9th Circuit Rejects Obama/Bush State Secrets Argument In Mohammed

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Marcy must have ESP or something, she was just talking about heinous state secrets claims earlier this morning. A three judge panel of the Ninth Circuit Court of Appeals, Chief Judge Mary Schroeder, William Canby and Michael Hawkins, has firmly rejected the vile cover up attempted against several detainees/former detainees led by Binyam Mohamed.

The full decision is here.

I would like to note two things quickly; first off this is a wonderful panel (they are all from Arizona and I have known all of them) and I really expected no less from them. Secondly, it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it. Do not be mistaken, however, this is a big blow to the government and a win for the rule of law.

Here is the operative paragraph of the decision:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

The key language here is "Only if privileged evidence is indispensable". I think in light of the process that Vaughn Walker is adopting in al-Haramain, and that has been already utilized in the DC Circuit in detainee cases, this is going to be an increasingly hard burden for the government to make. Very good news indeed.

135 replies
  1. Teddy Partridge says:

    Will Holder authorize an appeal to the full Circuit Court of Appeals and, if so, will Jay Bybee recuse himself?

  3. bmaz says:

    Hi there Wheelers and Wheelees. Marcy is out for a bit on a pretty special expedition (more to come on this later I assure you) and I am trying to resolve a matter so i don’t have to spend the rest of the week litigating it at a hearing. I will try to check in as i can, but read the decision and discuss. I only had a chance for a light skim, so if you see good stuff or something that needs to be pointed out and discussed, please post it. Thanks!

    • MadDog says:

      …if you see good stuff or something that needs to be pointed out and discussed, please post it. Thanks!

      In that case *g*, from pages 21-21:

      …A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.7 It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege…

      (My Bold)

      This sounds like a strong affirmation of Judge Walker’s rulings. He’s certainly got some friends on the 9th!

        • MadDog says:

          After reading the ruling, I can buy your impressions of these judges. Simple, succinct and as common sense as one can get!

          I’d like to think that jurists in the other circuits are paying attention to these rulings from the 9th, and to Judge Walker’s rulings vis a vis “State Secrets Privilege” invocations.

          Spines may be growing all across the Federal judiciary!

      • Funnydiva2002 says:

        Oh, please, oh please!

        Thanks for this, bmaz! I’m doing a Snoopy Happy Dance inside. We’ve been needing some good news, as well as backbone from the Judiciary.

        If you’re still in contact with anyone on this panel, send them a big ol’ THANK YOU from me/us. They’ll probably say “just doing my/our job”, but that doesn’t make this decision any less praise/gratitude-worthy, imho.

        Best
        FunnyDiva

    • sojourner says:

      By stating “Marcy is out for a bit on a pretty special expedition,” I assume that equates to something like “gone fishing.” She deserves whatever time she can get if that is the case!

  4. radiofreewill says:

    While bmaz is away, can anyone help with –

    How is “assert the privilege with respect to secret evidence (not classified information)” different from what BushCo was doing?

  5. phred says:

    A quick point I made on the thread below… It is worth noting that this decision came out of the 9th Circuit. Good thing Bybee wasn’t one of the 3 in this instance, eh?

    • NorskeFlamethrower says:

      Citizen jayt:

      Very good question…my own sense is that they are followin’ the Bush arguements to the extreme to get the federal court to blow ‘em up once and for all so they can’t come back from the dead.

    • RevBev says:

      My question exactly….is he doing it for the full strength of legal cover and authority. I frankly do not have any trouble with that.

  7. bmaz says:

    Here is the ACLU Press Release:

    Federal Court Permits Landmark ACLU Rendition Case To Go Forward

    Government Cannot Claim State Secrets To Deny Torture Victims Day In Court
    FOR IMMEDIATE RELEASE
    April 28, 2009

    CONTACT: Rachel Myers, (212) 549-2689 or 2666; [email protected]

    NEW YORK – A federal appeals court today ruled that a landmark American Civil Liberties Union lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in the Bush administration’s unlawful extraordinary rendition program can go forward. The U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The government had intervened, improperly asserting the “state secrets” privilege to have the case thrown out. Today, the U.S. Court of Appeals for the Ninth Circuit ruled, as the ACLU has argued, that the government must invoke the state secrets privilege with respect to specific evidence, not to dismiss the entire suit.

    “This historic decision marks the beginning, not the end, of this litigation,” said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. “Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ’secrets’ in a court of law.”

    In its ruling, the court wrote that “the Executive’s national security prerogatives are not the only weighty constitutional values at stake,” and quoted the Supreme Court’s decision in Boumediene v. Bush that security depends on the “freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers.”

    “The extraordinary rendition program is well known throughout the world,” said Steven Watt, a staff attorney with the ACLU Human Rights Program. “The only place it hasn’t been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court.”

    “I am happy to hear this news,” said Bisher Al-Rawi, a plaintiff in this case who was released from Guantánamo last year without ever having been charged with a crime. “We have made a huge step forward in our quest for justice.”

