Keep It Like a Secret

September 23, 2009 11:13 AM

Eric Holder releases newly revamped state secrets policy.In the face of a storm of recent criticisms from political commentators that President Obama's policies on state secrets privileges represent a continuation of the Bush administration's policies, the Obama administration has maintained all along that these policies were undergoing comprehensive Justice Department review, with the intent of releasing a new set of comprehensive rules governing the invocation and abuse of state secrets. Today, the Obama administration spelled out its new state secrets policy.

Key points of the new policy:

pledges by the Justice Department to a) submit evidence to a court, so that it can review whether the assertion of the privilege is justified; b) refer credible allegations of wrongdoing to an inspector general, whenever the assertion of the state secrets privilege would prevent a case containing such allegations from going forward; and c) require that the attorney general sign off on each assertion of the privilege.

posted by saulgoodman (89 comments total)

The ACLU responds:

"On paper, this is a step forward," Wizner said. "In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.'"
posted by Astro Zombie at 11:16 AM on September 23 [6 favorites]

Buh. If the next guy can undo what Holder says he's gonna do, then we're still in imperial presidency territory.

This needs a much firmer footing than policy, as noted by Senator Leahy.
posted by notyou at 11:17 AM on September 23 [7 favorites]

It's kind of sad when I think, "Hey, I'd just be happy if they obeyed the actual law, versus the Bush 'We didn't like that, we're at war, so we are just going to make up our own stuff' approach." I get that it is an improvement, but damn if it isn't a little tragic that the previous administration set the bar so low that raising it means that a slug might no longer be able to do a pole-vault over it with a twig.
posted by adipocere at 11:18 AM on September 23 [3 favorites]

Since you link to Greenwald, here's his take on today's developments:

... the so-called "new state secrets policy" which the Obama DOJ is set to unveil is such a self-evident farce -- such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing -- that I couldn't even bring myself to write about it. It would not have altered a single one of the controverisal uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself). Fortunately, both Emptywheel and The American Prospect's Adam Serwer laid out all of the reasons why this is so.
posted by Joe Beese at 11:21 AM on September 23 [1 favorite]

I just came in here to say that I noticed the Built to Spill reference in the title.
posted by diogenes at 11:29 AM on September 23 [4 favorites]

Indeed, this looks a little too much like a coat of paint without any substantive changes to the structure itself. And the fact it's just "the way we're going to do it for now" is awfully weak soup.

A shame. I was hoping this would be a "Aha, so it was right to be patient with this White House" moment.
posted by rokusan at 11:34 AM on September 23 [1 favorite]

This needs a much firmer footing than policy, as noted by Senator Leahy.

Then fucking make some laws, lawmaker.

This is as much as any one administration can do to set policy. The executive doesn't have law-making authority beyond setting its policies. Everyone said, give us a policy. They gave us one. Now it's, "So all you did was give us policy?"

And Greenwald's been grinding his axe so much lately, I'm surprised the damn thing hasn't just shattered to pieces.

The law surrounding state secrets has always sucked. The current law essentially allows the abuses committed under Bush. And we know it's been used many times in the past to cover up various government blunders or abuses. Unfortunately, the law has always permitted it to be used that way, and even explicitly rejected challenges in the past on the basis of new evidence that state secrets were invoked only to cover up wrong doing. Why would the courts position on the law as it currently is understood be any different if Obama's DOJ brought the matter before the court again?

If you want something better, it's got to be legislative.
posted by saulgoodman at 11:36 AM on September 23 [8 favorites]

"I was hoping this would be a "Aha, so it was right to be patient with this White House" moment."

You and me both, but let's not lose sight of the fact that it was this guy who turns out to be kind of disappointing so far and is asking a bit much of our patience... or the guy who was going to make everything even worse in every possible respect..
posted by majick at 11:38 AM on September 23 [7 favorites]

A shame. I was hoping this would be a "Aha, so it was right to be patient with this White House" moment.

