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April 7, 2009 12:18 PM   Subscribe

Beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned. - Glenn Greenwald.

In other news...

The Cybersecurity Act of 2009 would, for example, give the President unfettered power to shut down Internet traffic in emergencies or disconnect any critical infrastructure system or network on national security grounds. - Center for Democracy and Technology
posted by Joe Beese (102 comments total) 7 users marked this as a favorite

 
Right, well that ends my support.
posted by dibblda at 12:19 PM on April 7, 2009


I, for one, welcome our new liberal overlords.
posted by jester69 at 12:19 PM on April 7, 2009


.
posted by Flipping_Hades_Terwilliger at 12:21 PM on April 7, 2009


Yes, Glenn Greenwald is awesome.
posted by munchingzombie at 12:22 PM on April 7, 2009


I can't even read Greenwald anymore. He gives me hysteria-fatigue.
posted by empath at 12:23 PM on April 7, 2009 [1 favorite]


George W. Bush was the best thing that ever happened for terrorists. The damage to civil liberties will take decades, if ever, to undo.
posted by Blazecock Pileon at 12:26 PM on April 7, 2009 [2 favorites]


SLOE.

And the price you pay for govt subsidized infrastructure is the govt stepping in from time to time to seize it for national security purposes. Don't want the govt to have supreme power over infrastructure? Then don't let them build it all in the first place.
posted by SeizeTheDay at 12:27 PM on April 7, 2009




Well dammit.
posted by Navelgazer at 12:28 PM on April 7, 2009


I am profoundly disappointed that Obama has gone down this path. I too can hardly read Greenwald any longer, as far as this issue goes, he proves there really is no hope.
posted by wrapper at 12:29 PM on April 7, 2009


Don't blame me, I voted for Nader.
posted by 445supermag at 12:34 PM on April 7, 2009


Well, that didn't take long.
posted by Kadin2048 at 12:35 PM on April 7, 2009


Support Our Snoops!
posted by mattdidthat at 12:35 PM on April 7, 2009 [3 favorites]


It was that tall, gawky guy that was a Republican who claimed during something we called the
Civil War that he had war powers and could ignore the consitution when he felt it was needed. It has not changed since that time.
posted by Postroad at 12:36 PM on April 7, 2009


Though foggy on the scenario, I now imagine Obama in a tizzy, upset at some gossip, scandal or internet-based terrorist threat storming out of whichever room he is in, walk down to the basement, pull out a big red key and unlock a big red door labeled "INTERNET." He unlocks the door, feels around in the dark and finally flips on the red light switch. A dim bulb flickers to life, casting a pinkish glow on the room. Ahead of Obama is a rack of components with blinking lights, and one big, red power cord running into a red socket.

"That's it, I've had enough."

It takes him five heavy footsteps to reach the other wall. He yanks the cord from the wall, and all the lights flicker, then are dark.

"Take THAT! I just unplugged the internet!"

-- -- -- -- -- --
Just remember this cautionary tale the next time you think of spreading libel, slander, or terrorism online. The President may just unplug it some day. Because he can.
posted by filthy light thief at 12:37 PM on April 7, 2009 [3 favorites]


Is that salon link broken for anyone else?
posted by fusinski at 12:37 PM on April 7, 2009


Obama shouldn't have that power. Lucius Fox should have that power. And it should only ever be used once, and then destroyed.
posted by Astro Zombie at 12:40 PM on April 7, 2009 [10 favorites]


Support Our Snoops!

Someone should put this on a black ribbon magnet and stick it on telco repair vans.
posted by Blazecock Pileon at 12:43 PM on April 7, 2009 [2 favorites]


*Delves into coment stockpile; category "Impingement of Civil Liberties by US Govt"*

Surely this...
posted by djgh at 12:44 PM on April 7, 2009 [1 favorite]


*Learns how to spell 'comment'.* Thanks for nothing, Firefox spellcheck...
posted by djgh at 12:45 PM on April 7, 2009


I hadn't even heard of that 'cybersecurity' thing. Christ. I'm not to surprised that it's Rockefeller who is sponsoring it. He was one of the major proponents of telecom immunity back during the bush administration, after it came out that laws were broken. There's also a video of him on youtube saying that the internet should never have been created the way it was, or that it never would have been if people knew what they were doing. And he's probably right that if the consequences of the internet for entrenched powers had been known in advance, it would have happened the way it happened at all. We all would have been on some locked-down AOL like "information superhighway" where we could do all the shopping we wanted, provided sellers paid the appropriate fees to your local cable monopoly, of course.

Anyway is there any evidence that Obama supports the cybersecurity thing? Crazy-ass draconian legislation gets announced every once in a while and it never goes anywhere. Like the CBDTPA that would have made any PC or other digital device that allowed unfettered copying of potentially copyrighted material illegal.

Also, in Korea, and I imagine a lot of countries more totalitarian then that the government actually does have that right.
posted by delmoi at 12:48 PM on April 7, 2009 [2 favorites]


SLOE.

