Only a psychic could have predicted what the ACLU would be suing for.
2.11.2009 3:13pm
Just an Observer:
Anderson,

Apologizing for continuing to sidetrack this thread ...

I do think that when the administration makes its moves on these core questions of the war's scope, that is bound to make some folks upset either way. And that could include some folks who supported Obama's election and have different hopes or expectations about where the lines would be drawn. Depending on where the lines are, the dissenters might include me, but so far not yet.
2.11.2009 3:15pm
Oren:

So, if Feingold proves to be a leaker, is this a feature or a bug?

It's a feature. He was elected by The People with the intent that he will use his better judgment in furthering their interests.
2.11.2009 3:19pm
NTB24601:
Angus:

IANAL, but my impression is that the Obama administration was seeking to get the case thrown out based on privilege, but not seeking any decision on the merits of the claim. Would Res judicata still apply if the administration later came back and said "Privilege does not apply in this case?"

I'm not sure. I couldn't find the District Court's order of dismissal online. According to the ACLU's appellate brief at p.2, "the court held that it 'lack[ed] subject matter jurisdiction' over the case and dismissed the complaint as 'non-justiciable.'" I think that makes the question one of collateral estoppel (issue preclusion) instead of res judicata (claim preclusion). A change in facts essential to the judgment -- like the waiver of privilege you hypothesize -- could render collateral estoppel inapplicable, which would allow the ACLU to re-litigate. So you might be correct. I don't understand how this is an issue of subject matter jurisdiction, though, so I remain uncertain.
2.11.2009 3:30pm
MarkField (mail):

Yes, thanks. I grabbed the wrong story of a judge denying a delay.


Happens to all of us. :)


This was strictly a civil action, correct? Why couldn't the ACLU just re-file after the DOJ completes its review of the case?


Putting aside statute of limitations issues, this would re-start the case from the beginning. I don't know how far the case proceeded up till now, but that's potentially a big sacrifice.


Mere competence is not enough. I believe this shift of liability from the United States to their travel agent is unprecedented.


I agree that it's unfair to demand that the defendant anticipate this problem in advance. In my view, the default rule would force the government to indemnify the defendant if the privilege did, in fact, preclude a defense. Internalizing the costs seems like a good safeguard.
2.11.2009 3:31pm
PubliusFL:
Oren: It's a feature. He was elected by The People with the intent that he will use his better judgment in furthering their interests.

You mean it's a feature for the one state whose people elected him to further their interests. Not so much a feature for the other 49 states who get to have the security level of the government determined by the senator with the loosest lips (and home-state electorate tolerant of loose lips).
2.11.2009 3:33pm
Richard Aubrey (mail):
Oren.
Define "better".
Does your point extend to any elected official's actions, no matter what?
Come on. Surely you don't want to go there.
The implication of Publius' point is that....Bush was elected by the entire population. So he must be even more free to exercise his better judgment.
Right?
Take a minute and rethink this.
Also, if the government presumes Feingold is a potential leaker, are they justified in refusing, as far as legally possible, to brief him?
2.11.2009 3:37pm
Oren:

Not so much a feature for the other 49 states who get to have the security level of the government determined by the senator with the loosest lips (and home-state electorate tolerant of loose lips).

If the Senators from other 49 States object to Mr Feingold's conduct of office, they have no shortage of tools with which to restrain him. In order of severity, the include: removal from sensitive committee assignments, exclusion from closed-door deliberations, censure and expulsion.

The fact is that the majority of the Senators voted to put him on the Judiciary and Intelligence committees, so the judgment here is not that of a lone Senator swimming against the wills of 99 others.

Richard, of course Bush was elected by The People to further his agenda. Except where his actions conflicted with the rules imposed on him by the US Constitution or US Statute, I have never claimed that his exercise of powers was not one intended by the framers. I disagreed with a lot of those policies but I don't believe I ever impugned his right to exercise the powers of his office.


Also, if the government presumes Feingold is a potential leaker, are they justified in refusing, as far as legally possible, to brief him?

Insofar as any particular disclosure is voluntary as a matter of law, they can refuse to read him in for whatever reason they want (for instance, they don't like his face).

Recall that we also elected Obama &Co to exercise their better judgment except when constrained by law.
2.11.2009 3:47pm
SG:
If the definition of "enemy" is narrowed to "al-Qaeda members," then I guess I can live with it.

You can live with it now that the president has a (D) after his name. Is that what you mean?
2.11.2009 3:51pm
Dissenting Justice (mail) (www):
Even before the oral argument, I predicted that the adminitration would hold on to the privilege. First, they had not announced a shift in policy, and lawyers don't do things like this at the oral argument itself. Second, they would continue asserting it because it is an important strategic device to get rid of cases.