    In recent years, the government has asserted the state secrets claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public not only about the rendition program, but also about illegal wiretapping, torture and other breaches of U.S. and international law.

    Mohamed et al. v. Jeppesen was brought on behalf of Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah.

    In addition to Wizner and Watt, attorneys in the lawsuit are Steven R. Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case

  9. KiwiJackson says:

    Thanks from all here at work. For all you both are doing on the emptywheel site, another kick into the kitty for 100.

  10. laserda says:

    I think it’s time to trot out my theory on the Obama administration’s handling on this. Call me Pollyanna if you want — you may be right. But here it is:

    At the root of it, Obama’s Justice Department has two options available to it if it means to shut down Bush’s abuse of the Constitution:

    1. Reverse policy within the executive branch; or
    2. Let the courts do it for them.

    The difference between the two is that option one allows the next GOP administration to pick up where Bush left off. If Holder takes these cases to court and loses, precedent is set and the road to future abuse gets much more difficult. If we accept for the moment that option two is what they’re up to, then it only makes sense that they would choose the most onerous cases to “defend.” That they happened to run into judges hostile to their case seems more than a coincidence to me, I might add.

    I seriously think Obama/Holder are playing the long game here.

    –Pollyanna

    • MadDog says:

      Whether this is true or not, it may be the end result!

      Courts ruling on these issues sure as hell beats Executive branch “Unitary Executive” pronouncements.

      Even if the Obama Administration isn’t playing 11 dimensional chess on these cases, it sure is heartening that the Federal Courts are putting their considerable feet down and consigning the Unitary Executive to the legal trash heap forevermore where it rightly belongs.

      • NorskeFlamethrower says:

        Citizen MadDog:

        Brother Dogman, see above…I think that Obama’s folks are playin this so that the court’s will issue the coup d’gras.

      • bmaz says:

        Giving Obama credit for this is somewhere beyond delusional. Are we going to give Bush the same credit, or actually more since Obama has made the states secrets assertions stronger and more heinous?? This is just an absurd train of thought.

        • Funnydiva2002 says:

          but, bmaz
          It’s DIFFERNT when it’s OUR guy asserting evil things for good purposes! /snark

          Can’t wait for GlennGreenwald’s take on this. I seriously doubt he or you, bmaz, will take back their assertions that the Obama DOJ has been behaving more like ExecutiveBranch/DC insiders than 11-dimensional chess masters. Their arguments have the added virtue of being supported by actual facts rather than just hope and belief.

          FunnyDiva

        • laserda says:

          I think we may have to wait for the results before we make our judgment. I’m not convinced I’m right — not at all — but I can’t rule it out, either. When the Justice Department actually wins one of these rulings, let’s see what happens then. That’ll be the test.

        • chetnolian says:

          I respect your greater understanding bmaz. But if you were keen to achieve the right answer without seeming too “partisan” or indeed hanging what is now your own CIA out to dry, this is exactly what you would do. Then you could hold your hands up and say, all innocent like, ” I did try to protect you but the power of the judiciary got you anyway. Sorry. See you when you get out of jail.” Doesn’t seem atall delusional to me.

        • bmaz says:

          As Nell said, if that is the case, it is risky, wrong and one of the most fucking pathetic and cowardly acts imaginable. If that is what he did, he has totally abrogated his oath to office and the Constitution and should be impeached.

        • msmolly says:

          He’s already done that with his refusal to investigate and prosecute war crimes. It’s gonna be a long four years otherwise.

        • chetnolian says:

          I didn’t think it was. Anyone who has seen my occasional contributions will know I am right there with you on torture and especially interested in what happens to Binyam Mohamed.

          But.. Not far short of half your country still supports torture. I find that kinda shocking, though I know no-one on the Lake is in that half.

          Those of us who are really old will remember Judge John Sirica’s Grand Jury and its part in Watergate. People respect the legal process more than politicians.

          The 9th Circuit judgement is a model of clarity which will serve, I hope and trust, to be quoted in better and more valuable cases than getting a bit of cash out of Boeing/Jeppesen.

          The DOJ intervention has caused it to be handed down.I don’t know if that was deliberate, but I still think it could have been. Cynical? Maybe. Wrong? Maybe not.

          I rest my case, as they say my side of the Pond.

        • Peterr says:

          Maybe the reason that section from this opinion that I quoted @58 stood out for me is because I’m one of those old enough to remember Sirica.

          It’s a pity that Obama’s DOJ apparently doesn’t.

          And I can’t buy the argument that this is somehow deliberate planning on their part. I just can’t. You might play that game in negotiations between the executive branch and congress, but not in court. Playing games like that is no way to build up “respect for the legal process.”

        • Mary says:

          Not far short of half your country still supports torture

          It’s a number that has actually GROWN with Obama’s passive-aggressive support for torture. That’s the price he’s paying for what he’s buying.