I see three links. One of them is an opinion piece. You're doing it wrong.
posted by Kirth Gerson at 12:50 PM on April 7, 2009


I've started trying to be more witty and charming on the phone just in case Obama is listening.
posted by ND¢ at 12:50 PM on April 7, 2009 [10 favorites]


Don't you think witty, charming people will be the first to go?
posted by Kirth Gerson at 12:51 PM on April 7, 2009


Good to know Kirth. Next time I make a post I'll be sure to link an editorial, and then link to two other completely irrelevant sites, and call that a good post.
posted by SeizeTheDay at 12:53 PM on April 7, 2009


". . . we reject as false the choice between our safety and our ideals."

Say it ain't so, O.
posted by IvoShandor at 12:54 PM on April 7, 2009 [1 favorite]


Don't you think witty, charming people will be the first to go?

We'd hope so, but the snarky bastards are just that guy in the Dawn of the Dead remake. Sure, he has some snide remarks that make you smile, but you really want him to be the first to die.
posted by filthy light thief at 12:55 PM on April 7, 2009


The first to go . . . on a list of people Obama thinks are cool and who he plans to invite to come to the White House and hang out with him and Kumar and play video games and maybe shoot some hoops. At least if all goes according to my plan.
posted by ND¢ at 12:58 PM on April 7, 2009 [1 favorite]


Say hello to the new boss. Same as the old boss.
posted by inoculatedcities at 12:59 PM on April 7, 2009 [1 favorite]


posted by Kirth Gerson Don't you think witty, charming people will be the first to go?

Per executive order, the witty, charming people will be told they are not Obama's bitches, and they should get their own damn fries.
posted by mattdidthat at 1:00 PM on April 7, 2009


I'm not saying I'm not upset, only that I'm not suprised.

I've never put stock in the belief that things I say/write over the internet and the phone waves are actually, definitively private. I just figure there's always been people with the means and motive to snoop, and always will be.
posted by HabeasCorpus at 1:01 PM on April 7, 2009 [1 favorite]


From the bill:
[The President] may declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal government or United States critical infrastructure information system or network.
I don't think this is really feasible for a "cybersecurity emergency", but I don't see a problem with disconnecting exploited machines from the network.

There's a whole bunch of different items in the bill and some of them are good ideas, like having a national computer security plan and review system.

The snooping issue is different, and although I disagree that this kind of behavior is protected by national security, I wouldn't expect any president to stop fighting the courts on this type of issue.
posted by demiurge at 1:01 PM on April 7, 2009


I just looked up Glenn Greenwald. Impressive resume, but who the hell goes to Wachtell for litigation?
posted by jock@law at 1:01 PM on April 7, 2009 [1 favorite]


the outrageously broad "state secrets" privilege invented by the Bush administration

That's the Bush administration of 1953, I take it?

I'd be more persuaded by his analysis if he didn't get a basic fact like that wrong.
posted by yoink at 1:02 PM on April 7, 2009


SeizeTheDay: "Don't want the govt to have supreme power over infrastructure? Then don't let them build it all in the first place."

And whose money was the government spending to build it?
posted by Joe Beese at 1:05 PM on April 7, 2009


I'd be more persuaded by his analysis if he didn't get a basic fact like that wrong.

The diffrence between the state secrets privilege used by the Bush and Obama DOJ is radically different then the privilege used before. In the Past, the the government had the right to keep specific documents out of court. now, they claim the right to have entire lawsuits thrown out, rather then restricting specific bits of evidence.

Glenn Greenwald never claimed that the state secrets privilege didn't exist in the past, before the bush administration. In fact, he's had posts that have gone over the differences between how it was used in the past and how it's now used today.

In other words, unsurprisingly, you're actually the one who has your facts wrong.
posted by delmoi at 1:09 PM on April 7, 2009 [4 favorites]


posted by SeizeTheDay Don't want the govt to have supreme power over infrastructure? Then don't let them build it all in the first place.

On the non-government-funded Internet, Ron Paul Googles YOU!
posted by mattdidthat at 1:10 PM on April 7, 2009 [2 favorites]


My visualization of this would be a very large, wall mounted knife switch, with a round red knob. It would take two hands and a strong back to operate.

To one side, the Humpty Dumpty "Internet? Yes ___ No ___" image, made infamous by 4chan. An embedded Polaroid camera would spit out a photo of Obama made as soon as the contacts cleared. Klaxons would sound. On the other side sits a little map of the United States, with tiny glowing LEDs representing major cities winking out one by one.
posted by adipocere at 1:11 PM on April 7, 2009 [1 favorite]



"Take THAT! I just unplugged the internet!"


Dude...everyone knows there are internets. One plug isn't going to do it.
posted by spicynuts at 1:15 PM on April 7, 2009 [1 favorite]


Tell that to bank stockholders, Joe Beese. As is pretty evident managers (govt or private) are incentivized to gather and maintain power (money). Power corrupts, absolute power corrupts absolutely.
posted by SeizeTheDay at 1:15 PM on April 7, 2009


"And whose money was the government spending to build it?"