But the latter reason presents the problem: so long as the DOJ has such a helpful technique for dismissing cases, and waiving it could make its usage ineffective in future cases, then DOJ really has no incentive to change course (other than the vocal criticism from Leftists to whom most voters do not listen). Also, to the extent that liberals support rendition -- rather than demanding transparent policies such as extradition - they seem to set themselves up for disappointment because successful abductions presumably require a lot of secrecy.
2.11.2009 3:56pm
Oren:
Oh, forgot to answer you question!

The phrase "use his better judgment" (which is atomic), means "to make the best reasoned decision possible".
2.11.2009 3:57pm
Thomas_Holsinger:
It is pertinent to discuss whether claims like this should be resolved by the judicial system, as opposed to the political system.

This particular action is an attempt to use the judicial system, by means of a civil suit for damages against what was basically a covert travel agent service, to attack the U.S. government's policy of extraordinary rendition.

And whether extraordinary rendition should be used is clearly an issue for the political system to determine, i.e., ultimately by elections. It's a matter of "war and peace".

The voters have an interest here because 9/11 proved that they're the ones who do the dying when the government is ineffective in protecting America from attack by foreign terrorists.

America is a democracy. The people make the ultimate decisions on matters that directly affect their interests, and living or dying is one of those.

The Obama administration was just elected. And it has decided to continue the extraordinary rendition policy of the two previous administrations, one of which was Democratic and one Republican, and both of which won second terms with the extraordinary rendition policy in effect.

Extraordinary rendition was an issue in the 2004 and 2008 presidential elections. It was not an important issue, at least to most voters, but it was an issue.

Now we have a THIRD straight President who has decided that extraordinary rendition serves American interests.

So why should we permit challenges, via the judicial system, to these decisions of the political system?
2.11.2009 3:59pm
Anderson (mail):
You can live with it now that the president has a (D) after his name. Is that what you mean?

No.

That was not Bush's policy, btw. Bush claimed an absolute, unreviewable executive power to designate ANYONE as an "unlawful enemy combatant" and to detain that person indefinitely.
2.11.2009 4:02pm
NTB24601:
Tony Tutins:

How much exposure? After all, my hypothetical habit of "borrowing" my neighbor's newspaper before he has a chance to read it would be a secret program of dubious legality. And one presumes that the Federal Government will obey the law -- even during the Bush administration. Only a psychic could have predicted what the ACLU would be suing for.

I think this quote from Richard Clarke's book Against All Enemies, pp. 143-144 (via HuffingtonPost) answers that point well:
"extraordinary renditions", were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgement of the host government.... The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."

There may be good reasons for a rendition, but everyone involved should realize that there are significant legal risks involved. For a private corporation, that means either get insurance or (if you can't get insurance) then charge the government a premium to account for the exposure.

MarkField:
I agree that it's unfair to demand that the defendant anticipate this problem in advance. In my view, the default rule would force the government to indemnify the defendant if the privilege did, in fact, preclude a defense. Internalizing the costs seems like a good safeguard.

I agree that requiring indemnity from the government is a better solution. In absence of such legislation, though, I find it more equitable to allocate the cost to government contractors (who have some ability to anticipate exposure and pass the cost on to the government) than to plaintiffs (who do not).
2.11.2009 4:04pm
Richard Aubrey (mail):
Oren. The Senate did take steps wrt Leahy. But the damage had been done.
You also presume that the Senator's decision would be his best idea for the nation, which would probably strike most of us as correct. But, you know, they're all millionaires and few of them started out that way. Ditto the Clintons.
As one Saudi prince said, we take care of our friends who have retired from the state department so we have more friends who have not yet retired.
I have no reason to think their largesse stops at State.
2.11.2009 4:19pm
NTB24601:
Thomas_Holsinger:

Now we have a THIRD straight President who has decided that extraordinary rendition serves American interests.

This is pretty far off-topic from the state secret privilege. Nonetheless, I couldn't let that statement pass without the reminder that the objection to rendition was always based on the belief that the program was significantly different under the Bush Administration than under previous administrations. If the Bush Administration renditions weren't coupled with claims that prisoners were sent to secret prisons or to countries where they were subjected to torture, then you wouldn't have seen the same level of concern about the program.

The Obama administration has stated that it intends to end the secret prisons and that it will obtain assurances that destination countries won't torture. Granted, the Bush administration made the same claim, and so the Obama administration will need to be carefully scrutinized to ensure that it abides by its promises. Nonetheless, it is certainly not true that "a THIRD straight President who has decided" that what allegedly occured under the Bush administration served American interests.