        • Mary says:

          yep – I don’t know the case history, but damn, they had three or more Asst USAttys all blubbing out “I don’t always lie, so don’t get mad at me when I do” kind of responses. I especially like the one where they argue that his testimony is more consistent with the truth than inconsistent with the truth – reminded me of the arguments about how we had got LOTS of intel from the torture — lots and lots of intel, we could write lots of reports from it.

        • Nell says:

          Not far short of half your country still supports torture.

          As Mary says, this has a lot to do with the cowardice with which Obama has approached the discussion of torture — the smearing of the majority of current Guantanamo prisoners as too dangerous to release (in his first national TV interview after becoming president to an audience of multi-millions pre-Super Bowl), the illegitimate taking of CIA prosecutions off the table, and more.

        • Mary says:

          I don’t think MD @ 17 was being anything but facetious about the 11 dimensional chess game, but I absolutely agree with bmaz that it’s delusional to tie Obama’s actions to any kind of underlying strategy to accomplish something other than what Bush sought to accomplish – I guess you could argue that really Bush, too, was really just trying to make someone stop the CIA indirectly, but being able to say the words doesn’t put them on a firm foundation.

          When you say “this is exactly what you would do” it makes it ez to say, but if you have to detail what the “this” is that he’s doing, the boat won’t float.

          I’ll also tell you IMO what he has accomplished that has been horrific. Through a lack of leadership as all of this has come out, he has managed to start shifting the numbers away from support for investigations or a prosecutor. It’s bad enough what Bush did – but now Obama is playing the judas goat, leading the nation to a very bad place on where it will stand in the world on torture.

          It’s largely bc, IMO, the story – the framing, has been about KSM. Not about Arar, el-Masri, the WH knowledge of the many innocent people at GITMO, the disappearance of children, the Jamadi killing and the body dumping into an unmarked grave of a torture victim frozen to death, etc. Kids sent to buy tomatos treated as al-Qaeda financiers – London souffle makers treated as Al-Qaeda “Generals” and a man held because his friend blew himself up in a suicide bombing (except that his friend is still alive and never left Germany and had nothing to do with a suicide bombing, but none of that could be addressed while all the “evidence” was “secret” and there was no legal participation.

          In any event, look at what happened with the el-Masri case and then say that Obama is playing 11 dimensional chess.

        • chetnolian says:

          “I guess you could argue that really Bush, too, was really just trying to make someone stop the CIA indirectly”.

          Trust me, I don’t.

        • Mary says:

          I know, you don’t. But to argue that Obama is making arguments in court so they will fail (and btw, he is a lawyer and knows all about obstruction and frivolous arguments) just doesn’t work. He’s hoping this will all just go away and that’s his end game. Draw it out, talk about other things, don’t use torture, see if you can cut some under the table deals with foreign nations, and just keep reasserting Presidential powers, but as a kinder, gentler Imperialist. Until there is so little public support that it all goes away, one way or another.

          That’s what I resent the most. It’s what I hated about DOJ. They really set the standard for the nation. Especially after Watergate, the naional consciousness is tied to the DOJ being in large part the national conscience. If they say move along, and the President says move along, then people in the US are hardwired to go with that. After all, if we had disappeared children and kidnapped for torture a German with the wrong name and put a Mayfair chef in isolation for years and years on a clearly trumped up charge – if we had engaged in years of human experimenation at GITMO and in black sites —- people just do not believe that the Dept of Justice would do nothing. They just don’t. They don’t believe that Obama would do nothing. But because the only leadership has been to frame the issue as saving the world from KSM and to engage in coverups and lies, the nation as a whole is going to a horrible place. One where over50% of the people in this nation don’t even want to have an investigation of clear, unequivocal torture and of policies that make the world hate us.

          They make us ineligible for forgiveness, from man or God, and they do it so carelessly and with such self interest.

        • chetnolian says:

          See 84 and I don’t see getting a clear ruling on something this impotrtant as being either frivolous or obstructive. I thought the 9th Circuit took the point seriously, analysed it and decided it was wrong. That seems legally fine to me.

        • Nell says:

          Mary can speak for herself, but I didn’t take her to be saying that the 9th Circuit judges as the frivolous or obstructive ones; that’s the Obama DoJ — frivolous if they’re playing around with a position they don’t believe in, obstructive if they do believe in it.

        • MadDog says:

          I don’t think MD @ 17 was being anything but facetious about the 11 dimensional chess game, but I absolutely agree with bmaz that it’s delusional to tie Obama’s actions to any kind of underlying strategy to accomplish something other than what Bush sought to accomplish…

          Facetious was I, and I didn’t think that bmaz thought I was actually hopping on that “Hope” bandwagon, but both you and he deserve applause for making the “no 11 dimensional chess nonsense here” points short and sweet!

  11. KiwiJackson says:

    We’ve got a funding challenge of sorts for several things going at my current work This one won out, and well so.

    Go on and on at this site, bmaz and emptywheel.