China's?
posted by mr_crash_davis mark II: Jazz Odyssey at 1:16 PM on April 7, 2009 [3 favorites]


More from Greenwald today: Obama, the ICRC Report and ongoing suppression
posted by homunculus at 1:17 PM on April 7, 2009


God dammit. That's not right.
posted by Guy_Inamonkeysuit at 1:19 PM on April 7, 2009


Some goddamned bullshit, that's what this is.
posted by Civil_Disobedient at 1:24 PM on April 7, 2009


I love how Greenwald highlights a passage cited by the DOJ from a court opinion and says OBAMA wants this! I also love how he highlights working draft legislation and asserts OBAMA wants this!

Listen, there is a state secrets privilege. It exists. It is a good thing it exists. I don't know about this case, but Greenwald plays his column like the litigator he is--he plays by lawyer's rules, not by journalistic rules. By doing so he obscures more than he enlightens. Prophecy has come over me--This will come to bite him in the ass.
posted by Ironmouth at 1:24 PM on April 7, 2009


This is a major blow to my opinion of Obama.
posted by JHarris at 1:25 PM on April 7, 2009


Ironmouth: "I love how Greenwald highlights a passage cited by the DOJ from a court opinion and says OBAMA wants this! I also love how he highlights working draft legislation and asserts OBAMA wants this!

Do you have an alternative theory? Or were you being sincere?
posted by Joe Beese at 1:29 PM on April 7, 2009


“Don't want the govt to have supreme power over infrastructure? Then don't let them build it all in the first place”
Just like roads. On the other hand, we were setting up a pretty nice public transportation system until the public-private partnership got involved and screwed all that in the keister. More public oversight maybe? It is ours.
I’m unclear how this changes anything. Disappointing perhaps that the Obama administration went this route, but this was always going to be a ground up task. I don’t know any government in history that willingly gave up power.
And elements of this I can see the reasoning for. Information is the new intelligence specie. Back in the day you couldn’t let anyone know how much you’re spending on intel (well, ok, you still can’t) because that lends itself to certain methods of prediction and anticipation. So too does disclosure of the nature of the relationship with private companies, and certain other things.
That aside, that doesn’t mean there can’t be a secure method of oversight or protection from abuse and harm or redress of harm done here. I see the need for certain things to be secret, but there’s no excuse for giving the government that kind of power.
The technical stuff is out of my league though.
Still, Clinton made some moves like this. At the time I was treated with condescension as a conservative nut job. Looks like I’m back to ‘Do.’
Bit ironic that one of the articles on the sidebar is “Endless right-wing self-pity.” I think it’s accurate generally speaking. But Greenwald’s right that many of the voices that railed against the Bush administration for doing this are silent when Obama does it (present company sincerely excepted).
On the other hand could just be bureaucratic inertia. I was leery of Obama packing ex-Clinton administration members into his outfit. Seems to be what’s pretty much happened though. I think he’s got to key back in to his grassroots and get the skinny from folks on the ground rather from his advisors. In terms of policy, we’ll know in time what his administration is aiming at. If it’s more like this than that really sucks. But it’d have to be opposed and changed no matter who was in office.
posted by Smedleyman at 1:30 PM on April 7, 2009


This is a major blow to my opinion of Obama.

Just because hysteria-monger Greenwald says something is true does not make it so. Please read the brief. Really, this guy is a fool and never gives you both sides of the story. He is a poor source for understanding all of this.

The other thing that drives me nuts is that Greenwald just expects the government attorneys not to take a position which is advantageous to them in a suit for money damages against the government. It is these lawyers job to make sure that our tax dollars do not go to people suing the government for money. He takes the everyday positions of lawyers trying to win a case and makes it a policy decision directly attributable to Obama.

If I was working for the government on this case I would take a position contrary to my own political beliefs if it meant winning a case to which I was assigned. This is what being a lawyer means.
posted by Ironmouth at 1:31 PM on April 7, 2009 [4 favorites]


Do you have an alternative theory? Or were you being sincere?

The government (1) does not want to lose this case and pay money. No matter what. They aren't going to roll over--nor should they; (2) they do not want to set a precedent where intelligence officials are routinely sued, costing the government tons of money and time.

Seriously, the government does not set out to lose cases. Nobody does. Greenwald makes way to much of regular court-room manuvering in order to ride his pet cause.
posted by Ironmouth at 1:34 PM on April 7, 2009


The diffrence between the state secrets privilege used by the Bush and Obama DOJ is radically different then the privilege used before. In the Past, the the government had the right to keep specific documents out of court. now, they claim the right to have entire lawsuits thrown out, rather then restricting specific bits of evidence.

Ah, so you're referring to the Bush administration of 1980, then, you know when Farnsworth Cannon, Inc. v. Grimes (635 F.2d 268, 273 [4th Cir. 1980]) was decided. Sorry, but whatever extensions Bush has made to the doctrine, using it as the basis for dismissing cases entirely was not one of them.

Glenn Greenwald never claimed that the state secrets privilege didn't exist in the past, before the bush administration. In fact, he's had posts that have gone over the differences between how it was used in the past and how it's now used today.

Oh, I see. How terribly, terribly wrong of me. I see I should have said that he was in incompetent writer and not an incompetent legal analyst. (Please look at the sentence I quoted. If you can make it mean what you claim it means, then bravo; I cannot).

In other words, unsurprisingly, you're actually the one who has your facts wrong.

Great, I've got a stalker.
posted by yoink at 1:38 PM on April 7, 2009 [1 favorite]


SLOE.

