In the words of ACLU attorney Ben Wizner, a lead counsel on behalf of the five detainees suing Jeppesen Dataplan, President Obama now "owns the state secrets privilege."
Wizner is correct. Remember precisely what it is that the government wants the 9th circuit to decide: that the U.S. government can dismiss any federal or civil case before it reaches the phase of discovery simply because the government asserts that the national security interests of the United States would be compromised if the case proceeds.
That's the same expansive state secrets privilege that presidents for 50 years have enjoyed -- but it's precisely the privilege that Obama, not two months ago, expressed an anxiety about: "I actually think that the state secret doctrine should be modified. I think right now it's over-broad." Obama did not elaborate. During the presidential campaign, he criticized the use of the privilege as a justiciability doctrine to dismiss entire cases, rather than as an evidentiary doctrine, used to prevent the disclosure of highly-sensitive pieces of evidence.
Why is Obama hardening up his position? If the privilege in weakened, it exposes the government to perpetual liability resulting from the mistakes of the past eight years. It would, in all likelihood, lead to a slew of civil cases brought by detainees against the government, cases that would require the government to litigate the practices of the past eight years. It would also lead to criminal cases. Obama has made it plain that he would rather focus his energies on reforming American judicial institutions rather than using the existing institutions to hold the Bush administration legally accountable for their policy decisions.
The result is that many detainees who were tortured will be denied civil recompense. It does not overstate the case to observe that the full extension of the privilege would classify an entire category of Americans as being above the law.
There is a larger push-and-pull at work. Does accountability require an actual struggle with the consequences of inheriting the mistakes of the past eight years? Or is accountability bound up in the changes in policies and law that Obama has proposed? What's the proper balance between these two competing claims to accountability?
I think that the Obama administration fears a Supreme Court battle over the state secrets privilege. It would undoubtedly be the signature case of the next term, one that would provoke an international uproar and a revolt from the president's base. The conflict would be reduced to a sentence: will tortured detainees get justice? I think that they hope that the 9th circuit will uphold the doctrine in a way that precludes an effective Supreme Court challenge from the plaintiffs. I think they are buying time until they can figure out a way to accept congressional legislation aimed at limiting the privilege.
So -- this case isn't really about secrecy. We know the secrets here -- they're contained in the testimony of the detainees and in numerous, repeatedly verified media accounts. If the case was really about secrecy, then the administration would be, in effect, contending that every secret is a real secret unless the administration acknowledges that it isn't. Jeppesen is a poor case to base a state secrets assertion on because so much is already known. It is the weakest of the several state secrets cases in the court system. And for that reason, the administration feels compelled to defend it.
Every president defends presidential power. They usually confine critiques to saying that the power was misused. The other wielders of power, in Congress or the Supreme Court, are always the ones to move to restrain presidential power, for obvious reasons of their own.
The last president to really try to diminish presidential power was possibly Gerald Ford. Or perhaps it was just because he was so weak as President that Congress was able to diminish presidential power.
The trend these days seems to be to look at an Obama mistake, or an almost mistake(detainee issue) and say "Bad! We musn't be like the evil doer from the previous eight years." Nevermind that the same people saying that are actually people who voted for Obama.
This issue is no different. Remember the Vote For Change? "We have been misled." Can the American people today actually say that Obama isn't backpeddling as well: detainee issue, anti-smoking legislation, gay marriage. It's like there's someone in his office saying,"Barrak...today you need to please the conservatives..Tuesday, the liberals."
It brings us back to "the poor detainees." If they were abused, their captors will be dealt with. But we seem to forget that some of these people had something to do with airplanes crashing into towers. Call me a bad Christian, but if I'm a guard in that prison and you get toast instead of rice for a meal..too bad! We are worried about the human rights of mass murderers and terrorists and ignoring genocide worse than "Tears Of The Sun." All the more opportune time for Barrack Obama to waver...again!
Bipartisanship works for getting a bill passed in Congress. Not for decisions that threaten National Security. It's either yes or no, and I'm sorry liberals, not everything is George Bush's fault.
Or, more cynically (and ghoulishly, in its way), buying time until there's another seat or two to fill on SCOTUS's bench. Is it possible that the most important metric for measuring these issues is the actuarial tables for Justices who are members of the Federalist Society?
This whole thing is bazaar, as is much that is going on in our country today. We were attacked, thousands of people were killed, and we have an enemy who has sworn to kill all of us if they can. We are fighting wars in two countries.
These people are not US citizens and we have military courts who could properly try these situations and free anyone who shouldn't be imprisoned. Democracy has become distorted when we start treating war prisoners like citizens. I heard on the news that Obama either has ordered, or wants to, have enemy combatants read miranda rights upon capture. I hope this isn't true because if it is, it is complete lunacy.
People who are innocent should be freed. However, only military courts know how to determine and guard information that should be kept secret for our safety. They should be held accountable to be fair to people and suitably punish those who deserve it. Civilian courts are seated by justices who are rightfully concerned with the constitutional rights of our CITIZENS, not knowing how to fight a war.
People seem to forget what 9/11 was like, and seem rather blase' about it happening again. People didn't think we were vulnerable to attack before 9/11, either. Utopian thinking is a good part of life. It needs to be grounded with common sense, though.
Our founding fathers, who understood our constitution, didn't worry about the rights of enemy combatants when we were at war. They had common sense along with their utopian ideas. In our country's entire history, no other people have coddled prisoners as we are doing.
Seems like the line between national security and the entertainment industries security is getting blurred.
Considering that we are heavily reliant on IP rights and litigating to make money is it any wonder that Uncle Sam is stepping in to protect one of his most important constituents?
They know that any public debate would quash their ridiculous ideas so they do it behind closed doors. cheap hosting The government then steps in to protect yet another failing business model at the detriment of our ability to create and innovate.
This is the same old story for any industry out there. Once a group of corporations attains the type of undeserved wealth as our entertainment industry has they quickly use their power to manipulate markets so they can continue to make their "cut".
If you really want to see who is pulling the strings just follow the money.