It isn't just a white wash. All the DOJ has the power to do is set the policy--this is literally the most it could do apart from attempting to overturn the previous admin's use of state secrets, which as I've argued before, it makes no sense to think would succeed since the courts have already held up those uses as legitimate under the current law around state secrets, rightly or wrongly.

And frankly, it's the first time any administration has even gone this far. Maybe that doesn't count much to you, but no previous administration has even defined a coherent state secrets policy; they just used it as they saw fit and offered no apologies. Not to recognize this as a significant step is ahistorical.
posted by saulgoodman at 11:41 AM on September 23 [8 favorites]

Surely this...
posted by fuq at 11:48 AM on September 23 [1 favorite]

Fair enough, saulgoodman. There is nothing wrong with this particular step, on its own and such as it is. As others say, that's what the Executive can do. The shame is that it's the only step that seems in the offing, if you follow me.
posted by rokusan at 11:49 AM on September 23

shakespeherian: "I'm going to bookmark this for later as 'Joe Beese thread'."

I try to behave myself these days. But if someone makes an "Obama rectifying Bush-era abuses" FPP and links to Glenn Greenwald for context, you can hardly expect me not to point out that Greenwald thinks said rectification is a dog-and-pony show for the rubes.

I'm not made of stone.
posted by Joe Beese at 11:50 AM on September 23 [1 favorite]

Well, saulgoodman, Presidents ask lawmakers to make and pass particular laws all the time. Obama could get out front and push lawmakers on the issue, if he liked. He could even show up with the law mostly written.

We agree, of course, that lawmakers themselves should make the necessary changes.
posted by notyou at 11:53 AM on September 23

My take on this is (REDACTED). President Obama will (REDACTED) and should only (REDACTED). (REDACTED) and Holder (REDACTED).
posted by Pollomacho at 11:57 AM on September 23

There is nothing wrong with this particular step, on its own and such as it is. As others say, that's what the Executive can do. The shame is that it's the only step that seems in the offing, if you follow me.

I definitely agree there. Maybe legislators like Leahy will finally put their shoulders into it and work on crafting some legislation to put permanent boundaries on state secrets. I've always been kind of astonished by the way the courts have consistently deferred to the executive on state secrets. The very notion of a state secrets privilege seems fundamentally at odds with the democratic ideal of government with the consent of the governed to me.
posted by saulgoodman at 11:58 AM on September 23 [2 favorites]

I'm not made of stone.

Hey, no worries here. Even if the Baby Jesus himself were President, we'd still need to have a Greenwald around to keep him honest. And I'm not 100% convinced the policies go far enough either, but at least they're clearly intended to go in the right general direction.
posted by saulgoodman at 12:04 PM on September 23

I'm not made of stone.

What, JoeBeese? I already donated $5 to make a statue of you for the MetaGarden.

Okay, I was using a credit card while drunk, but I think that's what Cortex said it was for.
posted by rokusan at 12:09 PM on September 23

The problem here is not the policy or lack thereof, it's the actual actions they take. If they actually start following the policy, and it makes an actual difference in what gets labeled a state secret--i.e., the courts, inspector generals, and the attorney general sometimes say "What? Fuck no, that doesn't need to be a secret," then this is good. Similarly, if the policy starts making them a little more selective about what they try and squirrel out of under the shroud of state secrecy, great. On the other hand, if the new policy makes no practical difference in what they do, they're once again breaking our trust. We're going to have to wait a couple of months and see what they do before we can figure out whether this is a "right to be patient with this White House" moment.

But as others have said, if we really want to break the power of the imperial presidency, we need both the legislative and the judicial branches to assert their authority to change the laws and then enforce them.

And as majick said, it's not like we had any real choice. The Obama administration may be, metaphorically, fucking us more roughly than we like, but the McCain administration would have, again metaphorically, used a splintery broom handle.
posted by Caduceus at 12:10 PM on September 23

saulgoodman: If you want something better, it's got to be legislative.

Yes, because there's simply no way that a sitting President and his administration could possibly circumvent the law, is there?