Dammit, now I want some gin.
posted by Pope Guilty at 1:40 PM on April 7, 2009 [1 favorite]


AAAAAAAAHHHHH government! Stop doing things that I hate! I want to believe in you, goddamnit!
posted by Afroblanco at 1:40 PM on April 7, 2009


If I was working for the government on this case I would take a position contrary to my own political beliefs if it meant winning a case to which I was assigned. This is what being a lawyer means.

The other point about all this is that it's one thing for the DOJ to invoke Executive Privilege (and, surely, no one is arguing that there should be no cases in which that privilege is invoked?). The problem is with the cowardly behavior of courts that have failed to exercise their role to ensure that the privilege is not abused. The story of Executive Privilege abuse is a story of the failure of the judiciary more than anything else. What we need is a good test case to come up before the Supreme Court which reminds the lower courts that they do, in fact, have both the responsibility and the power to ask the government to prove to them that national security is genuinely at stake and not merely being appealed to as a convenient cover.

The only problem is that it's not clear if the current court would give a sufficiently stringent ruling on the matter.
posted by yoink at 1:48 PM on April 7, 2009


Ironmouth: "The government (1) does not want to lose this case and pay money. No matter what. They aren't going to roll over--nor should they; (2) they do not want to set a precedent where intelligence officials are routinely sued, costing the government tons of money and time. "

Well, money is certainly in short supply these days. But "roll over" strikes me as an odd way to frame this. As if the Executive Branch were a humble shopkeeper being shaken down for protection money by the greedy thugs at the Electronic Frontier Foundation. There were in fact felonies committed here. If we can't get justice [i.e. Bush in prison], money will have to do.

Also, it's not clear to me what your phrase "the government" refers to, if not to Obama. [Who said of the stink over AIG bonuses: "The buck stops with me."] Either the DOJ is acting in accordance with his will or it isn't. And if it isn't, that doesn't say much for Obama either.
posted by Joe Beese at 1:56 PM on April 7, 2009 [3 favorites]


We know that lawyers are whores, Ironmouth; tell us something we don't know. For example, is there anyone directing these lawyers, possibly someone whose oath to uphold the Constitution takes precedence over their zeal to reduce government spending?
posted by Crabby Appleton at 2:01 PM on April 7, 2009 [4 favorites]


I have no opinion on the lawsuit/state-secrets issue, because I don't know enough about it. However, just because Sen. Rockefeller (D-WV) introduces a bill into the Senate doesn't mean that Obama supports it.
posted by thewittyname at 2:01 PM on April 7, 2009


I love how Greenwald highlights a passage cited by the DOJ from a court opinion and says OBAMA wants this! I also love how he highlights working draft legislation and asserts OBAMA wants this!--Ironmouth
As opposed to who, exactly? Isn't Obama ultimately responsible for the policies implemented by his DOJ?

I do realize that there is supposed to be some separation between the DOJ and the president, but do you think the Eric Holder would push this over Obama's objections?
(Please look at the sentence I quoted. If you can make it mean what you claim it means, then bravo; I cannot).--yoink
Here is the sentence you quoted, along with the one before it in full:
But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.
It seems pretty obvious to me that when Greenwald talks about the "state secrets" privilege in the second sentence, he's talking about the same "state secrets" privilege referred too in the sentence immediately preceding it. That is, the privilege that bars any lawsuit against the bush administration. That interpretation of the privilege, the version of the privilege invented by the bush administration. According to Greenwald, is new.

Your post implied that you thought Greenwald wasn't even familiar with the use of the state secrets privilege in the past.

here is a previous article greenwald wrote about the state secrets privilege
Nobody -- not the ACLU or anyone else -- argues that the State Secrets privilege is inherently invalid. Nobody contests that there is such a thing as a legitimate state secret. Nobody believes that Obama should declassify every last secret and never classify anything else ever again. Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege. Those are all transparent, moronic strawmen advanced by people who have no idea what they're talking about.,

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. That is the theory that caused the bulk of the controversy when used by the Bush DOJ -- because it shields entire government programs from any judicial scrutiny -- and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).
In other words, Greenwald does know what he's talking about, and you don't.
Great, I've got a stalker.--yoink
No, you're just wrong a lot. But more irritatingly, in addition to being wrong, you condescend to people who are correct.
posted by delmoi at 2:03 PM on April 7, 2009 [5 favorites]


We know that lawyers are whores, Ironmouth; tell us something we don't know.

Shall I tell you what its like to not be 15 years old anymore?
posted by ND¢ at 2:06 PM on April 7, 2009 [1 favorite]


HabeasCorpus? I heard you were dead.
posted by homunculus at 2:06 PM on April 7, 2009


Actually, delmoi, Greenwald is still wrong.

The legal precedent for the Bush administrations interpretation of state secrets privileges goes back at least as far as 1992, when a federal appeals court dismissed a lawsuit filed by a group of sailors against a group of defense contractors on the basis of the state secrets privilege.

So the precedent's been there since the tail end of Bush I's term in office. I'm not sure whether the plaintiffs either didn't appeal the ruling, or the supreme court rejected the appeal, but in either case, the precedent was apparently allowed to stand.

