9th Circuit: The Government Can Kidnap and Torture You and Then Hide It Under State Secrets
This–a decision in the Jeppesen Dataplan suit upholding the government’s invocation of state secrets–is really bad news.
This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.
So basically, the government can kidnap you and send you to be tortured–as they did with Binyam Mohamed–yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.
Update: The ACLU’s Ben Wizner on the decision:
This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.
So, what happened to the Constitution? I thought it was supposed to be our Prime Directive? Apparently, it has been cast aside as irrelevant.
So, this is the 9th Circuit(it would have been nice to mention that)?
And this is Binyam Mohamed et al. vs Jeppesen (Isn’t this one of the cases we’ve been waiting to hear about?)?
I hope this gets appealed. Then the Supremes can judge whether the Constitution is really a Dead Letter or not.
Bob in AZ
The Federation has always been a far far more enlightened organization than the United States. The question is how do we get from this lawless present to that enlightened future?
phred, I don’t see a way. We’re in the mirror universe for sure.
And me without my go go boots ; )
According to Commander Guy, it’s just a goddamned piece of paper, I believe.
P.S.: The Obama Admin. took the Bushco line, that letting the case go forward would compromise “state secrets.” Ummn, why am I supposed to vote for the Dems again?
This being the 9th, and reading the decision, I’m going to assume there really is legit government secret or secrets at stake as opposed to simply trying to hide illegal conduct.
We’ll need to change the law if we want to fix that ruling.
Boxturtle (Not seeing anybody in office with any interest in doing that)
Jerry Nadler wants to fix the law. Patrick Leahy used to, before Obama became President and told Leahy to stop thinking for himself.
Unfortunately, none of the cool kids sit next to Nadler in the lunch room.
There is no way to Congressionally “fix the law” that is being judge made on states secrets. They are establishing the boundaries of the Exec’s powers and Congress doesn’t have an effective avenue to address that – if it had the will. Instead, they done what Vaugh did – and Pilate for that matter. They’ve said – it’s out of our hands, but the
PhariseesCongress could still make it right, if IT wanted to – they basically are divying up the responsibility the way the torture program midwives did torture. Everyone can point to someone else as bearing the responsiblity.I don’t know about that at all. I think much of the Mohamed stuff is out; the Brits kind of proved how hollow the US position was. The only secret being protected at this point is keeping the public from seeing court decisions ruling the US government to be a criminal enterprise.
All the secrets are out? Don’t you believe it.
Binyam Mohamed, for instance, said he was drugged. That’s not out in the British material, which was a summary anyway, and not the actual documents.
Did you know that the DoD IG report on drugging of detainees (solicited in 2008 by Sens. Biden, Levin, and Hagel) has been “out” for a year, but no one knows what’s in it? It’s entitled “Investigation of Allegations of the Use of Mind-Altering Drugs to Facilitate Interrogations of Detainees” and was released on 9/23/09. I’ve sent off for my FOIA copy, if one can even obtain it, and would write on it, if I get it.
I can also tell you that there’s much more that isn’t “out”. For instance, what if I told you that there is a Clinton-era DoD memorandum (not Clinton’s 1997 memorandum) that covers use of human subjects in classified experiments, but no one has ever heard of it? Or knows that what’s in it changed dramatically under Bush Jr. I have the document, and it will be discussed as part of a big investigatory story Jason Leopold and I are doing on the torture and human experimentation scandals.
On the other hand — and this to Box Turtle @2 — no state secret, or protection of same, can be used to justify hiding the torture involved.
None of what you cite, even if worthy of keeping classified (it is not) would be sufficient to prevent litigation of the complaint. The base facts necessary for litigation are pretty much out in the ether in one form or another.
Oh, I agree with you on these points. I was only speaking to your comment that all the secrets were pretty much known. Perhaps I misunderstood you.
I don’t know that. I find it very easy to believe that the government has secrets that deserve protection and that they would be exposed if the case went to trial. I don’t feel the govenment should be able to hide criminal acts behind state ecrets, but that’s what the law says.
Boxturtle (Which is why I say change the law)
That is most certainly NOT what the law says; it is simply what has been allowed through spinelessness and dishonesty and fraud by the Executive Branch. And the thought that the government has secrets that could not be protected if this case went to trial is absurd. There are very few areas that could possibly be so sensitive at this point, and those could be handled through a CIPA like process and via stipulation. This just does not hold water and there has been no credible showing that could support such an assertion.
“Spinelessness” presumably on the court’s part?
And “dishonesty and fraud” from the Executive branch.
Taken together, among friends and other deferential “interests”, seems but a small step to protecting individual people, not the “government” itself. In essence the law has stooped to politics of the worst and most destructive sort, among elites and for elites …
It is not “embarrassment” of the “government” which is at stake, but the “judgment” of specific individuals and the behaviors of specific individuals that is being “protected”.
After all, it is the people of America who are being “protected” … protected, that is “kept” from knowing the truth, even if the rest of the world already knows that truth.
What, given what we have witnessed ourselves, can possibly, in this world, be held as worthy of being kept “secret” to “protect” this American government in its obscene and terrorist assault upon humanity and reason?
While we are on “such” topics, how may a legal system which condones and legitimizes such “assault” be respected? Will this all go away, or will the law be drawn ever deeper into the morass?
What do you think?
DW
TheLaw = Statutes + Case Law. The judges have interpreted the law in the manner above and we both know the current supreme’s aren’t going to overturn ths. Like it or not, it is the law now. We need to change it via legislation.
Boxturtle (Take heart, Remember, Dred Scott was once the law of the land)
Well actually the classification provisions themselves forbid it.
You’re correct. We need to change the law and the classification provisions such that they can’t be used to hide criminal conduct.
Boxturtle (Presuming, of course, that congress has the needed clearances to view the classification provisions)
They already state that, that is my point. The problem is the courts do not engage in sufficient examination or verification of the bullshit statements the government makes to them. In short what you say needs to be done is already pretty much there (could be stronger I will agree), the problem is there is no penalty for the government lying about it.
Perhaps the most significant “fatal flaw” might be that the courts cannot imagine that the “government” would lie … ever, and especially not to the court?
Why can the court not arouse itself to the merest of doubts?
How much deeper will the courts wade in? Allowing this to remain the “law”, is full and total support of the end … of the rule of law.
Too many legal minds cannot grasp this simple fact.
Apparently.?!
DW
Dred Scott took a constitutional amendment. If, by change the law, you mean a constitutional amendment then I think you could change “the law” on this issue; but absent that, this case law is saying what the Executive can do on an unassailable basis, iow, it’s based on exclusive rights in the Exec that wouldn’t typically be something you could legislate around.
One thing the opinion did say was that classification per se was no bar to the judicial review and that the court would look behind classification – it severed classified from the state secrets privileges. But then it went waga waga, saying that the gov argued there were four areas of state secrets application and then saying, um “It’s A Secret” which one we agree with and are basing our opinion on.
Seriously.
Secret law, much?
Heh, yes, but then, as you eloquently note, they went waga waga waga and merged the whole kit n kaboodle; so there went that. What a pile of dung.
“… a pile of dung.”
An apt description, bmaz, yet… it is now the law.