  12. emerson says:

    bmaz,

    can you tell me (in laymans terms) why the panel did not shoot down the state secrets argument, and why “the time was not ripe for it?”

  13. Aeon says:

    IIRC, Michael Hayden submitted an affidavit in this case which declared that the treatment of detainees in the rendition program was too secret to publicly reveal.

    The release of the OLC memos kinda mooted that point.

    • Aeon says:

      Yep, from the decision:

      Then-director of the
      CIA, General Michael Hayden, filed two declarations in support
      of the motion to dismiss, one classified, the other
      redacted and unclassified. The public declaration asserts that
      “[d]isclosure of the information covered by this privilege
      assertion reasonably could be expected to cause serious—and
      in some instances, exceptionally grave—damage to the
      national security of the United States and, therefore, the information
      should be excluded from any use in this case.”

      and

      See also Unclassified Hayden Decl. (because “[d]isclosure of
      the information covered by this privilege assertion reasonably
      could be expected to” harm national security, “the information
      should be excluded from any use in this case” (emphasis
      added)). We reject this argument because it misconstrues the
      object of the state secrets doctrine within the Reynolds
      framework—Reynolds applies to evidence, not information.

    • posaune says:

      And, in response, the NFL issued a statement against executive privilege. Who woulda thought?

  16. Waccamaw says:

    Please forgive the o/t but does anyone know whether a vote was taken on Sebelius? Given the news level today, that one’s likely to be buried.

    Oh, and btw…..the bank balance is looking bearable for the end of the month so there’s another check for $183. with Marcy’s name attached to it heading in the direction of the Lake tomorrow.

  17. Nell says:

    “The time is not ripe” means: you can’t assert the privilege in a blanket way to get the case dismissed, you have to assert it with respect to particular pieces of evidence as they are considered.

    To all who assert that the Obama DoJ is arguing a position they don’t believe in, in order to get courts to do something they themselves should be doing but are unwilling to take the political heat on:

    1. Name one instance where an administration has done this — taken a position in the federal courts that it hopes to lose.

    2. If they were doing this, it’s incredibly risky. What if the admin position won? I don’t appreciate having our rights gambled with in this way. Tthey have asserted and plan to assert state secrets privilege in the broad, abusive way in at least 20 cases, with only one case (unspecified) in which they might revise the position. These cases are in a broad variety of districts, most not nearly as likely to rule against the government position as the Ninth. The Ninth, in this ruling, is the first federal court to rule against this broad assertion of state secrets privilege seeking to dismiss the whole case.

    3. If this is what they are doing, it’s incredibly cowardly in addition to unjustifiably risky. It’s not what leaders do, and there’s nothing admirable about it.

    If the Obama administration fails to appeal this ruling, it will not be firm evidence that they were using the ‘hoping to lose’ approach. If they do appeal, it will be incontrovertible evidence that they mean what they say. I care more about the rule of law and accountability than I do about winning an argument, so I hope to hell the govt does not appeal this ruling.

  18. perris says:

    I’m not a lawyer so tell me if my interpretation is right here;

    On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

    doesn’t that mean if priviledged information is determined AND it’s important to the defense the case is dismissed?

    if so the government will almost always find a method to make it available

    doesn’t it also mean that if the government needs the information to make it’s case it therefore can’t make it’s case though it can try but success isn’t likely and the government will likely loose?

    in that case they’ll try to find a method for making the information available as well

    I see this as no win for the government

  19. WilliamOckham says:

    Here’s my favorite bit. A court finally officially noticed that the Reynolds case (the basis for state secrets) was total B.S.

    Even in Reynolds, avoidance of embarrassment—not preservation of
    state secrets—appears to have motivated the Executive’s invocation of the
    privilege. There the Court credited the government’s assertion that “this
    accident occurred to a military plane which had gone aloft to test secret
    electronic equipment,” and that “there was a reasonable danger that the
    accident investigation report would contain references to the secret electronic
    equipment which was the primary concern of the mission.” 345 U.S.
    at 10. In 1996, however, the “secret” accident report involved in that case
    was declassified. A review of the report revealed, not “details of any secret
    project the plane was involved in,” but “[i]nstead, . . . a horror story of
    incompetence, bungling, and tragic error.” Garry Wills, Why the Government
    Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts
    should be concerned to prevent a concentration of unchecked power that
    would permit such abuses.

    • Mary says:

      It’s nice to see that – as if there is some acknowledgement of the real world aspects. I guess it would have been too lengthy an appendix to also mention how hard it is to rely on administration affidavits and DOJ filings anymore too, what with years now of Fed Dist Ct and FISCt Judges being blatantly lied to by DOJ lawyers who treated the court like a pot for pissing.

      In any event, putting that in the opinion gives something for the news stories (the court pointed out that prior assertions of state secrets by the Executive branch had been found to have been used merely to avoid embarssment and liability rather than to protect national security – kind of bytes)

      You do have to wonder, too, if some of the impetus isn’t that other investigations are proceeding, other courts are going to be involved, and some Judges here in the states might be embarassed themselves to be a part of a cover up of international torture rings operated out of the WH.