So from that point forward, the legal authority for the executive to dismiss court cases on the basis of the state secrets privilege was established in law, regardless of what Greenwald has written on it.
posted by saulgoodman at 2:18 PM on April 7, 2009


Sigh. Well, that sucks. I mean, couldn't it have waited until after the first 100 days?

Even though many people in this thread are tracing the basics of this policy back and back and back, illegal wiretapping and choosing to ignore the Constitution (particularly the Bill of Rights) is going to be associated with W for a long time to come, and the fact that he (or rather, his Administration) opened that door always meant that the next guy could walk right through it. If nothing else, maybe the die-hards who were all for it when it was Their Guy will think twice about how stupid and dangerous it was now that it's Our Guy.

Or mostly Our Guy. Dammit. So no period yet from me, but he's On The List....

,
posted by tzikeh at 2:21 PM on April 7, 2009


All the same, I can't say this story hasn't rattled me a little. So I wrote the administration about it, urging them to offer an explanation of their position. Maybe for now, they'd like the option of running a warantless surveillance program on the financial sector. /kidding

Seriously, I guess this is an issue to keep an eye on.
posted by saulgoodman at 2:22 PM on April 7, 2009


We know that lawyers are whores, Ironmouth; tell us something we don't know.

I find nothing more disgusting than the client who hates lawyers, hates them there entire life, then suddenly finds Jesus once their ass is on the line. Lawyers serve the purpose of people not settling their affairs via gunplay. Perhaps this is a value you don't care about.
posted by Ironmouth at 2:23 PM on April 7, 2009 [7 favorites]


If it makes one an ass to find the labeling of one's profession equated with prostitution obnoxious and to identify that type of immaturity and ignorance for what it is then I suppose that makes me an ass.

Also here are a few more "whores" for you to consider: Abraham Lincoln, Gandhi, Thurgood Marshall, Louis Brandeis, Clarence Darrow and Nelson Mandela.
posted by ND¢ at 2:23 PM on April 7, 2009 [1 favorite]


By the way, anyone interested should check out this handy-dandy time-line of the entire history of legal precedent related to the "states secret privilege" (almost) up to the present-day. It's pretty much always been used for awful reasons, many of them not even remotely related to legitimate national security concerns.

One of my favorites is:
January 1990: FBI’s Investigation of Child’s School Project Upheld
A lawsuit against the FBI’s investigation of a sixth-grade boy and his school project to create an “encyclopedia of the world” is stopped when an appeals court rules that the agency is shielded by the “state secrets” privilege (see March 9, 1953). Unable to secure information from the FBI as to why it investigated him, the child had therefore “failed to sustain his burden of proof [and] the cause of action was properly dismissed.”
posted by saulgoodman at 2:34 PM on April 7, 2009


One nice thing, though, is that unlike the rightwing blogs during the Bush administration, no one is actively cheering this stuff on or trying to defend it (at least that I've seen). I'm sure there are some people out there doing it, but I havn't seen any kind of defense of these things on any of the blogs I read. But on the other hand, some blogs are ignoring it and focusing more on the budget.

The Obama administration has also released many of the torture memos, and and it appears that there are some people in the administration who want to release more, including Holder and others in the DOJ.
posted by delmoi at 2:34 PM on April 7, 2009


My remark about lawyers being whores was a cheap shot. We have an adversarial legal system. Lawyers have to get paid. Many who work for corporations in other capacities are also whores, and I can't entirely exempt myself from that generalization. Mainly I shouldn't have said it because it seems to make you feel free to ignore the more substantive part of the comment.
posted by Crabby Appleton at 2:35 PM on April 7, 2009


In other words, Greenwald does know what he's talking about, and you don't.

Greenwald doesn't know what he's talking about if he maintains, as you claim, that it was a Bush innovation to use the state secrets privilege to have cases dismissed. I even helpfully provided you with a reference to an earlier case. I wonder why you just ignored that bit of my response?
posted by yoink at 2:38 PM on April 7, 2009


Well, as I have said in the past, I don't think that calling people that exchange goods and services for payment "whores" is very accurate or helpful, but as you said it is a derail from a substantive discussion and I too am perfectly happy to drop the whole thing.
posted by ND¢ at 2:41 PM on April 7, 2009


Greenwald doesn't know what he's talking about if he maintains, as you claim, that it was a Bush innovation to use the state secrets privilege to have cases dismissed. I even helpfully provided you with a reference to an earlier case. I wonder why you just ignored that bit of my response?

Well, I was referring to your original comment, which seemed to imply that Greenwald hadn't heard of the state secrets privilege at all. I'm not sure what the differences are between the current cases and the previous ones.

But one important difference, at least from what I understand is that it's one thing to say without piece of evidence X, a plaintiff has no case, and X is covered by state secrets, and therefore the case has to be dismissed and simply to "This case can't go forward, even with evidence that is already publicly known".

In the Jesspin Dataplan case, you had a plantif who could testify to being tortured, and transported on plains owned by the company, etc. The Obama administration is arguing that the case can't go forward even without using any material covered by state secrets. That, again from my understanding, is the big change.