What nature of beast doth make such a pile? Why would it do so?
This is the culmination of, seemingly, unassailable juris prudence, a decision of the wisest of the wise, barring the doubtful interest of the supremest of the wise … this is, or should be, the American legal system’s finest hour, this is a decision of moment, of the greatest moment, yet it shall be treated as but a mere ripple, an unremarkable eddy in the current rush to executive supremacy, of the conflation of a mere office with the essence of the nation itself.
This is rather dangerous stuff the court is trifling with, is it not?
Perhaps this (revolting) “development” will, at long last, disquiet the long silence of the American legal profession, at large?
One wonders.
DW
You may be right about that (though it seems to this non-lawyer a terrible decision). But Congress has proven itself totally beholden to the militarists who are now in charge. Why would the critters who enshrined major changes to Geneva, gutted their own earlier War Crimes Act, enforces the eviscerating reservations to the CAT treaty ever now change this state secrets law. For every Nadler there are two, four, maybe ten or more puppets in Congress.
We are in a pretty pickle.
Whatever happened to our former White Knight, Sheldon Whitehouse, who once seemed poised to rescue us? What is happening to the re-election chances of Sen. Russ Feingold, one of the few voices left for sanity in government? Fortunately, we still have Dennis Kucinich with us, but the MSM treat him as a crank and a misfit.
Bob in AZ
And need I remind everyone here that Congressional committees were complicit in the treaty-breaking refoulement of Abdul Aziz Naji on July 20 of this year, having been notified two week in advance of the illegal move of this Guantanamo prisoner.
Our Constitution is based on a series of acceptable risks: The risk that a jury will refuse to convict someone who is guilty (e.g., Simpson’s original trial), or that prosecutors will decide not to prosecute people who have committed war crimes (DOJ, massively), or the risk that prisoners, after incarceration, who are set free, may commit additional and perhaps even worse crimes. The founders accepted such risks because on the whole, justice can never be absolutely certain without sacrificing personal liberties.
But now, it seems, we cannot tolerate risk of any kind. We have become so risk-averse that we have become scared out of our wits and have become senseless. That attitude is a boomerang, which may go out of sight for a while, but can swoop back with deadly effect when we’re not expecting it.
Bob in AZ
You may be right abot risks, but this has nothing to do with risks. It has everything to do with preventing our government from being embarassed and with preventing the entities that assisted us from being embarased and maybe not helping us anymore.
The fact that the government has managed to gin up enough national security exposure to convince the 9th doesn’t change the basic underhandedness of the scheme.
Boxturtle (Don’t like what ObamaCo has done in the courts. You can tell him I said so)
I think not. I think what the courts have been sold, over and over, is that there are going to be very bad and possibly very dire elements of fallout vis a vis our foreign torture partners. The stories don’t come out on this without acknowledging our use of despotic or quasi-gov interests in Morocco, Egypt, Syria (where we supposedly didn’t even have relationships, possibly Israel, Thailand, Poland, Romania, Italy etc. to assist in torture. You have guys who did NOT have official sanction and cover in their countries who helped us torture and you have teetery governments that could have huge fallout from a wide broadcasting of their roles in torture and you have US bases and embassies and
assassination squadsdiplomats operating in those countries who will be targets (but are now as well). You may have blackmail pressure points the US used to get cooperation as well – you may have illegal payments to a gov or persons within that gov etc. – all of which could create danger to those who assisted us in our torture and to Americans by virtue of their being Americans which could be equivalent after disclosures in some groups with being torture exporters or the same kind of “legitimate” targets as Khalid el-Masri.IOW, they are selling the Petraeus arguments on the Koran burning – – this info if it comes out will result in ant-American, anti-ally activity.
I’ve always argued that it is the foreign relation elements that gov is relying on most heavily bc it is the area the courts are going to be least likely to want to invovle themselves in and over.
This is why the arguments, imo, had to be much more fundamental as to the ability of the GOv to claim states secrets. I’ve thought that the attainder aspect has to be hit – that the absolute prohibition against the Exec, even with Congressional assists, being able to engage in targeting individuals and subjecting them to punishments and penalties without trial – prohibitions against attainder – similarly prohibit the Exec from claiming states secrets protections with respect to its usurpation of extraconstitutional powers.
Otherwise, Boumediene and the Bill of Rights and the Constitution itself mean nothing. If the Executive can merely hire a well connected foreigner (the revelation of whose identity could cause uproar) to execute people on political grounds – after using intel services to illegally easvedrop on them and after holding them without habeas in a black hole – then the Constitution literally means NOTHING.
If all it takes for the Executive to engage in acts of Attainder is to involve foreign nationals or “secret programs” and thereby be able to insulate completely unConstitutional behavior from review – things are very bassackwards. The US Exec either is, or is not, given the power of attainder. If not – then there is no state secrets privilege that attaches to the exercise of that power – it is not an act of state, it is an ultra vires violation of the COnstitution. Once a court grants the Executive the power to engage in punishments and penalties extrajudicially – as acts of attainder – under a “states secrets” out – it voids the pact that formed the nation.
IOW – you have the
(Just starting reading the comments so I’m behind)
Bmaz can correct me if I’m wrong, but, notsomuch
And I’m probably overexagerating, but the 9th isn’t so much an ironclad bastion of freedom as most people think it is. The only one I trust (fwiw) is Chief Judge Kozinski. He seems to be the only one who’s taking his oath to the constitution seriously. He’s written scathing — absolutely — scathing — dissents in the last couple years
PS was this a ruling by the entire panel, or was it one of the three judge panel rulings? And if so, who were the three?
Was an en banc panel of eleven judges. And Kozinski joined the majority on this pile of crap.
So, from the excerpt in the post, they based this on Reynold’s???
Awesome, I’m thinking they have been doing some research for a future upcoming Prop 19 trial by experimenting with some Maui Wowie (sp?) while they were at their conference in Hawaii, and this ruling is the result of the after affects (after effects?) /s
[And to orionATL @ 102]
I’ll forestall comment on the ominous substance of today’s grossly-irresponsible, justice-spurning decision, but I can provide some context for it:
1. The Mohamed, et al v. Jeppesen Dataplan, Inc. civil case was first heard (after being thrown out of district court in the name of national security before it could begin) in oral argument on appeal to a Ninth Circuit three-judge panel, on February 9, 2009. [I transcribed part of that argument in a comment at Glenn’s entitled Obama DOJ: Torture Victim Testimony Is A U.S. State Secret.]
2. On April 28, 2009, that three-judge appellate panel, made up of Mary M. Schroeder, William C. Canby, Jr. and Michael Daly Hawkins, unanimously overturned federal district Judge Ware (of Oregon, I believe, who had swallowed the Bush administration’s state secret claims whole and thrown the torture victims’ case out of court). The author of that compelling panel opinion was Michael Daly Hawkins.
3. The Obama administration appealed the three-judge panel’s decision, which had reinstated the civil case, to the en banc Ninth Circuit Court of Appeals, and was granted a rehearing. The oral argument in the rehearing took place on December 15, 2009. [I wrote some impressions of that argument in this comment at Glenn’s.]