      • Peterr says:

        I think you are right about judges worried about how they look. One of my favorite parts was this:

        At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves ‘allegations’ about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

        [9] We reject this interpretation of the “very subject matter” concept, not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and the Executive’s constitutional duty “to preserve the national security,” United States v. Valenzuela-Bernal, 458 U.S. 858, 880 (1982). We simply need not place the “coequal branches of the Government” on an all-or-nothing “collision course.” Cheney, 542 U.S. at 389.

        Ah, Marbury v Madison. Then they add in this:

        Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 4938 MOHAMED v. JEPPESEN DATAPLAN U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131- 33 (1765)) (emphasis added). Thus it was “ ‘the central judgment of the Framers of the Constitution’ ” that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (quoting Mistretta v. United States, 488 U.S. 361, 380 (1989)).

        Citing Scalia’s dissents to bolster their opinion is a nice touch. The overall tone is saying to the executive branch, “We (the courts) decide what the law is, not you.”

        • Mary says:

          Gosh, a case by US citizens instead of foreign nationals, involving secret activities on US soil… wonder what they could be talking about. *g*

    • phred says:

      That’s a particularly encouraging bit. Is the 9th opening a chink in the Reynolds armor by practically inviting someone to bring a case that could revisit the Reynolds precedent?

      • bmaz says:

        In a subtle way, they just did; at least as to the overreaching amped up interpretation of Reynolds that Bush and Obama have been putting forth. This case is now set up for exactly what you ask about should it hit the Supremes.

        • phred says:

          Oh, I was hoping you would say that : ) I’m so pleased I could pop…

          I know the chattering class will obsess over Specter and the flu, but this is the really big news of the day! Yippee!

  20. Mary says:

    So when do we get around to the OLC opinions to Boeing (hello Judge Luttig) authorizing participation in the torture program as being legal and free from torture conspiracy issues?

    After the telecom amnesty it’s easy to forget, but the OLC is actually not allowed to give legal advice to private persons.

    http://www.usdoj.gov/olc/

    See the last line.

    Not, of course, that all of Congress can’t and won’t run around talking about Boeing’s good faith reliance on torture taxi opinions. Their torture tax drivers in the end made out much better than Afghanistan’s tortured taxi driver, Dilawar.

    • john in sacramento says:

      So when do we get around to the OLC opinions to Boeing (hello Judge Luttig) authorizing participation in the torture program as being legal and free from torture conspiracy issues?

      Ding ding, ding

      I had completely forgotten about him. I smell a there there. Don’t know what, but …

      “What a tangled web we weave”

  21. bgrothus says:

    It seems to me that this ruling gives the Administration cover. I don’t know if they should have acted like a senior partner and said, “We are withdrawing from these cases on principle.” I think the ruling gives more opportunities for the media to have to explain the laws to the public, who do not follow these things closely and supports torture, as far as we can tell from the polls.

    The Rove talking points go out, the media interviews people who do everything possible to support the talking points. There is virtually no other perspective aired.

    The more information that comes out, the more the courts refuse this tack, the better to shut it down.

    But IANAL.

    • Mary says:

      The thing is, they weren’t “in” the cases to be withdrawing from them

      “We are withdrawing from these cases on principle.”

      Instead, they were intervening in a civil case between two other parties, the torture victims and Jeppeson. They intervened to try to have the court throw out the case against Jeppeson because of their “third party” interest and told the court that it would damage our national security to allow Mohamed et al to sue Jeppeson. It wasn’t a matter of withdrawing, it was a matter of not intervening to try to improperly shut the case down.

      The way Obama is dragging employing DOJ to delay and hinder lawsuits, it maybe be 6 or more years before there is any real progress on them, even if the plaintiffs win every round.

  22. WilliamOckham says:

    OT, but I can’t help this little “I told you so”. Last week, I commented on the Harman story by saying:

    I guess it’s my week to be oppositional. I’m not buying this construction:

    [Court approved][NSA] wiretap [inside US] of the target of an [FBI] investigation.

    One of the items in the brackets has to be false. We know the [FBI] part is true. If the target was inside the U.S., the FBI is perfectly capable of getting the FISA order (and incredibly unlikely to allow the NSA to get involved in an active criminal investigation). If the target went outside the U.S., then maybe they would have called in the NSA.

    Yesterday, Dennis Blair (DNI) says:

    The National Security Agency did not place a wiretap that reportedly intercepted phone conversations made by Rep. Jane Harman, D-Calif., the top U.S. intelligence official said Monday.

    Dennis Blair, the national intelligence director, declined to say which agency requested the reported wiretap and oversaw the information gleaned from Harman’s conversations. Blair was speaking at the dedication of a new intelligence research facility.

    Now the question is why did Jeff Stein’s sources lie to him.

    • klynn says:

      I was with you on your Harman point last week. And I am still with you after D. Blair’s comment.