In other words:
Before: case gets dismissed because key peice of evidence is state secret

After: Case gets dismissed because we say so, even though there is evidence which is already known.
posted by delmoi at 2:52 PM on April 7, 2009


yoink, while the 1980 case you cite did indeed establish that the states secrets privilege could validly be used to dismiss entire cases, it did so in a very narrow and qualified manner. The government was still required to argue the hows and whys in court, justify the application of the privilege to the judge, and make all reasonable attempts to accomodate the case. That was not under dispute until 2001.

Take a look at this 2001 case, right before the "Bush reinterpretation" occurred, which concluded that the district court's recognition of the state secrets privilege, asserted by the United States, does not foreclose the possibility of a fair trial. Indeed, the district court firmly believes that "this case can go forward through remaining discovery and trial without risking disclosure of any materials which have been ruled out-of-bounds." We conclude that the court should proceed in this fashion.
posted by mek at 2:55 PM on April 7, 2009 [1 favorite]


Whoa guys, chill out on the "whores" talk. This is MetaFilter here. We're generally sex-positive and support protections for sex-workers. We don't discriminate on someone's choice of occupation, and we shouldn't moralize. If Crabby Appleton wants to hold a misguided belief that "lawyers" are people who exchange sexual favors for money, then we should correct him and explain that lawyers practice law and exchange legal advice for money, but we should not believe that he meant any sort of insult to lawyers. It's not like he called them "politicians" or any sort of dirty word.
posted by explosion at 2:55 PM on April 7, 2009 [1 favorite]


"The government (1) does not want to lose this case and pay money. No matter what. They aren't going to roll over--nor should they; (2) they do not want to set a precedent where intelligence officials are routinely sued, costing the government tons of money and time. "

This is a valid point. The government has every right to argue their case in court. However, it's hard to do that when they won't allow the case to go to court, dontcha think?
posted by mek at 2:57 PM on April 7, 2009


Now that I think about it, the previous case I mentioned might have been considered a different matter because the plaintiffs in the lawsuit were former sailors. I think there may have been an even older precedent allowing cases filed by former military to be dismissed on the basis of state secrets privilege. But really, Greenwald skews a little sensational in his coverage of this subject sometimes, in my opinion. I don't mean to say he's not doing valuable work here--he is.

But is it really that much an expansion of the state secrets privilege to go from saying that any evidence presentable in court can be barred on the basis of the privilege (in effect, achieving the same result as if the executive had the power to dismiss the case by forcing the courts to dismiss it due to lack of standing) to simply granting the executive the power to dismiss whole cases on the basis of the privilege?

The scope of the power is the same either way. If any evidence that could be brought to bear in a case could be barred under the state secrets privilege, then any case could de facto be dismissed using the privilege, couldn't it? No admissible evidence = no case.

Until the law regarding the state secrets privilege is reformed, it's just going to be a damn sweeping, dangerously broad executive power. It's the misapplication of the power that we have to look out for.

And as for the Cybersecurity issue, as others pointed out, this is just a bill introduced by a Republican lawmaker in congress. It doesn't necessarily have an endorsement from the administration. Making that leap would be like saying Obama wants to ban gay marriage because Lindsey Graham or some other prominent Republican introduced a bill with that intent.
posted by saulgoodman at 2:58 PM on April 7, 2009


Mek: Did you read the 1992 case I cited? It threw out an entire lawsuit--not just the evidence needed to give the suit standing--but the lawsuit itself. (But then, as I mentioned in my last comment, the fact that the plaintiffs were former military might have also been a factor in the decision.)
posted by saulgoodman at 3:03 PM on April 7, 2009


Until the law regarding the state secrets privilege is reformed

Is there any relevant statute law? I thought it was entirely based on legal precedent deriving, ultimately, from British law.

The scope of the power is the same either way. If any evidence that could be brought to bear in a case could be barred under the state secrets privilege, then any case could de facto be dismissed using the privilege, couldn't it? No admissible evidence = no case.

From my reading of the case Greenwald is discussing (which I admit was not thorough, so I could have got this wrong), the DOJ is arguing that the specific documents they would place under State Secrets privilege are such as would be necessary for the plaintiffs to establish standing. In other words they aren't saying "we demand that you throw this case out on the global basis of state secret privilege" but "if you grant our specific state secret privilege applications, then the plaintiffs will not be able to demonstrate standing, and consequently we appeal for you to throw the case out."

I think the abuse of state secret privilege sucks (Barry Siegel's recent book on the subject if terrific), but it's primarily a story of the courts failing in their job of being a "check" and "balance" to the Executive Branch.
posted by yoink at 3:19 PM on April 7, 2009


yoink, while the 1980 case you cite did indeed establish that the states secrets privilege could validly be used to dismiss entire cases, it did so in a very narrow and qualified manner.

Yes, certainly. And?

I'm not saying that the Bush administration didn't hit the state secrets privilege like junkies on a bender. I'm not saying they haven't lowered the bar for appeals to state secrets privilege. I am saying, and you clearly agree with me, that it would be simply mistaken to suggest that the particular innovation that the Bush administration introduced into the invocation of the state secrets privilege was that of using it to have entire cases dismissed. The case I cited established the practice, and later pre-Bush cases widened its application.
posted by yoink at 3:24 PM on April 7, 2009


I think the problem people have with it is not so much disagreement with the interpretion of law put forward, it's with the audacious act of putting forward that particular interpretation of the law. Obama was elected on the basis of promising change from Bush. Specifically, but not limited to, "stop telling lies", "stop torturing people", "stop trying to turn the USA into a dictatorship by presidential fiat". On the face of it, this is about as great a breach of that promise as could be committed.