So why should we permit challenges, via the judicial system, to these decisions of the political system?

Because certain fundamental individual rights should not be subject to the whims of majority rule.
2.11.2009 4:26pm
Thomas_Holsinger:
NT,

You equate extraordinary rendition with torture. The two are not the same. AFAIK, it was the Syrian govt. which brought in a rendered terrorist's mother to chew him out about going on jihad against her express orders, and this got him to confess. And the Syrians are probably the worst offenders in torture of rendered prisoners, though they don't use it for most. They just use it a lot. But not here.

Now a maternal scolding is certainly an unusual interrogation technique, but it ain't torture. Nor, for that matter, is a mother telling a dude he was really adopted.

Rendition and torture aren't the same, however much you may wish they were. One may lead to the other, and IMO we should not give prisoners to the Syrians because of the risk of torture by them, but those are two quite different things.

And the state secret/Executive privilege issue is related to rendition, not torture.

Try again.
2.11.2009 5:04pm
ArthurKirkland:
Those expressing a belief that the Obama Administration will maintain the rendition-torture-state secrets policies and practices of the Bush Jr. Administration seem likely to be engaging in premature celebration.
2.11.2009 5:17pm
Oren:

Now we have a THIRD straight President who has decided that extraordinary rendition serves American interests.

Fifth, Regan and Bush I did it too.

Substantively, I think you are correct that this is a political, not legal matter. That said, the US Congress has provided for civil suits in these cases and could, if they wanted, strip the courts from hearing any suit related to $LIST_OF_PROGRAMS.


Oren. The Senate did take steps wrt Leahy. But the damage had been done.

Electing someone is generally consider to be a forward-looking grant of trust. Putting him on the Select Committee for Intelligence is likewise a grant of trust. Sometimes trust is misplaced.

Regarding the Saudis (or whoever), it was assumed that "better judgment" meant towards the legitimate end in question and not towards personal gain. If we elect those with poor judgment or, worse, poor scruple, we have only ourselves to blame.

In fact, generally speaking, all the faults of our government are ours.
2.11.2009 5:22pm
Just an Observer:
And the state secret/Executive privilege issue is related to rendition, not torture.

Unfortunately, in general the privilege issue is related to whatever the executive chooses to say is a state secret. The government chose to intervene in this particular case, in which the complaint alleges both rendition and torture.
2.11.2009 5:23pm
NTB24601:
Thomas_Holsinger:

Rendition and torture aren't the same, however much you may wish they were. One may lead to the other, and IMO we should not give prisoners to the Syrians because of the risk of torture by them, but those are two quite different things.

That's my whole point. Your statement that three Presidents have now decided extraordinary rendition serves American interest is misleading for precisely the reason you provide: rendition and torture aren't the same. Two Presidents may have decided that rendition alone* serves American interests, but only one President allegedly practiced rendition to torture.

That's what the public debate is about: rendition to torture (or rendition to secret prisons). Its not about rendition alone. That's also what the Jeppesen case is about. See ACLU's appellate brief at p. 2: "Each of the five plaintiffs in this action was forcibly disappeared and transported to torture on flights organized by Jeppesen." (Emphasis added.)

We aren't talking about what Clinton did, or what Obama may do, (i.e., rendition alone) because that's something, as you correctly argue, that is altogether different from what Bush allegedly did: rendition to torture.

(*More properly, "rendition alone" should be called "rendition to a justice system" but that's a bit unwieldy.)
2.11.2009 5:39pm
Guest14:
More to the point, Jeppesen cannot waive the privilege because it is not theirs to invoke.
Doesn't matter. Think about this in terms of any other privilege. If a third party sues a lawyer, and the lawyer's effective defense would require disclosing privileged documents of an unrelated client, the end result isn't dismissal of the law suit due to the lawyer's inability to mount an effective defense.
2.11.2009 5:47pm
Just an Observer:
2.11.2009 5:50pm
Thomas_Holsinger:
NT,

AFAIK, the action here involves damages for personal injury from torture by the prisoners' own governments after rendition was complete, not for any injury during the prior period of their detention by the immune U.S. government and the providing of travel services by its as-yet not immune travel agent, Jeppesen.

I.e., the alleged liability of Jeppesen is related to its acts furthering rendition, as its acts had ceased when the prisoners were delivered to their own governments. I.e., it is being sued for providing travel agent services to the U.S. government during rendition. This is an attack on rendition.

