The Secret State Continues to Crumble
In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.
In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files. The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.
Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers. Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge. That is the judge’s job, not the government’s, the panel ruled.
While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.
As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case.
Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.
Strike Two.
I give credit to the Democratic party senators who labored to leave some way to preserve evidentiary rules in their work on DTA and MCA. The seams they created were faint, but the DC court has shown willingness to recognize their purpose was preservation of an independent judiciary.
Strike two as bmza says, but it’s still a subpoena duces tecum once removed. Just gotta hope the Judge is an honest broker and the Court diligent in the process. Better than before though still a screen to the Defense.
Secret State? Typo in title?
Back to read. Good morning everyone.
FunnyD.
Thanks. Fixed that.
Another chink in the rotting door of Bush’s Secret White House. Would that wood rot would finish the job, but a lot of difficult to assemble and keep focused advocacy will be needed to mount new jambs, doors and hinges that swing open as well as closed.
Now that’s a nice can opener!
somebody help me out here
here’s one from the “wayback” machine
stuff like this is why Fitz didn’t want to prosecute for the disclosure of the Plame information, right ???
things are falling apart for the bushies because Fitz DIDN’T prosecute
I’m not smart enough to understand. Would you please clarify and elaborate?
Bob in HI
back in the day, Fitz said he would not prosecute scooter (or was it rover ???) for disclosing information about Valerie Plame, because such a prosecution would create a “State’s Secrets” law similar to great britians’s State Secrets law, and Fitz said that would be bad …
so now I’m asking if Fitz HAD prosecuted, would that prosecution lend itself to preserving what the bushies are trying to hide here
I’m still pissed off about Fitz’ refusal to proecute, and I’m trying to find the upside to it …
That’s what OTHERS said about Fitz–and actually they said it would make it too easy to grey mail the case. All the CIA had to do is refuse to declassify stuff about Plame’s career, and by doing so they would prevent Fitz from proving she was covered.
But that’s not what I think he didn’t charge IIPA. I think he couldn’t prove that case for two very good reasons. One, he couldn’t prove definitively that Cheney knew Plame was covert and passed that on to Libby. (I’m sure he did know–I have a strong suspicion Cheney first learned of Plame from some memos she wrote that would have made it clear she was under cover).
The other problem is the whoel insta-declassification problem. Libby and Cheney constructed their lie such that their fallback, if either was charged, was to argue that the President had declassified Plame’s identity. And since her identity wasn’t classified any longer ON THOSE GROUNDS, you couldn’t charge an IIPA (that’s them arguing it, not me).
And then there’s the whole problem of indicting a sitting VP.
So while I thikn Fitz believed he had Cheney cold ordering her outing (and the jury understood that to some degree), there were other reasons he couldn’t charge that.
Thanks for your follow-up on this, EW.
But I thought the VP issue was settled by the Agnew precedent.
Bob in HI
Agnew wasn’t convicted for action he committed while Veep
his conviction was for actions before he became Veep, as gov of maryland or something …
a $500 bribe, IIRC
Agnew, the last CHEAP repuglitard
so this doesn’t cross into the type of “state’s secrets” stuff that was associated with Fitz refusal to prosecute
fair enough
those words just make me nervous
those “clouds”
So if I read you correctly, Fitz felt that it was too dicey to call b.s. on Pixie Dust while we were under SilentPervasiveSurveillanceDictatorship**?
** Just brainstorming that term to assess its usefulness, FWIW.
Because when
a presidenta crappy vice president does it, that means it’s not illegal, ya know.A heartening reiteration that the courts intend not to devolve into mere rubber-stamps for the executive.
Obviously, the Boumedienne decision last year gave some backbone to the judiciary, and I look forward to how Walker might use it.
Yeah, well, will you go over and tell Vaughn to hurry up please?
Wow, catching up on the AIG Hearings (Sen Banking Committee) on the archived CSPAN video today, all I can say is that there surely must be deep connections between the secrecy claimed for ‘national security’ and the disastrous financial events, which speeded up particularly near the end of the Bush II era.
(And there were lots of reasons it may have speeded up at that time, but boy, howdy… the poor information throughout the financial system really stunningly mirrors the low quality in the legal info of the time. Really stunning. Low quality, spotty info – with an emphasis on secrecy – is the bass line in this whole mess.)