The Bush White House argued repeatedly that the President's Constitutional status as CiC of the armed forces and stated responsibility to protect the country in extraordinary circumstances (as well as other parts of Article II,) gave him the power to violate Congressional law. See: the EFF/AT&T/NSA wiretapping case.

For that matter, that same administration tried to circumvent the first and fourth amendments to the CotUS -- all in the name of the War on Terror.

What we need is safeguards to unequivocally prevent similar abuses of power. President Obama's administration needs to lobby for such measures, keep their campaign promise to do so, and above all stop covering their ass against this lawsuit.

majic: You and me both, but let's not lose sight of the fact that it was this guy who turns out to be kind of disappointing so far and is asking a bit much of our patience... or the guy who was going to make everything even worse in every possible respect.

It's easy to explain this away as "well, it could be worse. At least they're better than the alternatives." Speaking purely for myself, my expectation bar hasn't yet dropped so low that I'll be satisfied with a President and his administration if he's simply Not Bush and Cheney, Not McCain and Palin. If the Obama administration is breaking their own campaign promises and covering their own asses, then that's appropriate grounds for criticism.
posted by zarq at 12:19 PM on September 23

[I take this from my site. I had posted this a few days ago. I believe it more fully addresses the heart of the problem.]

this bright and articulate conservative addresses not Obama's particular shortcomings nor those of the previous adminstration but rather that which has been eroding what rights we once had as Americans. It dovetails nicely to the warning Pres. Eisenhower gave about the growth of the military/idustrial complex as that president bid farewell upon leaving his office. Since, the growth has continued, our bases have expanded, and we are now militarizing space as well as engaging in various wars based upon questionable reasons and doubtful outcomes. The article strikes me as non-partisan and so I post it hereGeorge W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.
But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch.
via Entangled Giant - The New York Review of Books.
posted by Postroad at 12:21 PM on September 23 [1 favorite]

Obama was also speaking at the UN today, telling the world:

"I took office at a time when many around the world had come to view America with skepticism and distrust... (a) reflexive anti-Americanism, which too often has served as an excuse for our collective inaction...no longer do we have the luxury of indulging our differences to the exclusion of the work that we must do together".

Hmmmmmmmm.

If you can't get enough of the Obama-bashing, check out the comments section at the CBC on this story.
posted by stinkycheese at 12:22 PM on September 23

Yes, because there's simply no way that a sitting President and his administration could possibly circumvent the law, is there?

Well, then, it seems to me what you're saying is there is no conceivable solution that could satisfy you.

What we need is safeguards to unequivocally prevent similar abuses of power.

As I understand it, the new policy allows courts to refer attempted misuses of the privilege to the inspector general for investigation. What specific alternative approach do you suggest?
posted by saulgoodman at 12:40 PM on September 23

stinkycheese: "If you can't get enough of the Obama-bashing, check out the comments section at the CBC on this story."

heh heh... Hannity was in top form today. After 10 minutes of spittle flecking about the U.N. speech, he audibly sagged and confessed, "I'm discouraged."

So the day wasn't a total loss.
posted by Joe Beese at 12:43 PM on September 23 [2 favorites]

Hmmmmmmmm what?

Read Obama's whole speech to the UN--it's excellent and it's worth reading more than a few unrepresentative quotes cherry-picked by the CBC. If you have time, read his speech on climate change.

Today, let me put forward four pillars that I believe are fundamental to the future that we want for our children. Nonproliferation and disarmament, the promotion of peace and security, the preservation of our planet, and a global economy that advances opportunity for all people.

[...]

Democracy cannot be imposed on any nation from the outside. Each society must search for its own path, and no path is perfect. Each country will pursue a path rooted in the culture of its people and in its past traditions, and I admit that America has, too often, been selective in its promotion of democracy.
But that does not weaken our commitment. It only reinforces it. There are basic principles that are universal. There are certain truths which are self-evident, and the United States of America will never waiver in our efforts to stand up for the right of people everywhere to determine their own destiny.

[...]