4. Today, September 8, 2010, the eleven members of the en banc Ninth Circuit court finally issued their decision – one that their oral argument questions nine months ago certainly seem to have foreshadowed. Six judges decided to reverse the appellate panel decision of Hawkins/Schroeder/Canby, Jr., in an opinion authored by Raymond C. Fisher. They are:
Alex Kozinski, Chief Judge,
Raymond C. Fisher,
Richard C. Tallman,
Johnnie B. Rawlinson,
Consuelo M. Callahan and
Carlos T. Bea (author of a separate concurrence), Circuit Judges.
Dissenting were all three of the original panel members, Judge Sidney Thomas, and – surprisingly – Judge Richard Paez (who helped throw Brandon Mayfield’s case out of court in another contemptible example of Constitutional buck-passing – along with Johnnie Rawlinson, who, predictably, joined the majority here):
Michael Daly HAWKINS, Circuit Judge, dissented, joined by Judges Mary M. SCHROEDER, William C. CANBY, Sidney R. THOMAS, and Richard A. PAEZ, Circuit Judges.
5. For more on the government’s efforts to prevent this CIA-helpmate corporation from being held accountable for its actions, here’s Scott Horton, back in December, 2009, reacting to the second Ninth Circuit oral argument heard in this case:
The last graph cited of Horton’s shows him, unfortunately typically, to be recklessly exuberant. Yes, there are Republican appointees in the 9th, but it is no more “populated” nor are they more likely to “protect those who appointed them” than any other circuit. His insinuation is full of shit. By my recollection, there were only a couple of noisy judges and Rawlinson was one of them. Well, she as I stated above, is a Clinton nominee.
I give Horton credit for assuming in that piece that a reversal remained very much a possibility (even if for the wrong reasons), while others at the time, as I recall, seemed confident that the judges chosen were a lock for upholding the panel decision (a confidence that you castigated at the time, I believe – rightly so, as it turns out).
Regarding “noisy” judges in the December oral argument, Rawlinson doesn’t register prominently in my recollection, but I do remember in particular Kozinski (unfavorably – he shed heat, not light), and (I believe) Fisher (or whoever suggested the specious – though evidently discussed and prepared in advance – private bill alternative), in addition to Hawkins. So I agree that probably less than five of the eleven members of the court appeared actively engaged.
I knew Johnnie Rawlinson was a huge problem. That left Fisher and Kozinski as the best hopes for a majority on the right side of the equation. I held out hope and positive thoughts a little, but the merits looked a heck of a lot better than the numbers and logistics of the en banc panel did. I am still a tad shocked even given all that though; it bites when I see gunk like this out of the 9th. I also hoped Schroeder and Canby, who are pretty influential – make that used to be pretty influential I guess now – could be persuasive enough to carry the day. That clearly did not pan out either. Ugh.
What’s the test for States’ Secrets in this decision?
After all, we are in an age where our security agencies invent evidence and use it against us.
And, we torture to get false evidence as well. So how did the Ninth come up with a decision based on States’ Secrets?
That sucks!
It REALLY does.
Reluctantly conclude? Why are they reluctant? If they made a decision that upholds the law, why are they reluctant about their decision? What about their decision makes them reluctant?
(my bold)
After reading that ruling, it reads like:
“Ummmm, our nation is committing really bad acts. To reveal the depth of the bad actions would threaten our national security. Thus, we uphold the government’s invocation of states secrets to act evil and we realize our country is breaking international law.”
One of the interesting things about the decision is the way they skate around why they find this to be state secrets. My gut feel is that they DON’T buy the claim that it can’t be revealed whether or not Jeppesen participated in rendition, but that confirmation of Morocco’s involvement is regarded as too secret a secret.
Yeah, that’s my (purely guesswork) hunch here too: that the state secrets in question are related to the diplomatic leeway given to the President, and the court agrees with the White House that it’s far too dangerous to reveal in public which of our allies are allowing us to outsource torture.
Minor note: head of Poland’s Helsinki Foundation demanding prosecutor question Albert and Mike.
http://wyborcza.pl/1,75248,8349098,Bodnar__polscy_prokuratorzy_powinni_przesluchac_Alberta.html
It takes Adam Michnik to publish this? He’s getting old — who will do it then?
The decision gets pretty close to suggesting the Govt should give the plaintiffs reparations for their treatment:
Ugh, that is craven dicta if I ever saw it. What a bunch of crap. If these judges want to make themselves feel better for gutting the Constitution, they should go jerk off somewhere other than the pages of a written decision.
Thanks for putting it that way. I was very sorry to read EW’s original post and then absolutely outraged to read EW’s quote @ 12. But I find it hard to swear or call people jerks, so I’m grateful to you for doing it for me.
That section of the opinion read like someone who thought Marbury v Madison was wrongly decided. “The executive branch could help out poor Mr Marbury out of the goodness of its heart, or perhaps the Congress could pass a private bill to provide some restitution, or open an investigation on their own into the situation. Why bother with judges?”
Oh – they also point at the fact that while they are allowing the invocation of states secrets, the Executive in the interests of justice could just, you know, come clean on some of it and do something itself. The ultimate in buck passing.
@16 – agree with how lame the dissent is – pulls a few good quote (ignoring that Scalia, for example, much as I like his language in Hamdi and have used it before, was very clearly limiting his analysis to a US citizen on US soil) but doesn’t hit at substance.
@22 – yeah, funny how they managed to never mention that GOV lied in its invocations in Reynolds and the court let it.
@21 “Where is discussion of impropriety of using classification to hide criminal activity? ” No better dealt with than by the majority who pretty much just say – umm, we think we agree with Holder that the “purpose” of invoking isn’t to cover up US illegal behavior (again, imo, they are fixating on the foreign elements and providing gov with a gameplan for how to destroy the Constitution – just act in concert with foreign interests and then claim it would be a danger to nat sec interests to let on what the foreign interests did)
Their Totten analysis is super disturbing – it would say that if the Pres hired someone covertly to kill Americans in America for political reasons – it would still be an espionage contract that couldn’t be invoked by the family of the murdered – and that gets basically no attention in the dissent either.
One hopes that certain eyes might see this comment, bmaz, that such eyes may see, clearly, how those who possess them are fairly judged by another, in the “profession”, as lacking true, basic, and respectful discretion … as well as anything resembling valor, or conscience …
DW
Ha ha ha ha ha… The 9th Circuit wouldn’t know how to maintain our national security if all of our lives depended on it.
Hmmm… Come to think of it, our lives do depend on it. Pity we don’t have an Article 3 branch of government that actually gives a damn about our security.
Actually, Phred, they would know how to do just that. There has never, never, been a material security leak from a court, including the 9th.
Sorry bmaz, I was unclear. I did not intend to imply the court couldn’t keep a secret.
My intended meaning was that hiding criminal (or at the very least negligent conduct, as happened in Reynolds) by calling it a secret and denying victims access to the court makes both the citizenry and the nation as a whole much much less secure.
The misapplication of the very idea of a state secret from national security ( a legitimate concern) to one of political protection (a dangerously illegitimate function of the court), should be beyond the pale.