And, being precise about the use of terms, extraordinary rendition, not ordinary rendition, is the subject here, and extraordinary rendition began during the Clinton administration.
2.11.2009 6:01pm
Thomas_Holsinger:
JAO,

I just read the article you linked, and IMO the proposed bill has major separation of powers issues. A legislative branch simply cannot delegate executive branch decisions to the judicial branch. An obvious example would be a bill subjecting the President's exercise of his veto power to judicial review to determine if a given veto is "reasonably likely to cause harm to U.S. national security or diplomatic relations."

Nadler's bill looks more like a "money tree" bill, i.e., to draw attention to Nadler as a worthy recipient of campaign contributions from generous and properly grateful lefties. So please send him all your money.

What would be effective here, and I wish you the best of luck in trying it, would be a bill stating that invocation of the State Secrets privilege is a waiver of the U.S. government's immunity from suit on the causes of action the privilege is raised in.
2.11.2009 6:14pm
Charlie (Colorado) (mail):
I realize that I'm a little bihind on this, but Jeppesen provides flight planning, maps, and weather reports. Is this case seriously taking the position that Jeppsen is liable for the torture allegedly committed by another country on one of that country's nationals because when the CIA returned the guy to his own country, the pilot used Jeppesen's maps to get there??

Are they supposed to be some kind of super-secret special "use these maps for extrodinary rendition" maps? Does the ACLU really propose the theory that Jeppesen is liable because the CIA couldn't have found the other country without Jeppesen maps? I bow to no one in my lack of respect for the CIA's competence, but that seems a bit much.
2.11.2009 6:18pm
Anderson (mail):
Meanwhile, we're already seeing the "if only the tsar knew" routine ...

Binyam Mohamed torture evidence 'hidden from Obama'

US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner's lawyer said last night, as campaigners and the Foreign Office prepared for the man's release in as little as a week.

Clive Stafford Smith, the director of the legal charity Reprieve, which represents Ethiopian-born Binyam Mohamed, sent Obama evidence of what he called "truly mediaeval" abuse but substantial parts were blanked out so the president could not read it.
2.11.2009 6:54pm
NTB24601:
Thomas_Holsinger:

AFAIK, the action here involves damages for personal injury from torture by the prisoners' own governments after rendition was complete, not for any injury during the prior period of their detention by the immune U.S. government and the providing of travel services by its as-yet not immune travel agent, Jeppesen.

Correct.

The debate is not about what I've called "rendition alone." That is kidnapping people and rendering them to foreign countries which will process them in their justice systems and which have agreed not to torture. That's what the Clinton administration did, and that's what the Obama administration has indicated it may do.

The debate is about what I've called "rendition to torture." That is kidnapping people and rendering them countries that will torture them. (Or kidnapping people and disappearing them to extrajudicial, secret prisons.) That's what the Bush administration is accused of doing.

I don't think you will find many human rights activists up in arms about rendition alone (probably some, but not many). That a violation of another country's sovereign integrity, but its not really a human rights issue.

Human rights activists get riled up about rendition to torture. That's a violation of Section 1, Article 3 of the Convention Against Torture ("No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.")

This lawsuit is about rendition to torture. The ACLU is not suing the United States merely because the United States kidnapped the plaintiffs and delivered them to a foreign country. The ACLU is suing because the United States (allegedly) kidnapped the plaintiffs and delivered them to a foreign country that tortured them.
2.11.2009 7:02pm
NTB24601:
Just an Observer:

FWIW Lawmakers Move to Curb State Secrets Privilege
That's welcome news. Thanks for the link.

Thomas_Holsinger:

I just read the article you linked, and IMO the proposed bill has major separation of powers issues. A legislative branch simply cannot delegate executive branch decisions to the judicial branch.

I think that's a stretch. We're talking about legislation that defines an evidentiary rule created by the judiciary.

You might want to take a look at the proposed legislation. We may disagree about some of the procedures created, but I think its difficult to argue against the goal of better defining the states secret privilege.
2.11.2009 7:14pm
Thomas_Holsinger:
NT,

AFAIK, ordinary rendition is de facto kidnapping of foreign nationals abroad by government agents for delivery to the U.S. criminal justice system and prosecution there, i.e., no use is made of foreign legal process (extradition is one variety of foreign legal process, but not the only one). Ordinary rendition started during the Reagan administration, and the best known example of it occurred during the Bush 41 administration when we invaded Panama to nab its narcotics trafficker President, Manuel Noriega. He hid out in the Vatican embassy in Panama City and left after being serenaded for days by loudspeakers playing awful music. He was then tried, and convicted, of criminal offenses in a U.S. District Court.