      Now the question is why did Jeff Stein’s sources lie to him.

      And I might add, not only did his sources lie to him, but they were behind the interesting timing of the story going to print as well.

  23. Peterr says:

    There’s also a good dash of healthy common sense:

    It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.

    Common sense confirms this conclusion. The government could not seriously argue, for example, that the Pentagon Papers remained “secret” and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise “officially disclose” the content of the papers. See New York Times Co. v. United States, 403 U.S. 713 (1971).

    IIRC, the Bush Administration did put forward exactly the argument the 9th Circuit says that no one could “seriously” make. I don’t recall the case, though — or it could have been Cheney on a Sunday talk show. Anyone else remember this?

  24. emptywheel says:

    Oh hi.

    You guys been here drinking the liquor all day?

    Secret expedition–will write about it on Friday or Monday, aftter I get another deadline or two out of the way. A hint though: it’s automotive and pretty exciting.

    I’m going to catch up and then work on my primary deadline.

    • klynn says:

      You big tease!

      But after your efforts, as well as working with Jane on an FDL action against Chase, I guess you are allowed.

      I just hope all our efforts here for the auto industry have made an impact. There have not been many blogs leading the way on the auto industry+economy concerns.

      On a personal note…I have been thankful for a forum to contribute to in small ways on the matter of the auto industry and the economy.

    • phred says:

      Oooo, is it flying cars like the Jetson’s??? I’ve always wanted one of those… ; )

      Ok, back to your regularly scheduled serious thread… (did someone mention drinking the liquor all day? ; )

        • phred says:

          Holy crap bmaz, that looks legit. That’s it. I’m quittin’ the day job and hanging out a shingle as a psychic ; )

          And then I’m gonna scrounge up a cool 800k and get me one ; )

        • phred says:

          Amazing. If they ever finish the Star Trek version, can I get one painted like a Romulan Bird of Prey? ; ) Hmmm, I wonder what the cloaking device and phaser options would add to the base sticker price? ; )

        • bmaz says:

          Methinks you are enamored of that one; this is not the first time I have seen that posted here (or was that someone else?). Yes, there is a Dancing Marta in every rumbleseat!

          By the way, my understanding is that a convertible version of the Camaro is expected for 2011 sometime. The Camaro is gorgeous outside; however, from what I have seen, the interior is simply atrocious, a retro abomination. And that is disappointing because most all recent new models of GM cars have very good interiors.

        • emptywheel says:

          Nah, the interior wasn’t bad. I think it’s what a muscle car is supposed to look like. I couldn’t see very well. But it made pretty noises.

        • phred says:

          You’re hilarious — not to mention in a rut (oooo, an unintended but possibly appropriate pun ; ) No, Petro, that’s not an option, but if you go to the next Flying Auto Show, you should be in luck ; )

        • behindthefall says:

          Google dredges up a lot of stuff about a Russian businessman approaching Moller International to make a flying car out of a Ferrari and, in late 2008, projecting 2 years to takeoff. A one-off, money-is-no-object bauble. But WHAT a bauble!

          (I love the touch of making it a hybrid. Land/air:gas/electric.)

        • phred says:

          You realize that Air Traffic Control (not to mention the State Police) are gonna have a seizure…

        • JohnJ says:

          Sorry, but unless it’s got a Flux Capacitor that car shown ain’t gonna fly. (But the canard is a nice touch).

          We finally disagree about something…can we get a muscle car trash talk thread goin’ here?

  25. mesquite says:

    On Obama and 11D chess- I am disappointed in Obama’s DOJ. They are doing many rotten actions. However- there do seem to be limits as to how low they go; when pressed hard enough by the courts, they have been acceptably responsive.

    Politically, it is much easier for Obama to continue the Bush legal processes. Of course Bush DOJ was antidemocratic and anti-Democrat, but the Beltway fully supported it and Obama is going to have a much easier time if he only ends the 2nd part (BTW, ain’t it time to give Siegelman’s case a new hearing?) I think it reasonable to assume he is continuing the Bush approach more out of political expediency than out of personal beliefs; I agree with those who say he deserves little credit on this front. At the same time I think he probably doesn’t mind losing a bunch of these arguments. The evidence here is that rather than appeal every last decision as far as it can go, he has at least given in to declassifying some of the torture documents.

    We should all recognize the political and media pressures on Obama. He doesn’t deserve deep credit, but there is at least progress on various fronts and at least he has not shown extreme resistance to change. Successes may have been in spite of him, but IMHO he could have fought them harder and there really have been successes.

    In balance, I don’t especially like the situation, but I’m okay with the way things have played out and I’m not totally pissed at Obama. I’m willing to believe he made a calculation that continuing the Bush approach was politically easiest and he was fine with winning these cases, but I personally think his heart isn’t completely in it. And I suggest that some of the pursuing Bush doctrine may be Kabuki, as in- pursue it more firmly when he is more likely to lose. Regardless, stuff has gotten out, and the R’s can’t really rip him to shreds.