I have some small hope of Obama's minions being canny enough to advance a ridiculously broad argument in the expectation that, being so ridiculously broad, it will fail and end the matter; but I don't like the chances of that being the case.
posted by aeschenkarnos at 3:24 PM on April 7, 2009 [2 favorites]


On the face of it, this is about as great a breach of that promise as could be committed

Isn't that hyperventilating just a tad? I mean, this is making an argument in court, with which the court is free to disagree. That seems an awfully long way from "turning the USA into a dictatorship by presidential fiat." Presidential fiat would be a matter of issuing instructions to the court on how it must rule, or of dispensing with the court altogether--neither of which obtains here.
posted by yoink at 4:21 PM on April 7, 2009


Saulgoodman, while I'm unable to find the actual text of the ruling you cite, it seems to me that the reasoning in the 1992 case you present does not conflict with the pre-Bush-reasoning in the 2001 case I did; in your case, the court has considered the privileged information/evidence and made its own determination that the information cannot be censored in a satisfactory manner, and therefore the case cannot be allowed to proceed.

The radical difference in the Bush era is that the court no longer has the right to consider the evidence the administration believes is under privilege. The courts have been short-circuited, and no longer has any say in the manner - they simply rubber stamp the assertions of the presidency. The new DOJ position is that the court does not have the right to determine whether or not the privilege is being correctly applied. The executive is now wholly above the judiciary.
posted by mek at 4:26 PM on April 7, 2009 [2 favorites]


the court no longer has the right to consider the evidence the administration believes is under privilege

I think the court has the right, it has simply failed to exercise that right.
posted by yoink at 4:43 PM on April 7, 2009


yoink: "this is making an argument in court, with which the court is free to disagree. That seems an awfully long way from "turning the USA into a dictatorship by presidential fiat.""

Would the distance look the same to you if it were the Bush Department of Justice making these arguments?

Be honest now.
posted by Joe Beese at 4:58 PM on April 7, 2009


Would the distance look the same to you if it were the Bush Department of Justice making these arguments?

Be honest now.


Probably not, because the Bush administration was also participating in a whole range of illegal actions for which it deliberately sought to avoid or circumvent court oversight. For the executive to assert its right to lock people up without trial and without judicial appeal (as the Bush administration did) is indeed coming close to "turning the USA into a dictatorship by presidential fiat"--in fact, so close as to be touching.
posted by yoink at 5:05 PM on April 7, 2009




Different flies.
Same shit.
posted by signal at 6:57 PM on April 7, 2009


Is there any relevant statute law?

No, it's all a matter of case law, as far as I know. But I don't see why there couldn't be legislation. As far as I know, the legislature has the right to circumscribe any executive power it wants to apart from commander-in-chief powers (at the very least, it would be an interesting constitutional question).

That is another factor to consider here. These state secrets privileges were originally invoked in regard to activities that took place during a time of war. During wartime, the constitution grants the executive greatly enhanced powers, and historically, the courts seem to have viewed states secrets privileges more broadly in wartime, too.

Although the popular idea still persists that congress never actually passed a formal declaration of war to authorize Bush's War on Terror, in fact, it did issue a joint resolution that specifically stated its intent to act as an indefinite authorization of the use of military force consistent with the War Powers act, which basically means it was for all practical purposes a formal declaration of war, to the extent one was needed.

The language of the resolution provides extremely broad discretion to the President in how and against whom to conduct the war, and congress hasn't, to my knowledge, adopted any legislation that's changed the current legal situation, so technically, the President still has his war time commander-in-chief powers under the law, as far as I know. That does means he still enjoys a lot of extra legal authority. Not saying that's how the state of affairs ought to be, just that's how it is, in my reading.

I guess what I'm saying is, as wrong as all this is, technically it might actually be right.
posted by saulgoodman at 7:41 PM on April 7, 2009


in your case, the court has considered the privileged information/evidence and made its own determination that the information cannot be censored in a satisfactory manner, and therefore the case cannot be allowed to proceed.

I see the distinction your making, and it's a good one, but the federal appeals court decision ruled that the previous court's dismissal had to stand without the appeals court even taking the new evidence into consideration--in fact, the court ruled that it couldn't examine the new evidence, because the application of state secrets privilege didn't permit it:
This time the plaintiffs file over 2,500 pages of unclassified documentary evidence supporting their claims that the contractors were negligent in their design and implementation of the weapons systems aboard the Stark. The appeals court finds that regardless of the amount of evidence entered, to allow the trial would be to potentially infringe on the US government’s “state secrets” privilege (see March 9, 1953). “[N]o amount of effort could safeguard the privileged information,” the court rules.

In other words, while the appeals court precedent arguably didn't go so far as to grant the executive the authority to throw out cases before they ever came to court, it did in principle grant that the assertion of the privilege makes the consideration of any evidence that might act counter to the states secret claim out of bounds.