We have reached a pivotal moment. The United States stands ready to begin a new chapter of international cooperation, one that recognizes the rights and responsibilities of all nations. So with confidence in our cause and with a commitment to our values, we call on all nations to join us in building the future that our people so richly deserve.

posted by kathrineg at 12:44 PM on September 23 [2 favorites]

actually, on second read, it's the DOJ that would formally refer the matter to the IG.
posted by saulgoodman at 12:47 PM on September 23

kathrineg: Today, let me put forward four pillars that I believe are fundamental

OMG SECRET MUSLIM MINUS ONE PILLAR
posted by shakespeherian at 12:49 PM on September 23 [5 favorites]

saulgoodman: If you want something better, it's got to be legislative.

Yes, because there's simply no way that a sitting President and his administration could possibly circumvent the law, is there?

What is your idea for a law that does not allow itself to be circumvented and that is somehow put into place unilaterally by the Obama administration?

Obama's administration does not create and pass laws. He is not a dictator or a legislative body. If you want to be continually disappointed because he does not create and pass laws, that is your prerogative. Perhaps you should lobby for a more powerful executive branch...
posted by kathrineg at 12:51 PM on September 23

Hmmmmmmmm what?

Read the comments.

I think it's pretty obvious - if you don't live in the USA, this speech basically sounds like, "do what I say". And the world is well used to the President of the USA saying do what I say.
posted by stinkycheese at 12:55 PM on September 23

Well, then, it seems to me what you're saying is there is no conceivable solution that could satisfy you.

No, that's certainly not what I'm saying.

As I understand it, the new policy allows courts to refer attempted misuses of the privilege to the inspector general for investigation. What specific alternative approach do you suggest?

I would like Congress to establish an enforced incorruptible oversight process. Make that process impossible to circumvent without serious repercussions. Make informing an oversight body mandatory. Further, make it unavoidable. Institutionalize transparency in such a way that oversight cannot be bypassed. Make sure it is not hinged on at-will recommendations, referrals or whistleblowing. The courts and their officers must be kept informed by law, and they must initiate investigations or issue rulings regardless of the situation.

Then once the system is in place, bar the Executive Branch from issuing directives which bypass it. Congress has the power to do so.

To repeat, we need real safeguards. We've seen the ineffectiveness of assuming a President will act in good faith.
posted by zarq at 12:57 PM on September 23 [1 favorite]

Metafilter: Metaphorically fucking us more roughly than we like
posted by hifiparasol at 12:59 PM on September 23 [1 favorite]

I can see the policy reasons for doing this.

However, there is a reason defenses like this are raised in court at every opportunity--because it is the job of DOJ lawyers to win these cases to protect the government from money damages which you and I have to pay for. They are required to zealously advocate for their clients--that is, you and I. Condemning the Obama Administration's continued use of the practice for the last few months didn't make sense. While the Administration was working out its policy, the government's lawyers still have to try and win these cases so they don't lose our money.
posted by Ironmouth at 1:00 PM on September 23 [3 favorites]

What is your idea for a law that does not allow itself to be circumvented

See this.

...and that is somehow put into place unilaterally by the Obama administration?

What? Kathrineg, see this:

What we need is safeguards to unequivocally prevent similar abuses of power. President Obama's administration needs to lobby for such measures, keep their campaign promise to do so, and above all stop covering their ass against this lawsuit.

Lobbying for legislation ≠ unilaterally passing laws.
posted by zarq at 1:02 PM on September 23

Then once the system is in place, bar the Executive Branch from issuing directives which bypass it. Congress has the power to do so.

You misunderstand the power granted in national defense matters to the President of the United States. Congress specifically lacks the power to do that. That's black-letter law.
See Dept of Navy v. Egan for an example.
posted by Ironmouth at 1:03 PM on September 23 [2 favorites]

I think it's pretty obvious - if you don't live in the USA, this speech basically sounds like, "do what I say".