    I am much more concerned about his economic approach- there are no courts prodding him into doing the right thing, and his approach is to give trillions to the banksters. Total fail, and I’m plenty pissed there. Once again, political considerations are important, and it would help tremendously if Congress wasn’t completely in the banksters payroll. Even if his heart (and mind) was completely in the right place, he coludn’t fix things all on his own. So some Kabuki is called for, but he has already shot (our) wad to the tune of trillions, and let the banksters completely run the show.

    • bmaz says:

      You know, that is fairly well said, and I can agree with that for the most part. I really like Obama but for the fairly egregious positions he has taken on privacy and torture issues; but those areas of the law really impinge on so much that is fundamental that they are impossible to overlook.

      • randiego says:

        You know, that is fairly well said, and I can agree with that for the most part. I really like Obama but for the fairly egregious positions he has taken on privacy and torture issues; but those areas of the law really impinge on so much that is fundamental that they are impossible to overlook.

        Hear, hear. The continued obfuscation on State Secrets is maddening/confusing, and Mary’s (and yours) scathing criticisms are right on point. The rule of law and the Constitution are the breathing heart of who we are.

        But there is much to be optimistic about. I see Obama doing little things that cost him the daily/weekly news cycle but are the right thing to do… that tells me he isn’t obsessed with it like Bush AND Clinton, and that the nation will benefit from that small thing.

        We spent 8 years in the 11th circle of hell, and now we have the wind at our backs and we’re in clear air. I feel strongly that fear and smear isn’t working anymore, and that rational policymaking can’t be far behind… I’m optimistic about many things. Look where we’ve come since November!

  28. Peterr says:

    Replying to Marcy @ 59

    it’s automotive and pretty exciting

    Having a sense of what Marcy finds “pretty exciting” from years of reading her posts, I’d say whatever it is involved lots of reading; multiple timelines; will end up making someone like Karl Rove, Dick Cheney, or Rahm Emanuel look very very silly; and will make many in the TradMed look like slackers for not noticing what was going on under their very noses.

    I can’t wait.

    There are many, however, who might consider the wait to be torture. They’ll be the ones asking themselves, “What does she know? Is it me? Please, don’t let it be me. Maybe I should call my PR person, and prepare for the exposure of some bad news.”

    I love it when Marcy makes folks nervous. Don’t you?

  29. TarheelDem says:

    The courts clarify Bush arrogance in a way that dropping the cases or moderating the Bush arguments would not.

    Obama has kept his political capital so far by allowing others to force him to make the right decision; this counters the expected wingnut outrage and sidesteps Congressional meddling.

    At least that’s how it seems to me. It’s smart politics, but I would not indulge in the hyperbole of 11-D chess. It’s really pretty straightforward.

    • bmaz says:

      This is just pure bunk. Obama isn’t being “forced to make the right decision” he is having his ass kicked and humiliated by an incredulous judiciary. The prevalence of this tripe that it is some brilliant plan and the right thing is simply disgusting and depressing.

      • brownrecluse says:

        Whose ass is getting kicked?

        This is a Bush DOJ case from the old days. The appeal is from a truly egregious decision of the trial court in favor of the Bush DOJ. Additional gravitas is given to the Appeal Court’s decision with an active case by the Obama DOJ. The end result is precedent that Obama’s DOJ can now apply to all cases of this nature.

        Why is this not a huge win for those who have railed against the Bush DOJ?

        • bmaz says:

          The “truly egregious decision of the trial court” you refer to was issued based on arguments made by the Bush DOJ; arguments that Obama has not only adopted, but upped the ante on, since he took office. Obama, in the Mohamed v. Jeppesen case, stands in every bit the filthy shoes of Bush. So, yes, he got his ass kicked, and deservedly so; it was an egregious position he staked out and fought rabidly for.

  31. Peterr says:

    But because the only leadership has been to frame the issue as saving the world from KSM and to engage in coverups and lies, the nation as a whole is going to a horrible place. One where over 50% of the people in this nation don’t even want to have an investigation of clear, unequivocal torture and of policies that make the world hate us.

    Well said, Mary!

    (Those “policies that make the world hate us” will not do much for adding to our national safety, either. OTOH, I hear they do wonders for al Qaeda’s recruiting.)

  32. klynn says:

    Hey, on an exciting note irt the auto industry, it’s cool to read about the Camaro joining the “muscle car” competition with the Dodge Challenger and the Ford Mustang

    and…

    that the Corvette Grand Sport, after 14 years, will make a come back in 2010. Ooo, and even a convertable version…

    Smart, smart moves.

      • klynn says:

        Hold on one minute…11 dimensional chess, Star Trek, and flying cars?

        Umm, is this really EW’s spot?

        Wait,it is! It is EW’s! (Hello!)

        I guessed when I read autobot blog earlier this afternoon. Almost put up an Oxdown after reading about it and the Corvette. Glad I didn’t b/c you’ll KA on it!