But it’s just another day of “we can’t be bothered” by a court that enjoys lifetime appointments to the bench specifically to insulate them from political influences on their decision making. Lazy? Corrupt? Whatever miserable excuse one might choose, this decision is indefensible.
It was that section that you quote that made me post my comment @ 9.
How does our nation address the government breaking the law if the breaking of the law is tied to information which would risk our national security from the standpoint of Government/allies wrongdoing being the security risk?
As bmaz writes and Mary quotes:
Then Mary responds:
This is beyond really bad news.
But of course, this would be the only outcome of the state secrets era.
Pat Tillman found that out first hand. His death being a ” state secret.”
The all powerful state, all seeing is killing anytime anyplace anyone just because they can. There’s a lot of dead bodies so far but the pile has room to grow higher.
The torture , they get off on the torture, too.
The dissent by Hawkins really spanks the District Court for not doing their job of examining evidence, forcing the entire 9th Circuit — 24 appellate judges — do individually do that. This, they say, will encourage future district courts to simply punt cases up the ladder, and therefore (pivoting nicely) the majority screwed up by pandering to the district court, abdicating judicial inquiry and oversight to either the Executive Branch (pay the defendants off out of the goodness of their hearts) and/or the Legislative Branch (private bills, congressional inquiries,) and not remanding the case with a stern letter to the district court judge to do his job instead of passing the buck.
Turning more to the merits, the dissent also smacks the majority around for not forcing Jeppeson to even enter a plea and respond to the allegations:
But it’s the dissent’s conclusion that carries the real barbs:
Talk about irony and twisting the knife! Twice quoting Scalia’s dissent in Hamdi v Rumsfeld . . . priceless!
A question for the lawyers: does the fact that this was a 6-5 decision affect the way in which it will be viewed by SCOTUS?
As to the question in your last sentence, no. Further, I find the dissent to be incredibly weak under the circumstances. It started out doing some spanking, and then went lame. There is simply a shitload more that Mike Hawkins could have and should have covered and done.
Such as . . . ?
I’m not disagreeing; just curious as to what you thought was missing.
My WAG is that Hawkins wanted a dissent that would get all five folks on board, rather than have one dissent among several. The unifying message in the dissent is that the majority should have sent this back down for at least a pleading by Jeppeson and the government should have been forced to assert the SS privilege once specific defenses were asserted.
If Hawkins went beyond that, two thing might have happened. One, he might have lost several of the other judges and thus spoken for only three instead of five (just pulling numbers out of my hat — no knowledge of the judges involved and who might not have wanted more). Two, he definitely would have been guilty of what he was accusing the majority of doing: arguing based on speculation as to possible defenses.
i personally know, or used to know, three of the five, including Hawkins. I guarantee you two of them would have gone a LOT further. The other two I cannot vouch for. And I have a pretty good inkling Thomas and Paez would too if it got down to it. I just think Hawkins wrote it and the others (two of whom are senior status now) and the others did not participate that much. Hawkins is likely the most conservative of the five.
What am I talking about? Where is discussion of impropriety of using classification to hide criminal activity? Where is the discussion of the tools that could protect government interest but allow case to proceed such as discussed by the panel of 3 here and Royce Lamberth on the other coast? Hawkins did his cause a disservice here I think. You do not need to build consensus for dissent opinions, only for majority opinions; this is a spurious concern.
OK, I had it backwards. From what you say, I get the idea that Hawkins was the one putting on the brakes. “If you want a single dissent, it’s going to be mine, and I’m only going as far as saying ‘you should have remanded it.'”
From the dissent:
But at the outset of the dissent, Hawkins addressed misusing classification to hide criminal activity:
I would guess that at least one of the other dissenters objected to an early draft of Hawkins’ dissent along the lines you suggest, and said “At least put my thoughts into a footnote here.”
Agreed. But there is so much more than even that to the prohibition (alleged prohibition I guess since it is never followed) of classification of illegal conduct. I dunno, maybe I am just cranky (ya think?) but I was disappointed Mike did not go a whole lot further.
No! Who would ever suspect you of being cranky??? You’re such a mild tempered, sweet fellow.
Bob in AZ
The federal judiciary could use a bit more crankiness.
Actually, more than a bit.
The courts reliance on Reynold’s would be funny, if it weren’t so insulting to our intelligence.
I assume they will appeal this travesty to the Supreme Court…
Hmm, does that mean it’s official? The U.S. is now a police state? Officially?
Because sometimes I write stuff on these, um, retarded blogs that could be taken, you know, the wrong way. Wouldn’t want to get picked up for questioning.
With spineless Democrats and despotic Republicans you get fascist and spineless judges.
The Republicans will block any reasonable judge except for those with no spine and the Democrats will not stand up and deny any of these in the pocket crooks to the bench.
present-day civil war is already taking place and the battlefield is in the courts.
Here’s the big question that the dissent doesn’t raise and the majority ducks.
With the eyes of a billion or so Muslims on us and with two wars in Muslim nations where we are claiming that we are there to help and to assist with the rule of law and democracy and with forays into another Muslim, nuclear power, nation, that is also supposedly premised on our desire to stabilze gov and help restore the rule of law –
what hurts national security more – using the American Judiciary to launder torture of Muslims as legal and unassailable, or doig the right thing?
IOW – how often do you hear of someone attacking US interests because we punished kidnap/torturers and gave legal respite to victims?
You will just have to trust the DOJ on that one….
I am so tired of all this shit, I am turning my meager portion of this blog into something more productive: all Snooki/all Lindsay All the Time!
Amazing that the judges could not see the greater national security threat which you just summarized.
Our nation is a joke trying to establish or restore Rule of Law and democracy anywhere globally after that ruling.
Exactly.
Unbelievable how the court has twisted a pretty simple notion of “national security” beyond recognition.
How awful. I hope the Supreme Court overturns it.
Not a chance. They might not even hear the case.
Boxturtle (If anything, they’ll uphold te 9th and expand State Secrets further)
Slowly but surely, wether you see it or not, the oligarchy is growing and soon we will be living in a full fledged and flagrant plutocracy. Put on some chap stix and get ready to kiss the concept of a constitutional republic and democracy goodbye. The next time a president invokes executive priviledge “WE THE PEOPLE” should respond by saying your priviledges have been revoked.
It is very interesting, make that fascinating, that the court ordered the government to pay the plaintiff’s legal costs and fees. Not sure i can remember seeing this before when the plaintiff has lost everything and had not formally made such a request. Wow.
Why, it almost suggests that the court feels a little bit guilty in throwing the case out.
Almost.
I can’t help but think about the amount of the legal bills. Perhaps the government will offer 30 pieces of silver . . .
That looks like a huge tell, to me. Thanks for pointing it out.
Translation: You were right, but we don’t want to admit it.
Bob in AZ
Alternate translation: You are right, but our reading of the law says you aren’t allowed to prove it.
Boxturte (When the law is an ass, it is sometimes because an ass is the law)
It used to take big, serious wars for our courts to ignore the Constitution; now, just WOTs.
Despicable.
What bothers me most about this decision it what it says about our judicial and legal culture (and in fact, about lawyers in general) circa 2010.