The part about wanting to put the Bush years behind us, the part about all of us working together? Not really seeing some imperative "do what I say" from the speech. Just sounds like the color by numbers, ladida, we're all friendly animals of the forest speech you'd expect a center-left politician would deliver to the UN.
posted by Marisa Stole the Precious Thing at 1:04 PM on September 23

I would like Congress to establish an enforced incorruptible oversight process.... Then once the system is in place, bar the Executive Branch from issuing directives which bypass it. Congress has the power to do so.

Hmmm. It almost sounds as though you're suggesting that the various divisions of the US government should keep checks on each other, thus maintaining an effort to balance one another's powers.

What a striking concept.
posted by hifiparasol at 1:05 PM on September 23 [2 favorites]

I'll repeat myself again: Glenn Greenwald is an idiot. Since I occasionally practice in this area of law (and he never has), he distorts arguments beyond their legal meaning and doesn't give people the full picture of what is going on in these cases. Just because Bush did it doesn't mean he should.
posted by Ironmouth at 1:07 PM on September 23 [1 favorite]

Not really seeing some imperative "do what I say" from the speech.

Well, that doesn't surprise me whatsoever.
posted by stinkycheese at 1:09 PM on September 23

I would like Congress to establish an enforced incorruptible oversight process.... Then once the system is in place, bar the Executive Branch from issuing directives which bypass it. Congress has the power to do so.

Um, Congress does not "enforce" the laws. The Executive Branch does.

What is this "oversight" process you are talking about. Congress does the oversight. If they are failing it isn't because there is a problem in the system, its because Americans don't care enough. Read a textbook on the U.S. government to get an idea of how these processes work.
posted by Ironmouth at 1:10 PM on September 23

Well, that doesn't surprise me whatsoever.

That axe sharp enough yet? Perhaps instead of being a dismissive smartass, you can cite some examples.
posted by Marisa Stole the Precious Thing at 1:13 PM on September 23

WTF? Marisa, I posted a link, you came in being a dismissive smartass.
posted by stinkycheese at 1:15 PM on September 23

" Speaking purely for myself, my expectation bar hasn't yet dropped so low..."

You know, mine neither. And I'm glad people will keep holding the administration's feet to the fire, because merely averting the total implosion of the country doesn't cut the mustard. I'm glad we're keeping the nutbars and crazies from getting their sweaty hands on the levers of power again, but obviously that's a defensive measure at best.

Still, I think it's disingenuous to keep hammering Obama over and over again for not living up to his potential. That's a far lesser crime than driving the whole country off the cliff chasing after the wingnut fundie bus. While I'd much much rather he rise to the occasion and start ramrodding real reforms -- like my goddamn single payer, please, and maybe prosecutions for war crimes and possibly withdrawing combat troops from countries we have peripheral, second- or third-order interest in at best -- through the Congress before the midterm election clock starts blinking a scary 00:00 and the red-shirted barbarians come pouring out of the hills screaming, I just want to point out that it's okay to thank our lucky stars that all we have to gripe about is a president who is maybe not exactly the beacon of progressivism we'd hoped.

We dodged a bullet, folks. What we have to quibble about today is important, but let's always go forth with the knowledge that the deadly shot missed us, and missed us all too narrowly.
posted by majick at 1:15 PM on September 23

WTF? Marisa, I posted a link, you came in being a dismissive smartass.

How? I was being sincere: reading the speech, it sounded like oatmeal to me. So I expressed confusing at this "do as I say" message that you took away from it. It almost seemed to me as if you were projecting some stuff onto the sentences that wasn't even there. This was your cue to give an example or two of what you're talking about. If the quotes you pulled out of his speech are your examples, then I'd recommend reading the entire speech. It's one big "hey guys let's all put the past behind us hold hands and sing" template. Even your cherry-picked quotes are pretty weak stuff. If you actually came away from it thinking Obama was pointing his finger at the world and telling the world to do as America says, then just wow. Cut back on the coffee or something.
posted by Marisa Stole the Precious Thing at 1:23 PM on September 23

You misunderstand the power granted in national defense matters to the President of the United States. Congress specifically lacks the power to do that. That's black-letter law.
See Dept of Navy v. Egan for an example.