Extraordinary rendition is de facto kidnapping of foreign nationals abroad and turning them over to some foreign government, generally their own. They are then always detained &interrogated, sometimes with torture, and sometimes subjected to local criminal charges. The Saudis have a preference for rehabiliation of rendered Saudi prisoners, which seems to work most of the time. Certainly it doesn't work a fair amount too, but I'm not critical of that given our own sorry track record with recidivism by prisoners we've released from Guantamano.

Your attempt to distinguish extraordinary rendition which results in torture, from extraordinary rendition which doesn't, simply cannot work. The Saudis HAVE tortured Saudi nationals we provided to them via extraordinary rendition, and this is not even rare. It just doesn't happen often because they prefer rehabilitation. AFAIK, the Saudis tend to eventually execute those rendered prisoners they torture during interrogation, on the grounds that those guys are real hard cases and unsafe to release even if they do crack under torture.

But the Saudis have a good enough record about rehabilitation that I don't object to extraordinary rendition to them. I certainly object to it concerning Syria because, while the Syrian govt. tortures only a small fraction of rendered prisoners, they do it frequently enough that torture is a reasonable possibility with them.

Basically there are no guarantees about non-torture of rendered prisoners. Every foreign government does it, and some more than others. It's an imperfect world. Live with it.

Now if you want to define unacceptable extraordinary rendition as that done during Republican administrations, and acceptable extraordinary rendition as that done during Democratic administrations, feel free to do so. Just expect snickers and heckling.
2.11.2009 7:53pm
Thomas_Holsinger:
NT,

The State Secret privilege is a variety of Executive privilege, and is rooted in the tripartite form of our government as created by the Constitution. It was created when a President asserted it, not when the Supreme Court said okay.

The Supreme Court has the same power to order a President to surrender America to the enemy as it does to order a President to reveal military secrets to the enemy. I.e., when a President tells the Supreme Court "No, I won't, so try and make me", it's up to Congress to decide which side to impeach (or do nothing, in which case the President wins).

Ditto for the Suprme Court issuing an order decreeing that Jane Tauscher, 11th Dist. California, is Speaker of the House of Representatives rather than Nancy Pelosi, 8th Dist. California. Sure the Supreme Court can issue the order, but getting the House to heed it is another matter.

Separation of powers disputes between branches of the federal government are ultimately resolved by the political process. Each branch goes for as much as it thinks it can get away with. The Supreme Court has been the chief offender lately, though that has not been its first time overdoing it.
2.11.2009 8:11pm
zuch (mail) (www):
[Richard Aubrey]: So how is Feingold at keeping secrets? Anything like LeakyLeahy?
Would that, in your opinion, be a feature or a bug?

[Arne]: Does this comment (in its entirety) have any legal significance?

[Richard]: Yes. If Feingold gets a classified briefing on the subject and then leaks, the results will be the same as if the gov had spilled the beans in court.

No. The gummint could just demand that the information be kept out of court and not even relied upon through memory, as they did in the al-Haramain case (where everyone knows what the defence got and what it said, but the court insisted on the legal fiction that no one can actually "know" it). ;-) Problem solved!

Cheers,
2.11.2009 8:35pm
zuch (mail) (www):
JaO:

FWIW Lawmakers Move to Curb State Secrets Privilege

Is this an "I agree with you. Now make me do it" moment?

Cheers,
2.11.2009 8:43pm
RPT (mail):
Anderson:

Thanks for the Guardian link. You just beat me to it. This does corroborate one of my earlier thoughts that we should not presume that the DOJ holdovers (or DOD, or CIA, et al, for that matter, including those who have been "burrowed" into civil service posts) are telling Obama or Holder the truth, the whole truth, and nothing but, about ongoing cases or matters, much less past matters. As Monica Goodling told us, these characters ("loyal Bushies") have more personal loyalty than institutional or national loyalty, not to mention Yoo-like CYA motivations. Accordingly, we cannot assume anything from these early decisions.
2.11.2009 8:52pm
Richard Aubrey (mail):
zuch.
Wrong. If Feingold spills the beans, the results will be as if the court had spilled the beans, even if the court did not.
I suppose you might be restricting your statement to the courtroom proceedings themselves, but I'm talking about the results in the real world of proving yet again that talking to US intel can get you killed. Small stuff like that.
2.11.2009 9:24pm
zuch (mail) (www):
Richard Aubrey:

At least you acknowledge that your question has nothing to do with the legal issues involved (and perhaps a bit more with crass politicking if no worse).
I'm talking about the results in the real world of proving yet again that talking to US intel can get you killed. Small stuff like that.