To me, it says that while the legal processes devised by these very lawyers and judges is even in their own view, fatally flawed and unsupportable by even their own attempts at logical construction, they simply must obey because a bad precedent is still a precedent, and trumps all, even when a wrong is the outcome instead of a right.
This decision is to the State Secrets Privilege what Dred Scott was to Slavery.
Shorter 9th Circuit: “Sorry, but the law is
an assthe law.”a major american court acting to shield the u.s. and its partners-in-torture from public disclosure would be a legal atrocity.
poland,morrocco, and egypt, to pick a few torture partners, seem to all be signatories to the u.n. convention against torture.
see http://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture
see also scott horton “lying for one’s country” at
http://harpers.org/archive/2010/09/hbc-900075
i suspect this decision will be a major black mark on the ninth’s record.
i suspect it was motivated, like similar cowardly federal court decisions, out of fear for the consequences to the judicial branch if it challenged a determined president and executive branch.
in other words,
“just say boo!”
(to any federal court in the land)
Thanks Emptywheel, Bmaz, Peterr and the others for making sense out of all of this for me. You are some really bright people and we are all lucky to have your wisdom at our fingertips.
This is just terrible, terrible news and I think I’m going to take a break from this blog for awhile. This one really hits me hard and I don’t think I can take much more of this nonsense.
Time to make a cup of tea and go find something else to do with my time that doesn’t break my heart into a million pieces.
Namaste
*hugs* I often feel that way m’self. It helps me more, though, to keep paying attention to detail, depressing though it is.
Ken @ 71, I don’t know that everyone here does assume that. I sure don’t, but then I’m an alien pagan and under no obligation to be patriotic. To me, the default for the state/government in a democracy is transparency: the state has to have very very good reasons to hide anything from citizens. Your government and mine and a few others seem to think that CYA for elites is a good reason, which is wicked of them, so we have to do something about that.
The default for citizens, by contrast, is liberty, which entails privacy. The state has to have very very good reasons for interfering with you (or WikiLeaks) at all. Lately, our governments seem to have forgotten that principle too.
Nicely said, skdadl.
It is good to know that north-folks like yourself have “got our back”.
We face the same arrogant, authoritarian foes.
DW
Notice how I snuck in my advertisement for WL?
Didn’t even notice without the obligatory Assanging…..
Did, with pleasure.
(Wink)
;~DW
I’m nowhere near the brightest bulb in this bunch … they’re really kind to let me hang around here.
Go recharge and then join in by supporting this blog and it’s incredible commenters as much as you can … there can be no surrender.
Everyone here seems to assume that there is a vast number of possible secrets that desperately need to be kept secret to ensure the continued security of the American Nation (No, let me change that to the American State because while the American State is still a unified entity, it seems to me that the Nation has become irrevocably fractured). Can someone just give an example of what some of these secrets might be (avoiding, if possible, overtly criminal acts carried out by the State) and how their revelation might actually threaten the security of the U.S.?
It just seems to me that all threats to the security of the American State (realistic threats, keeping in mind the absolutely overwhelming surplus of power that the U.S. wields) are from internal sources.
I really believe that the courts feel out of their depth with -and the DOJ and its criminal clientele push relentless – the foreign governments aspects on this.
We have embassies almost everywhere we were asking for torture assistance – I guess not Syria, but most places. The African embassy bombings took place after the CIA kidnapped some of Zawahiri’s guys, took them out onto international waters for some enhanced interrogations, then handed them off to Egypt to be disappeared, tortured and/or executed – depending on which you pick to follow up on.
Whether the embassy bombings would have taken place or not, without regard to that frolic and detour by the US gov involving guys who were NOT targeting the US at the time – who can say. But Zawahiri was very clear in the run up to the bombings that he was issuing a retaliation for the US actions.
Poland, one of the countries most recently in the news for its cooperation with US torturers (although they keep denying it – despite the AP story of the drill/gun and the IG report) has made the point in the press, themselves, that Poland (and you have to think, also, US interests in Poland) will be targeted for retaliation if the info on their torture assists comes out.
So while the former PRes and former interior minister are claiming that there were no US torture sites in Poland (and then belts and suspendering with a “that we know of” backhand) the Polish press is also reporting that Poland will be under retaliation threats.
http://www.wdam.com/Global/story.asp?S=13117914
http://www.thenews.pl/international/artykul139285_no-cia-torture-in-poland–claims-former-minister.html
Another of our torture pals, Thailand, has been having a lot of civil unrest and something like press on US assists in torture will only up the ante there while we are tyring to get Bout out. Just within the last 24 hours there was a Thai plane brouhaha with a suspected bomb on an LA flight
http://www.google.com/hostednews/afp/article/ALeqM5haCYxI1CVUYe1c497hBMfoGQdPkw
Then there’s the perennial problem of Pakistan, which is tied to most of our abuses, one way or another, and is ready to split down a lot of different seams – complete with nukes – as it is. THe US is ostensibly both trying to restore law and order there and support the courts, while at the same time preventing the courts there from having any power to delve into all the missing persons from our war on terror days and one thing the US doesn’t have is the support of the middle class, the penguin revolt lawyers and the engineers and other – and the support we have in ISI and gov is very much based on, well, on the US ability to engage in good government corruption efforts there. So dragging out more of the Pakistani gov “cooperation” to violate Pakistani law to help out the US is kindling for that fire too.
Then you have the torture arrangements in countries, like Italy, were we also have things like US bases that walk the line on violations of SOFA arrangements that allow the bases to operate there when the Gov uses them as bases to launch crimes against Italian residents and Italian sovereignty.
Then you have the torturers themselves, who the CIA has continued to use and promote and who now are sold as being almost “indispensable” to efforts to counter the terrorists they are also creating.
Then you have information sharing – some countries would be under legal obligations to stop acting on our info if it was really “fessed up” in a court proceeding that we are using torture and torture proxies to obtaine it – leaving holes. Others would be under legal obligations to pursue some of our “sources” in their own countries intel units if it was revealed those guys were basically working for the US and with its interests paramount, rather than working for their own nations without corruption and without breaking their own nation’s laws. So there you compromise sources as well.
I could go on a bit, but I’d say these are the kinds of “national security” concerns they are selling as being the kind of states secrets the courts should bow down to and for which the courts should allow the Exec to launder its torture through them.
I’m not even going to say that you won’t get some meltdowns from the Bush-Obama torture regimes. That’s a big “duh” bc that’s what torture does. But the constitutional question isn’t whether or not there will be a meltdown – it’s whether or not the Executive is or is not acting ultra vires when it set these meltdowns up. If it is acting in a manner that is anti-and extra constitutional, the meltdown aspects aren’t grounds for allowing the invocation of state secrets.
I think that’s where you have to go to the heart of Constitutional limits on Exec power – like what paid of (even though I was a bit surprised) in Boumediene.
But don’t be fooled – now that Obama has played his games with the court, a major challenge that goes up on something like this, even if the court did take it, could actually result in undoing Boumediene – not just losing the case at hand. Those are the kind of stakes there have always been, though.