Damn it. A perfectly good plan...

Does Congress have no recourse other than to attempt to amend existing EO's?
posted by zarq at 1:23 PM on September 23

Let's get another thing straight: None of us know a damn thing about these lawsuits. Are we there? Are we reading the pleadings? No. Even if we were, are we familiar with the jurisprudence in that area of the law? Indeed, how many lawyers, let alone laymen, know the law of evidence in the courts in question? Very few. So we don't know whether or not they have merit. That is what the courts are for. The last thing this country needs is justice by popular will.

Reminds me of all the idiots who said that OJ was guilty and that the jurors got it wrong. Really? They know better than a jury that sat through the longest trial in California history and saw every exhibit? No, they do not. The jury in that case was far more familiar with the facts than all but the lawyers for each side and the judge. No reporter, no next-door neighbor with an opinion, not even Peter Jennings knew more about that murder than the jury.

The government asserts defenses against those who it grants the right to sue it. Those parties suing then counter those defenses. The government is attempting to prevent itself from having to give money to people who sue it, just like you and I do. This is not unreasonable. They are doing this to protect our tax dollars from being spent unwisely.

And a judge decides the procedural questions and a jury decides the facts. What Glenn Greenwald tells you is not the facts of the trial, nor the oral arguments, nor much of what is critical about the trial. You cannot know the answers to these questions from reading 15 paragraphs on Salon.com.

Do any of us know if the government is legitimately asserting the state secrets privilege? No. We don't. Nor can we. Nor should we. Part of what our system is involves trusting the judges and juries that handle these questions. I would trust a judge and a jury a lot more than a bomb-throwing writer who is not present in the courtroom, has not heard all the evidence and cannot, by definition, know what evidence is being withheld by the judge. The judge looks at it in camera. Only the judge knows what the evidence is. The reason for this is self-evident--parties could accidently reveal information that could reveal information that would harm the country.

That is why we have a judicial system. To let the judges and juries decide. Trial by reporters and the papers creates bad justice. Let's not fool ourselves and say we know more than the people litigating these trials. Because we don't.
posted by Ironmouth at 1:27 PM on September 23 [3 favorites]

Does Congress have no recourse other than to attempt to amend existing EO's?

Congress constitutionally lacks the power to do anything other than cut off funding for defense projects. They can order no offensive, they cannot change the strategy of the country and they cannot make decisions on what information is classified and not classified. Decades of court decisions have made it clear--Classification policy is for the executive and the executive alone.

Here's the problem with all of this hullabaloo. It is fundamentally wrong to seek changes for the sake of a single case. Courts have made these decisions based on the balancing of a lot of different interests. Not just the justice of one case. They cannot. The rule of law requires that there be a legal basis for the decision. There are times when an individual miscarriage of justice is required to enforce a greater principle. The result otherwise would be predictiable--it would be the big guys who got all the breaks. Not the little guys. So we must follow the rule of law.

Greenwald would have us throw out that balancing test--throw out the government's ability to defend itself against lawsuits and protect itself because he doesn't like the results of these cases. That is fundamentally wrong and that is what is so troubling about a lawyer trying to encourage the government to stop using a tool in its legal arsenal. Greenwald doesn't even know what evidence is being hidden--he can't its classified--but he doesn't like the results of these cases so he wants to take the tool out of the hands of the government. That is exactly the reverse of the way the law should be.
posted by Ironmouth at 1:33 PM on September 23 [3 favorites]

I could quote some of his comments but what's the point? I've already said, "if you don't live in the USA, this speech basically sounds like..."

You live in the USA. That doesn't mean you can't hear what I'm hearing (and what a lot of other people are hearing, hence the point of my linking to the article/comments), but it doesn't surprise me that you don't.

But, just for laughs:

I took office at a time when many around the world had come to view America with skepticism and distrust. A part of this was due to misperceptions and misinformation about my country. Part of this was due to opposition to specific policies and a belief on, on certain critical issues, America had acted unilaterally without regard for the interests of others.