        Now, are you trying to coordinate your post to go up with the major GM reorganization announcements coming on Friday or Monday?

        Did you read about Nissan America?

        • emptywheel says:

          No, mostly it’s a matter of getting through a deadline.

          I’ll probably post pix and stuff on Friday or Monday.

          Mine will be more of a policy post, not an autoblog post.

          And remember–you only got partial credit.

          ;-p

        • klynn says:

          Hey,
          Partial credit? You just made my day!

          I’ll look forward to the policy portion of your post.

      • randiego says:

        29mpg? On what planet? Color me skeptical… maybe we got bad gas out here in California or something. My Golf is still getting 23, and the Versa is getting 28.

  33. JTMinIA says:

    I was agnostic on the 11-D chess theory until BO did two things within a few days: (1) “don’t go after the low-level torturers” and (2) “the decision as to what to do about the enablers is up to Holder.”

    I’m sorry, but if it’s up to Holder to deal with the latter, then it’s up to Holder to deal with the former. You don’t like prosecutions of the “low-level” guys, then pardon them. Otherwise, STFU (to be blunt).

    With that said, I don’t think that BO is really endorsing the unitary exec nonsense by fighting these cases. I just think he’d rather that all of the evilness doesn’t come out at once. I think he thinks it will tear the country apart. I think he understands cognitive dissonance better than most non-psychologists, as evidenced by his “cling to their religion and guns” comment (which was impolitic, but highly accurate). I think he worries – as do I – that there are people in this country that will start killing sprees rather than face the fact that we were completely lied into invading the wrong country, that we tortured people for political reasons (as opposed to national defense), that we killed some of them who happened to be totally innocent, that we just plain made up shit to justify locking people up, etc, etc. In other words, he worries – as do I – that a measurable number of people will totally lose it when faced with what the gov’t has been doing.

    It will take years (if it is ever possible) for many people to face the things that Mary, for example, says so bluntly. If you “flood” them, they will snap. So some resisting of exposure must be done. In short, I see it as 3- or, maybe, 4-D chess. And, if that’s the correct reading, then I agree with it.

    • chetnolian says:

      The second part of your post fairly well chimes with my take on what is happening. It isn’t very admirable but it may be smart.

    • JohnJ says:

      It may not be a popular opinion, I pretty much have thought this from the beginning myself.

      As to why 50% of this country thinks torture is acceptable; way too many movies and too much TV.

      Example: how many people think you can “safely” knock someone unconscious? We have see it as a simple (and cheap) writers device used almost daily on TV, but the reality? On detective shows I have even seen where friends knock friends out, just to keep them safe!!

      My favorite new device is the head to head butt that somehow only hurts the target, I think that is a little joke by the writers on the idiot public. Go right ahead and try it dumbass!!

      We Americans can really be the stupidest people on the planet; just show us something on TV enough….

      Why do ya think the big dick Faux TV has “24″?

  34. klynn says:

    bmaz @ 89

    Great. I mention the Corvette and Camaro, and what does bmaz do? Links to this ultra-sexy-future-flying-Ferrari.

    Really, who can compete with Chitty-Chitty-Bang-Bang? Huh bmaz?

  35. emerson says:

    http://glenngreenwald.blogspot…..ew-of.html

    Specter has always been among the most duplicitous politicians for me. He will start off spouting the indignities of the topic of the moment, but invariably fails to follow that seeming passion through to action. The “I have serious reservations about” stance always morphing into the “but I cannot in good conscience vote against
    this piece of legislation.”

    Linked above is a Greenwald take from the Dark(er)Ages.

  36. Mary says:

    Geez louise – and as he was having his OLC spit out memos that gave a plethora of reasons why, “I was just following orders” would count as the excuse.

    That needs to be played over and over.

  38. bmaz says:

    Hold on one minute…11 dimensional chess, Star Trek, and flying cars?

    Umm, is this really EW’s spot?

    It’s always a little dicey with me around you know…..

  39. bmaz says:

    Mine will be more of a policy post, not an autoblog post

    I know an engineer who might be available. Don’t make me bring him in!

  40. earlofhuntingdon says:

    This is why Bush wanted more Jay Bybees on the 9th Circuit. It’s not sufficiently deferential to el Presidente as is the 4th Circuit.

  41. perris says:

    so let me ask something and believe me, I am NOT among those who believe obama is playing some master chess, I am posing a practical question;

    suppose obama oposed the bush position and did not defend those same positions

    I believe that would leave us open to those decisions being used and tried again in the future

    I think we’re far better off having a decision rendered before a judge rather then an administrative policy decision

    and mark my words here, when obama leaves office it wouldn’t take a genous to make that claim even if his intentions weren’t there

  42. perris says:

    thanx leen, I have to repost that link, must see teevee here

    http://informationclearinghous…..e22511.htm

    bush saying “it is no defense saying I was just following orders, war criminals will be prosecuted”, someone over at the lake posted the link, it’s excellant

    please get that up front page here and at the mother ship

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