Well, sure, but what that you just listed do the “evildoers” out there not already know and/or believe? Nothing; they got that already. Now the argument about how other governments would be caused to react is a valid point; that would be additional to what is currently extant. But are the courts really supposed to be running cover for the US government’s request to not only prevent the US from exercising its laws but also prevent foreign governments from doing so? Is that a proper purpose? Bad things are supposed to happen when you commit crimes against humanity, war crimes and international violations etc. That is the point. Is it the court’s province to stand in the way of that just because the US government would be inconvenienced by its gross criminality? I think not.
The court is not merely standing “in the way” of “that” (shall we term it “justice”?) the court has made it the supreme function of the law, itself,in its role of “protecting” the nation, to stand “in the way” of justice … henceforth and for ever more.
How may this be challenged?
Who has the “standing”?
And who may “afford” it?
Sorry, I’ve only questions, bmaz, and little hope of useful answers.
DW
Heh, not sure I have any answers either.
Yes! *air punch*
Well, you know what I think – what I’m saying is what, imo, they are successfully selling to the court – and the identities of all these guys who are acting on our behalf rather than their own govs is, imo, a part of what makes the courts hesitate – and why Totten got as much play time as it did imo from the lower court and this one – not bc of the contracts with Jeppesen, as much as the relations with the guys in Pakistan and Poland and Thailand and Morocco etc. who were really working for us, not their govs.
But you can tell by the way, after they have said their piece, they keep trying to find new, mo betta, ways to say it, and ramble over the same point again and again (kind of like me in a comment here ;) ) that they know what a turkey they have. But think how easy the guilting is – if anything goes wrong at all.
So this is why I think you have to ratchet up from just arguing the wrongness and inequity of the court covering for Exec branch torturers and make the argument one about the fact that the torture is constitutionally barred as attainder and there can be no claim of state secrets in constitutionally barred activity.
(Interesting to note, too, the court went with the Holder hair splitter of the invocation of state secrets not being invoked for the purpose of covering up crimes – without addressing the “but okyeahmaybeitdoesthattoo” aspect.
I hope I haven’t been less than obvious about where I stand – that this is crap; but I do think you have to be prepared for what the other side is likely doing and some of the comments above are my bestguesstimate on what they are doing.
Can the courts “out” a covert agent that the CIA has embedded in Pak intel or Syrian intel or Thai army or Polish interior etc. if the CIA engaged in an Executive requested crime with aht agent? Well – isn’t almost everything the CIA is going to have a covert agent do be a crime, at least in that country? Isn’t that part and parcel with espionage? That’s where the court took hands off on the wiretapping cases invovling foreign agents in the old opinions from which FISA was originally based.
So what doors does it open vis a vis something like an embedded US covert agent who is trying to have Iranian scientists kidnapped so the US can find out what is going on with the nuke projects to have cases that say courts can and should order the release of info about overseas agents who help the cia commit human rights crimes in the cia’s quest for intel on something like the nukes project – esp if, oh, say the CIA is trying to get info to calm down Israel and stave off an attack that might set off WWIII?
There are lots of parades of horribles that can be trotted out from a ruling on something like this – involving so much of the secret and covert gov apparatus.
I’m dead on with them making such a ruling anyway, but it’s always involved a lot of considerations to make a court flinch.
Yeah, I know. I am getting punch drunk from it all. Guess I ought to just step up to regular drunk…..
“They” may be hemming and hawing, backing and filling, and puffing, fluffing and plumping … however “they” do not appear overly concerned that they shall be called to task within their lifetime “tenures” … having the final “out” of admitting to being merely helpless “victims” of smooth-talking, Executive Branchers who intrigued the upright judges into compromised foreign affairs.
In for a penny, in for a pound …
If justice falls, alone, in the forest, is there, then, any sound?
Thanks, Mary, ya give me hope.
DW
Mary,
I’m not sure I comprehend all of your points, but this just occurred to me:
Could it be a conscious CIA strategy of placing all of their guilty-as-hell torture and war crime agents in super-secret strategically important CIA ops –just so they can argue in cases such as this that details of their previous crimes can’t be brought to light because in the process, their super-secret current assignments would be outed in a way that would adversely affect national security?
Now, supposedly, our courts have learned how to keep secret what needs to be kept secret, but is the administration using the same kind of run-around with the Courts that has worked so well with Congress, withholding critical information all the while imposing secrecy on all participants which effectively makes it impossible for Congress to conduct any oversight?
I think the Courts should, and I hope they will, call an end to this BS and tell the Administration to pull back field operatives from sensitive assignments until their culpability has been resolved.
In other words, is the CIA using endless secret assignments to shield war criminals from being prosecuted?
Help me out, here.
Bob in AZ
I think that is definitely one tactic that has been in use – it has been pretty clear that this was the tactic they used with respect to Rodriguez’s red head, who took taxpayer funded torture vacations and who sent el-Masri to torture and kept him there even after she knew he wasn’t a terrorist – – and who is likely the woman sent to oversee the destruction of the tapes in Thailand as well. Her original job apparently had not been covert, but she was put overseas and covert after she accumulated her criminal list and people began to look into it all. Of course,Dems on intel and the President could have required that, as someone who showed they could not be trusted to follow direct WH orders (as in, supposedly, the WH orders to preserve the tapes, wink wink) she be called back and reassigned to a non-covert slot. But they didn’t and so people like Mayer and Priest who know who she is can’t mention her.
Having used that ploy elsewhere successfully, I’m sure they’d use it again if and as they could. But I also think and always have thought that it’s more complex, especially on the foreign country aspects.
Take a look at the four “grounds” the court says are being asserted by gov – the court won’t say which ones it believes to be correct statements of the law of the case, but it does say that it’s ruling rests on one or more of the four grounds:
[1] information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities;
[2] information about whether any foreign government cooperated with the CIA in clandestine intelligence activities;
[3] information about the scope or operation of the CIA terrorist detention and interrogation program;
[or 4] any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods
In my heart of hearts, I believe the factors that made the court kneel and kiss the ring are 2 and, to a related extent, 4. But mostly 2. That is going to be the area where the courts feel they have the least, or no, power, for that matter.
Constitutionally, the grant of power to deal with foreign governments is in the Exec branch. That’s not to say that our courts have never handled claims against foreign govs, but that’s one piece. Secondly, look at the parade of horribles (sold to the courts) that stems from releasing info on how we worked with foreign governments. If we dealt with foreign governments illegally under US law or that government’s law (as, for example, by buying off members of the government; by committing criminal acts on their soil; by committing treaty violations on their soil; by violating SOFA agreements in place between the two countries; by coercing members of intel or in-the-CIA’s-pocket Presidents or Prime Ministers to act outside their authority and mislead their own parliaments or houses about activities and to lie to the EU and European investigating bodies; etc. the host of reprucussions of making that an actual legal record – as opposed to *just what everyone knows happened* can be pretty significant.
Thailand is operating on an edge and it is not taking anything to set off turmoil that can threaten the regime and stability of that nation – including putting our embassy and other interests there at risk.
Poland may well have lied to the European Union for its investigations and may have significant fallout from that, and “experts” are already telling the media there that Poland is likely to become the target of terrorist retaliation (or, more likely, formerly non-terrorists, radicalized by US contempt for rights of Muslims, retaliating against a US partner in judicially laundered crimes against Muslims). If you are the judge ruling that info has to be disclosed and as it is disclosed, the US embassy in Poland is bombed or a suicide bomber kills one of our Polish collaborators and their family – how does that sit?