Since Reynolds, the courts have never ruled that anyone other than the executive branch has the authority to rule state secrets claims legitimate or not. In fact, that was the central question Reynolds addressed, and all the precedents since have reinforced this determination.

When Reynolds first clearly established state secrets powers in US case law, the ruling explicitly granted the government the authority to withhold or block evidence from the courts in its own discretion--not just to withhold evidence from consideration at trial but even from judicial review. The majority decision held that states secret privileges are exclusively the executive's prerogative.

So previous precedent held that the executive could declare any particular piece of evidence it wanted off limits, and the 1992 federal appeals court decision ruled that even a trial that might bump up against the state secrets privileged evidence posed too great a potential risk to national security to be allowed to proceed.

So, I still say, the legal precedent for dismissing civil cases on the basis of the government's assertion of the state secrets privilege was already established by the time Bush abused the authority. In this case, he just grossly abused an existing legal authority. Do I think state secrets privileges should be reigned in? Hell yeah. But if the legislature tried to do it, the courts might just strike the legislation down, citing inherent executive powers. But then again, if there were angry mobs surrounding the courthouse while the court considered the merits of the case...
posted by saulgoodman at 8:48 PM on April 7, 2009 [1 favorite]


...the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

The bolding is mine, and it tells you the part I have a problem with.

Is this the country we're becoming? Really? The "change" guy attempts to use the Patriot Act (and I hope nobody forgets what a creepy name that is) to get a blanket justification for government surveillance?

Look, I'm sorry to drag out the word "fascist", but how in the fuck does any free country in its right mind ban entire classes of lawsuit? That's like...what is left for us then? What check against government surveillance do we have then? What?

I'm not sure who the judge is on this case, but I hope this gets the solid smackdown it deserves. State secrets I can grudgingly acknowledge. Banning lawsuits? Fuck off.
posted by saysthis at 2:33 AM on April 8, 2009 [1 favorite]


"how in the fuck does any free country in its right mind ban entire classes of lawsuit... against [the] government ...?"

Um... ignorant much? It's literally a fundamental principle of American democracy...

This is all about displaced anger. Y'all are upset because if this is successful, you won't be able to sue AT&T. But AT&T isn't the main guy here anyway, the government is. And you can't sue the government unless it says you can. You know how, in American democracy, you deal with a government that does something wrong? You vote it out of office. And that's exactly what happened.

Now if you can point to a reputable source indicating that Obama is continuing warrantless wiretapping, and you wanna be upset about that, then that's valid. But getting fired up and upset over arguing for a logical application (and possible extension*) of American law is a little much. Getting upset because you can't sue a private company for cash because you're mad about what the government did is a lot much.

* I've only skimmed the brief, but my understanding is that they're not actually arguing for an extension of sovereign immunity to private entities doing things at the government's request; rather, they're claiming that state secrets are so intricately tied to the wiretapping that there could be no meaningful discovery without exposing the secrets. That seems actually a bit less revolutionary, politically. I don't know much about state secret doctrine as a legal matter, though, so I don't know how much of an extension this is calling for.
posted by jock@law at 8:22 AM on April 8, 2009 [1 favorite]


What needs to be hidden here is the technology. We don't want other countries reading what we can do. Because we can't stop them from using it on us. So we keep the technology and don't use it. Revealing the technology means everybody can spy on everyone. Good? I think not.
posted by Ironmouth at 8:54 AM on April 8, 2009


The government has, since the beginning of time, been immune to lawsuit. Only where it permits itself to be sued can it be sued. This is one of the bedrock legal principles of our system, btw. It isn't just the US either. England, Europe, all of them.
posted by Ironmouth at 8:56 AM on April 8, 2009


That is, the privilege that bars any lawsuit against the bush administration. That interpretation of the privilege, the version of the privilege invented by the bush administration. According to Greenwald, is new.

Delmoi, let's get a few things strait. First. All lawsuits against the government are barred unless a law is passed granting citizens the right to sue. This was not "invented" by the Bush administration. OK? Since there were fucking kings this has been the rule of anglo-american law. Please buy and read a basic law text before ranting.
posted by Ironmouth at 6:49 PM on April 8, 2009




Breaking news: As reported by the BBC, the CIA announces to have shut down all its secret prisons.
posted by Anything at 1:42 PM on April 9, 2009


Oddly, no word on any of the major American news websites as of yet.
posted by Anything at 1:45 PM on April 9, 2009


Cast it into the fire!
posted by homunculus at 2:08 PM on April 9, 2009




Not to be dismissive, but just as heads up to anyone interested in calibrating their information filters, Bruce Fein (the author of the piece homunculus linked) is a conservative libertarian (and co-founder of the American Freedom Agenda with Bob Barr, David Keene and Richard Viguerie). Notably, it seems most of the uproar surrounding these issues is coming from former Republicans, CATO Institute people, and Ron Paul supporters these days.
posted by saulgoodman at 7:41 AM on April 10, 2009






9th Circuit Court rejects DoJ State Secrets argument
Allows landmark torture renditions case to proceed
posted by Kirth Gerson at 7:38 AM on April 29, 2009


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