Like outing CIA officers (and thus, their agents or contacts abroad)? I'd note that, in the bad old days, when CIA officers were disclosed to the Russians thanks to moles and double agents, it was routine for all their agents to be rounded up and executed....

Now, if you're done with your extraneous political digs, can we get back to the issue at hand?

Cheers,
2.11.2009 9:35pm
NTB24601:
Thomas_Holfinger:

Your attempt to distinguish extraordinary rendition which results in torture, from extraordinary rendition which doesn't, simply cannot work.

Its not my attempt. Its the distinction made by the opponents of the Bush rendition program. Its the distinction that Leon Panetta made during his confirmation hearings. Its a distinction made by the ACLU in the case at issue. Its also a distinction made by the Convention Against Torture. You may not agree with the distinction, but if you ignore it, then you are simply not participating in the discussion.

Basically there are no guarantees about non-torture of rendered prisoners. Every foreign government does it, and some more than others. It's an imperfect world. Live with it.

I suppose I was overly polite in my summary of the allegations against the Bush administration. The allegation isn't merely that the torture occurred. Its that the Bush administration rendered the prisoners with full knowledge that torture would occur. See ACLU's appellate brief, at p. 23.

The State Secret privilege is a variety of Executive privilege, and is rooted in the tripartite form of our government as created by the Constitution.
The area of executive privilege that touches on separation of powers is the deliberative process exemption from United States v. Nixon. By contrast, the State Secret privilege is based on the public safety concerns discussed in United States v. Reynolds. I suppose footnote 9 of Reynolds opens the door to your argument, but I still think its a stretch.
2.11.2009 9:44pm
Anderson (mail):
This does corroborate one of my earlier thoughts that we should not presume that the DOJ holdovers (or DOD, or CIA, et al, for that matter, including those who have been "burrowed" into civil service posts) are telling Obama or Holder the truth, the whole truth, and nothing but, about ongoing cases or matters, much less past matters.

Well, that's the point of the lawyer in the article, but my "tsar" snark derives from my suspicion as to whether Obama is really so innocent.

In a similar vein, it's alleged that the Gitmo authorities are using brutality in force-feeding a hunger striker (failing to lubricate feeding tube, etc.). From the NPR report, it appears this conduct is allegedly going on *now*. More secrets from Obama?

Time will tell.
2.11.2009 10:14pm
jukeboxgrad (mail):
holsinger:

it has decided to continue the extraordinary rendition policy of the two previous administrations, one of which was Democratic and one Republican, and both of which won second terms with the extraordinary rendition policy in effect. Extraordinary rendition was an issue in the 2004 and 2008 presidential elections.


It's true that the (respective) president's rendition policies were "in effect" at the time of the elections in 1996 and 2004. However, the relevant question is not whether the policies were "in effect" at that time. The relevant question is whether those policies were public knowledge at that time. I believe they were not. Can you demonstrate otherwise? Similarly, I believe that Reagan's rendition policies were not public knowledge at the time of his reelection in 1984.

ordinary rendition is de facto kidnapping of foreign nationals abroad by government agents for delivery to the U.S. criminal justice system


These terms are often used in a ways that are inconsistent and confusing. However, I think it's very common use the term 'ordinary rendition' to describe not just "de facto kidnapping of foreign nationals abroad by government agents for delivery to the U.S. criminal justice system," but also "de facto kidnapping of foreign nationals abroad by government agents for delivery to" a criminal justice system in a third country.

What you're calling "ordinary rendition" is also sometimes called "rendition to justice," as defined here (pdf):

Renditions to justice: apprehension of suspects without recourse to judicial proceedings by U.S. officials who are brought to U.S. or another State for trial or questioning on specific crimes.


Emphasis added.

I think the discussions on this subject would be much clearer if folks used the terms "rendition to justice" and "rendition to torture" instead of "rendition" and "extraordinary rendition."
2.11.2009 10:37pm
Thomas_Holsinger:
NT,

Since you believe everything you read, read this:

You will give all your money to Tom Holsinger. He is a good guy and will use it much better than you can. You can trust Tom Holsinger to act in your best interests.

Your story linked to a February 5 story in the Washington Independent. Here is a February 6 AP story:
"WASHINGTON (AP) — The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

That has long been U.S. policy, but some former prisoners subjected to the process — known as extraordinary rendition_ during the Bush administration's anti-terror war say they were tortured.

"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said Friday in his second day before the Senate Intelligence Committee. "I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries."

Panetta formally retracted a statement he made Thursday that the Bush administration transferred prisoners for the purpose of torture.