In Italy and Germany we have military bases that operate free from the host nation’s governance, under status of force agreements (SOFA). Those agreements are premised in part on US obligations and undertakings with respect to crimes committed by US forces in the host nation. Information showing that we routinely flouted those obligations (as has been highlighted in the Italian case at least) begins to raise issues with respect to our military bases around the world – not so much vis a vis the corrupt governments we are paying off to allow us to commit torture in their environs, but vis a vis populations that may not feel so kindly towards us. US SOFA agreemeents, preventing nations for exercising sovereignty with respect to US crimes BC of a commitment by the US to pursuse those crimes, were one of the main propaganda issues when the Shah was kicked out of Iran and more recently, our SOFA and military base arrangements in Japan have, under Obama, already toppled one government figurehead.
Then you do have things like the court’s ability to make public a covert contract between gov and something like Jeppesen – well, there couldn’t have been just the US and Jeppesen, could there? Jeppesen had to land places. How did we get the authorities, who was paid off, who looked the other way, etc. – these things could literally topple governments and could definitely set off retaliatons. Not only that, but the whole system of how the US intel community gets other governments to bend to their whim becomes exposed – the chanters who protest over puppet governments now have something concrete. And those govs won’t just go quietly – they may take retaliatory actions against the US and its interests (an embattled PM may not renew a military base arrangement or may nationalize a US corporate asset or may withhold vital intel info they have or may even fund or provide assistance to our enemies covertly, etc.)
Then you also have things like Boeing and Jeppesen. What if a nation’s parliament decides to take punitive action against the company itself and its parent? Boeing is a vital national defense supplier. And what about overflight and landing privileges that we currently have and need to supply our forces? Our crimes aren’t just crimes – they are by and large treaty violations as well, involving multiple nations with reciprocal liabilities. And then there are the aspects like the Khadr situation in Canada, where revelations of US torture are preventing our ability to get extraditions. If that becomes more widespread and begins to affect our abilities to get any judicial recourse for somone like a Viktor Bout, that has security implications as well.
Those are just some off the cuff and not necessarily the most compelling of the kinds of arguments that can be tossed around by the DOJ as to why it and its clients should be allowed to participate in international torture crimes sprees without consequence.
It’s going to take a very solid, constitutionally compelling, argument to serve as a counterweight and even so, not many judges or justices are going to want to be the guys who delivered the opinion that was followed by an embassy bombing.
Mary,
Thanks for your reply and exegesis.
What the courts need to weigh are not only the consequences of denying the Government’s secrets argument, but the consequences of accepting the government’s secrets argument. Accepting the Government’s secrets argument leads us down a path that winds up in an even worse place.
But it looks like the Court wants to hand the ball off to Congress to fix the structural problem, and Congress has proven woefully lacking in its Constitutional responsibilities. The prospects for doing any better on this front appear to be nil as long as we’re “at war”. Perpetual war is becoming a design feature.
Thanks again,
Bob in AZ
Thanks for this, and sorry I’m so late getting back to the thread.
Your examples here and further down just serve to illustrate the intractable problem of reconciling executive prerogative with constitutional law. Very few will argue with the necessity for executive prerogative when the state itself is threatened. As Jefferson put it,
But there is no connection whatsoever between what is being litigated here, and in other related state secrets cases, and the survival of the state. Indeed, there is no credible external threat to the survival of the U.S. at present. This is the era of unilateraly assured destruction where every nation on earth is under the constant, and credible, threat of complete annihilation at the hands of the U.S. The extra-national threat that many Americans fear is miniscule, almost non-existant, and not remotely a threat to the survival of the U.S.
The courts are essentially giving the executive unlimited prerogative powers under the rubric of preserving the public good (under the strict interpretation of the “public” being some subset of U.S. citizens). The rationale seems to be that the executive is assumed to always act in good faith toward upholding the public good, therefore they are allowed to act in opposition to the written laws when pursuing that end.
But wait a minute, of what use are the written laws except to formalize what counts as the “public good”? The use of prerogative powers to uphold the public good is clearly contradictory to the notion of a nation founded on the rule of law, where the public good is defined by a written constitution and a record of case law created by citizen-jurists in open, public courts. If some group of citizens are now declared to be above the law in their pursuit of the national interest–but not, in any sense, the survival of the nation–with no oversight beyond their own enlightened public spirit (for no contemporary oversight is possible with actions that must be carried out covertly), then the constitutional foundation of the state has been abandoned; replaced by some ad-hoc form of government where the constitutionally derived apparati parry with the executive for power. An arms race where the public good is forgotten and interests that are parasitic on the public good find purchase.
There must not be any formal declaration of limits on executive prerogative in the constitution else things like ex parte Milligan wouldn’t be necessary (but I wonder, was anything in the Declaration of Independence?). Impeachment is only an effective remedy for individuals who are acting badly, and the President is only a very small cog in the Executive (though one likes to “antropomorphize” him into the entire branch). Perhaps a constitutional amendment is necessary to solve this problem.
Thanks for your contribution to this thread. You wrote:
Thanks for pointing this out. I think this is probably the loophole that Bush, Obama and the 9th Circuit have been using to justify our new secret cabal government. The trouble is that this argument is a slippery slope with no clear boundaries. Jefferson is in conflict with himself here, because elsewhere he’s a grass-roots, states rights guy.
Bob in AZ
I would hazard a guess that this particular passage from today’s decision (page 33) may presage what and how the 9th may rule on the Al Haramain v. Bush/Obama appeal:
We need a Second Republic and a new constitution.
Greenwald’s initial comments (he has the flu and intends to expound more tomorrow).
There is one extant related case, I think, Padilla v Yoo. Luttig remains parent company Boeing*s general counsel (2006-2010). Estrada did part of the advocacy in one of the hearings of that case. Blair still is trying to provide some rear-guard action for his party with respect to the Brits* as far as I know still unpublished part in matters related to case captionee Mohamed in the UK. Interesting in a historical way was a June 2009 comment by a Brit concerning the Yoo matter*s getting swept under the US judiciary carpet in a text-dense thread there.
John, you remember the most interesting things.
Meanwhile, there’s a Facebook group for you and other dogged followers of Blair to join: Subversively move Tony Blair’s memoirs to the crime section in book shops.
I was amused by the people who moved the book in Tesco’s (a grocery chain), which doesn’t have many books or specialized sections, to sit next to the wet wipes or the rodent repellent.
This decision is just another example of why the establishment in this country is corrupt.
History:
King George and his league of devils planned, schemed, devised, and finally delivered several deep blows to the gut of justice and liberty…then along came Orahmba and offered to set justice back on it’s feet…instead with a greeting of grand superfluous pretty rhetoric, he and his asshats, stuck a stiletto in it’s back and kicked justice to the floor.
Now as justice is without real care to mend it’s multiple wounds, starving for equality and a healthy dose of constitutionally guided principles, it is grasping for it’s last breath. So what happens…the legal intelligencia and it’s elitist thugs, kick justice to the curb and proceed to put a slug through it, and end it’s misery!…walking away smugly laughing…
so guess what happens to all us lesser people…I should not even have to ask!