"I am not aware of the validity of those claims," he said."
2.11.2009 10:42pm
NTB24601:
Thomas_Holfinger:
Since you believe everything you read...
Reduced to ad hominems already? I guess this discussion is over.

Your story linked to a February 5 story in the Washington Independent. Here is a February 6 AP story:

"WASHINGTON (AP) — The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

You are correct that I could have relied on that AP article to support my point about Leon Panetta distinguishing rendition alone from rendition to torture. There are many other articles out there that also support the point. I like the Washington Independent, though, and it was the first I happened across in my quick search.
2.11.2009 10:59pm
jukeboxgrad (mail):
ntb:

Reduced to ad hominems already?


You should consider it a compliment. As another commenter said about holsnger's MO:

When your arguments are shot full of holes, you fall back to plan B: ad hominem attacks.
2.11.2009 11:11pm
Thomas_Holsinger:
NT,

You see only what supports your conceptions, while your eyes glaze over when they don't.
"... That has long been U.S. policy, but some former prisoners subjected to the process — known as extraordinary rendition_ during the Bush administration's anti-terror war say they were tortured.

"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said ..."

Jim Taranto put it another way, and I added some music:

"A New Rendition of an Old Song

James Taranto

"Barack Obama has been president for less than three weeks, and it's sometimes hard to remember how different everything was before change. Example: President Bush's policy of "extraordinary rendition," in which, it is said, terrorists were turned over to foreign intelligence services for interrogation. Legend has it that the foreigners tortured the terrorists.

Technically, this was not Bush's policy exactly. It was instituted by President Clinton. But that just shows how averse Bush was to change. Not only did he refuse to change his own policies, he didn't even change some of his predecessor's policies.

Now, however, everything really has changed, as detailed in this Associated Press report on CIA Director-designate Leon Panetta's confirmation hearing:
The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

OK, we guess not everything has changed. The U.S. will still do rendition, but the important thing is that now, for the first time, we will demand assurances that they won't be tortured.

Oh, wait:
That has long been U.S. policy, but some former prisoners subjected to the process--known as extraordinary rendition--during the Bush administration's anti-terror war say they were tortured.

Panetta must be toughening the demands for assurance, insisting that foreign governments pinky-swear and that the whole process be witnessed by a notary public, or something like that.

Or not:
"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said Friday in his second day before the Senate Intelligence Committee.

Hmm, what could it be that the Obama administration is doing differently? Oh, we know!

At least now the U.S. will no longer render terrorists for the purpose of having them tortured.

Uh, guess that's not it either:

Panetta formally retracted a statement he made Thursday that the Bush administration transferred prisoners for the purpose of torture.

"I am not aware of the validity of those claims," he said.

Heraclitus observed that change is the only constant. Finally, that paradox makes sense!"


Here's the old song:

Won't Get Fooled Again

the Who

"We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgement of all wrong
They decide and the shotgun sings the song

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again

The change, it had to come
We knew it all along
We were liberated from the fold, that's all
And the world looks just the same
And history ain't changed
'Cause the banners, they are flown in the next war

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
No, no!

I'll move myself and my family aside
If we happen to be left half alive
I'll get all my papers and smile at the sky
Though I know that the hypnotized never lie
Do ya?

There's nothing in the streets
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Are now parting on the right
And the beards have all grown longer overnight

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again
No, no!

Yeaaaaaaaaaaaaaaaaaaaaaaaaah!

Meet the new boss
Same as the old boss!"
2.11.2009 11:31pm
NTB24601:
Thomas_Holsinger:

You see only what supports your conceptions, while your eyes glaze over when they don't.

Nothing that you've quoted contradicts any of my comments. I am well aware that the Bush administration also claimed to seek assurances that prisoners would not be tortured. That's why I wrote this in my first response to you on this issue:

The Obama administration has stated that it intends to end the secret prisons and that it will obtain assurances that destination countries won't torture. Granted, the Bush administration made the same claim, and so the Obama administration will need to be carefully scrutinized to ensure that it abides by its promises.

Instead of contradicting my point, the Bush administration's claims strongly reinforce it: Even the Bush administration recognized a distinction between rendition to justice* versus rendition to torture. Otherwise, why would it have insisted it got those assurances?

The difference between the Bush administration and the Obama administration is that Bush administration is accused of engaging in rendition to torture, while the Obama administration is not. I don't think that we should simply trust the Obama administration. That's precisely why I support legislation to better define the State Secret doctrine.

(*I agree with jukeboxgrad that "rendition to justice" is a better term than "rendition alone.")
2.11.2009 11:59pm
NTB24601:
jukeboxgrad: "You should consider it a compliment."