One of the “secret law, much” parts:
I’ve been too depressed about this to comment (and to actually read the opinion) but then as I read the comments of others I was intrigued by Jeff Kaye’s post at 24 and BMAZ’s post at 53.
I certainly don’t think embarrassment to the government should justify concealing these crimes but I wonder what we don’t know. And I do believe what happened, and what often happens with our government, is far worse than we currently know. As I said, that is NO justification for hiding it and refusing to hold the folks responsible.
However, combine this with BMAZ’s note that the Ninth Circuit ordered fees to the plaintiffs, and, well, it’s enough to make a conspiracy theorist pitch a tent — or at least really make me wonder what else has been going on. I’ve got to read that language on the fees.
And Jeff — really looking forward to your upcoming story with Jason Leopold.
if you don’t have much detailed info on the 9th’s torture decision,
maybe you’d like to read this latimes article for basic info:
http://www.latimes.com/news/local/la-me-rendition-20100909,0,419570.story
the decision was 6 to 5.
doesn’t that tell you something?
did you know that?
i didn’t.
who were the justices for or against and what were their ideological predispositions?
who is the chief judge who made the assignments?
that is important info, but missing here.
The full decision is available through the links.
Decision was 6-5 raised by Peterr @ 14 and dealt with in comments. The really nifty fact that the court has ordered gov to pay for the losing plaintiff’s fees also noted by bmaz and it tells a lot more. This is en banc, so not so much an assignments issue.
wow, powow,
thanks a bushel
for a bushel of new and insight-providing information.
i remain curious about the ideological c.v.’s of the justices who voted yea and those who voted nay.
At least three of the majority were Clinton nominees; although one of them, Johnnie Rawlinson, a conservative witch on anything law and order related, is from Nevada and was shoved down his throat by Harry Reid.
Adding to bmaz’s replies, Schroeder and Canby were both nominated by Carter, and Hawkins was nominated by Clinton (those three being the original panel, and dissenters from the en banc opinion).
[Correction: The federal district judge first overruled (by the Ninth Circuit panel) and then upheld (by the Ninth Circuit en banc majority) is Judge James Ware of the Northern District of California (not Oregon).]
Mary Schroeder and Bill Canby are both simply just fantastic judges. Both really fine people too.
damn that evil george bush !!..wait..what??..he’s been gone for two years?!…then who is ordering these renditions?..hmmmm?
fundamental principles of our liberty, including justice, transparency, accountability and national security
– I’m not clear on how national security can be argued to be one of the “fundamental principles of our liberty”, except on a very minimal level, but I’m open to suggestions. The phrase “national security” is so incredibly vague as to have virtually no meaning.
bobschacht :
The founders accepted such risks because on the whole, justice can never be absolutely certain without sacrificing personal liberties…
But now, it seems, we cannot tolerate risk of any kind. We have become so risk-averse that we have become scared out of our wits and have become senseless.
– This seems to me to be a good analysis.
1. Exposing criminal CIA (and other) torture programs in black sites around the world would probably have dramatic diplomatic repercussions.
2. Exposing criminal CIA (and other) actions would open up a huge can of worms containing CIA torture programs and techniques going back to before the Bush administration. Prof. Alfred McCoy has written on this. Google KUBARK
Sound just like fucking Nazis doing the bidding of wealthy industrialist? Sick fucking bastards. Use state’s doctrine to hide the criminality of corporate aristocrats hellbent on endless profit at life’s expense… Sick mother-fuckers? I wonder what Iran would look like today if BP Exxon Mobile et als had respected Iran’s rights opposed to raping Iran, as corporations rape Americans on a daily basis???
Simply a judicial criminal conspiracy to obstruct justice.
Great, just great.
“Criminal conspiracy to obstruct justice.”
As we all know Hitler’s rise to power was a criminal conspiracy. Hitlers actions had nothing to do with justice, just like the 9th’s decision. Obstruct justice while raping humanity? More corpo-fascist garbage from a compromised court protecting the due process rights of corporations, over the life and liberties of individuals….. Corporate Servitude enabled under the color of unconstitutional law? Economic segregation……………
The NYT is not happy with the 9th Circuit:
When will the Obama administration figure out that it is on the wrong side of history in these matters?
Bob in AZ
ken muldrew @122
very thoughtfully said.
if the court refuses to “see” executive bullshit, then it provides itself with an excuse for supporting executive branch conduct.
what i find “odd” is that,
given that treaties are the law of the land,
that the ninth circuit can ignore the binding rule of the u.s.’s treaties, specifically, the u.n. convention against torture.
a court that does that, as 11 members of the ninth circuit clearly did, should be subject to reprimand or censure at the very least.
voury
One might hope that Obama and Holder would get tired of getting hammered on this subject after a while, and will change their ways. Is there still time before the elections to rejuvenate a disillusioned base?
Bob in AZ
it was hard not to feel that the short arc of the Obama Administration has bent, in this instance, toward injustice
This is what pissed me off so much about the attempt to wag the dog with the meme that people who support justice were just not giving Obamaco enough time to make the changes that needed to be made. Hell, I wasn’t ever worried or upset about that – I was mad about the changes he WAS making and the very short time frame he was craming them into.
Maybe somebody who knows something about (federal) judges and the inner workings of the judicial system can explain it to me. But I cannot, for the life of me, understand why some dissenting Circuit Court judge (or majority, as with the three-judge panel here) does not take what Turley did here (referring to the post on FDL) and run with it…drag out all the slimy facts of the Reynolds-Herring fiasco, and the misrepresentations and evasions and outright official lies and inventions there, and all the subsequent misapplications and abuses of the “doctrine” to cover up what can only be government wrongdoing, naming names and citing case after case of the courts’ ass-licking and toadying to raw, usurped executive power in the sacred name of ‘deference’. Demonstrating (and it would be so easily demonstrated) that it’s been an ongoing corrupt conspiracy among all the judges, and all the courts, to cover up their own malfeasance under stare decisis. The writer could haul in Gary Wills (as Hawkins so timidly and tentatively did here) and William Fisher, and Jonathan Turley, and any others who have clearly spoken on this matter. Such a scathing j’accuse! might embolden others and shame a fence-sitter or two, and be a large step towards ridding us of this noxious doctrine.
The judiciary will have to do it, because the legislature never will.
(Cross-posted from the Turley thing)
And while I’m asking, could somebody explain why, if there are 24 judges on the Ninth Circuit, only eleven of them participated in this case. I though en banc meant all the judges on the Circuit. If it doesn’t, and there’s a selection process, doesn’t that just invite mischief? If all 24 had participated on Jeppeson, mightn’t there have been a different outcome? (Especially if Bybee had to recuse himself)
(Also cross-posted)
From where I answered this earlier – on some thread ah here –
Yeah, I think a court ought sometime to delve into the sordid history of Reynolds. It is an excellent point. Because of the large size of the 9th Circuit, they have the ability to have en banc panels of eleven members. The only other Circuit that has this capability is, I think, the 7th; but they do not yet do it. As to how the panels are selected, I am not sure other than that the original panel of three are always included in the eleven.