Thanks. I will. =)
2.12.2009 12:03am
Just an Observer:
Thomas_Holsinger: I just read the article you linked, and IMO the proposed bill has major separation of powers issues. A legislative branch simply cannot delegate executive branch decisions to the judicial branch.

The separation of powers issues are not without nuance, but I think you are out there by yourself in asserting that Congress cannot act here.

The congressional view, at least, was summarized in the Senate Judiciary Committee report when the bill was reported during the last Congress:

Courts and scholars have debated the origins of the privilege and whether it is a ‘‘mere’’ common law rule or whether it also has some foundation in the Constitution, notwithstanding the lack of explicit textual or historical support for such a view. Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege, based on its Article III powers to set rules of procedure and evidence for the Federal courts, its Article I powers related to national security and foreign affairs, and the Necessary and Proper Clause. Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect ‘‘rooted’’ in our constitutional structure, there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege. Congress has passed numerous statutes regulating judicial proceedings that deal with national security information, such as the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act, none of which has ever faced a successful constitutional challenge.


Interestingly, although the minority report -- signed, IIRC, by all Republicans on the committee except Specter (Vice President Cheney not being an actual member of the Senate) -- argued that the bill should not be enacted because it would upset the balance the courts have struck with the executive branch in status quo precedents. But even these Judiciary Republicans did not argue that Congress is powerless to act.
2.12.2009 12:20am
Richard Aubrey (mail):
Zuch.
Missed again. The question was what happens if Feingold leaks.
Not what the judge does wrt courtroom procedings if Feingold leaks.
After all, when Leahy leaked, there wasn't even a court case involved. So when I made the comparison, it wouldn't have had to do with a court case.
So let's try this again. If Feingold leaks and US intel suffers as a result, is that a feature or a bug.
2.12.2009 8:38am
Just an Observer:
As a follow-up, Ambinder yesterday afternoon published what amounts to a not-for-attribution response from DOJ to the protest over its action in Mohamed et. al. v. Jeppesen.

It's a little bizarre, with Ambinder acting as the de facto spokesman for the administration. (He is excoriated by Greenwald for uncritical reporting of anonymous spin, not without justification. But I am less interested in Ambinder's behavior as a journalist than with the administration's reasoning, which I still find deeply troubling.)

Basically, here is Ambinder's summary of the way admninistration sources treat the question of why DOJ didn't just ask for more time from the court:


A further objection: why do my sources claim that the reason they invoked the privilege was to give them more time to figure everything out?

Three responses. One: government officials say the decision was made for a number of reasons. Two: asking for a continuance would have had the exact same effect as retracting the privilege in this case. And the government can, at any time it wants, withdraw the assertion of the privilege. As one outside expert explained it to be, dealing with the privilege in civil cases where the government has a lot of control over the process is very different than dealing it in the various Gitmo habeus corpus cases that are coming up for review. The government has much less discretion in the latter arena. Three -- Binyamin Mohamed's case has gone far down the road in the United Kingdom; the U.K. has already expended a great deal of energy (and taken many hits) for the United States, so pulling back might (a) hurt the British government, (b) create an even broader political row and (c) given ammunition to those who believe the U.K.'s government is giving cover to the U.S.


The latter rationalization illustrates with some candor that the government is still using the state-secrets privilege not to protect hard national security secrets that might tangibly harm us or aid our enemies in the field, but just to avoid political and diplomatic embarrassment.

I'm no more disposed to cover up British complicity with rendition and torture than to cover up U.S. complicity.

The clear lesson is that institutionally, U.S. government administrations are not disposed to police themselves in appropriate use of this open-ended privilege. They need to be reined in by some external actor, and that responsibility that falls on Congress.
2.12.2009 11:29am
zuch (mail) (www):
Jao:
The latter rationalization illustrates with some candor that the government is still using the state-secrets privilege not to protect hard national security secrets that might tangibly harm us or aid our enemies in the field, but just to avoid political and diplomatic embarrassment.

Which some might equate to "harm to the national security" ... where "national security" is defined in a somewhat 'liberal' kind of way. ;-)

Kind of like pointing out that some players on a championship team were doping might be inimical to their status as legitimate champions. Hell, it might even affect future bowl invitations, and that's certainly not inthe team's best interest....

Cheers,
2.12.2009 12:56pm
MarkField (mail):
The second rationale given to Ambinder -- "asking for a continuance would have had the exact same effect as retracting the privilege in this case" -- makes no sense at all. It's just plain false. Assuming Ambinder's stenography got this right, I find that pretty depressing.
2.12.2009 1:33pm

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