This sounds like legalese for 'I know you thought I was a prick, but I really wasn't. You were just hearing some lies'

The truth is I don't have the time right now to dissect Obama's speech. I'm at work.

Every nation must know America will live its values, and we will lead by example.

This part I like. But, like a Missourian, my attitude is show me.
posted by stinkycheese at 1:45 PM on September 23

Also, I don't drink coffee, thanks.
posted by stinkycheese at 1:46 PM on September 23

... we are doing the hard work of forging a framework to combat extremism within the rule of law.

Hard work, indeed.

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

You can call that "not exactly the beacon of progressivism" if you like. I have a different word for it.
posted by Joe Beese at 1:46 PM on September 23 [2 favorites]

I could quote some of his comments but what's the point? I've already said, "if you don't live in the USA, this speech basically sounds like..."

You live in the USA. That doesn't mean you can't hear what I'm hearing (and what a lot of other people are hearing, hence the point of my linking to the article/comments), but it doesn't surprise me that you don't.

I haven't lived in the US in ten years. And I'm not some gung-ho super patriot or something. It almost sounds like you're saying that because of my nationality, you wouldn't be surprised if I'm incapable of being critical of my home country. Which is patently absurd.

"I took office at a time when many around the world had come to view America with skepticism and distrust. A part of this was due to misperceptions and misinformation about my country. Part of this was due to opposition to specific policies and a belief on, on certain critical issues, America had acted unilaterally without regard for the interests of others."

This sounds like legalese for 'I know you thought I was a prick, but I really wasn't. You were just hearing some lies'

So you didn't notice the "a part of this" part of the sentence, at all. Or the third sentence.

But fine, your point's made. US bad, my nationality probably clouds my reason.
posted by Marisa Stole the Precious Thing at 1:55 PM on September 23

Exactly. Thanks for understanding.
posted by stinkycheese at 1:57 PM on September 23

You can call that "not exactly the beacon of progressivism" if you like. I have a different word for it.

Let me be very plain here: George Bush put Obama in this spot by torturing those prisoners. Those prisoners he explicitly tortured were few. They included Khalid Sheik Mohammed. KSM and bin Al Shibh were known to be involved in the attacks but were stupidly tortured anyway. Obama can't do anything about that. It wasn't his fault.

Now, under our law, those two would be released because huge portions of the evidence against them was obtained under torture.

I will predict this: The President of the United States will be Sarah Palin and her VP will be Michelle Bachmann if KSM is relased.

Is that worth letting them go in the name of justice?
posted by Ironmouth at 2:00 PM on September 23

Ironmouth: "Is that worth letting them go in the name of justice?"

You may have noticed that the statues of Justice in our courthouses depict her as blindfolded.
posted by Joe Beese at 2:03 PM on September 23 [1 favorite]

I took office at a time when many around the world had come to view America with skepticism and distrust. A part of this was due to misperceptions and misinformation about my country. Part of this was due to opposition to specific policies and a belief on, on certain critical issues, America had acted unilaterally without regard for the interests of others.

This sounds like legalese for 'I know you thought I was a prick, but I really wasn't.

I think you'd do much better if you just let the statement speak for itself. Because it says what it says, not what you want it to say. Nowhere does it say anything about being a prick but really wasn't. It is a simple statement of fact. Part of the opposition to the U.S. was based on misconceptions and misinformation. Part of the opposition was based on opposition to specific policies. And part of it was based on the belief that on certain critical issues, America had acted unilaterally without regard for the interests of others.

Your adding of editorial comments does not change the actual words the President used.
posted by Ironmouth at 2:05 PM on September 23

Ironmouth: "Is that worth letting them go in the name of justice?"

You may have noticed that the statues of Justice in our courthouses depict her as blindfolded.

I did notice you avoided the question.
posted by Ironmouth at 2:06 PM on September 23

How do you get: 'I know you thought I was a prick, but I really wasn't. You were just hearing some lies' or 'do as I say'

out of:

Part of this was due to opposition to specific policies and a belief on, on certain critical issues, America had acted unilaterally without regard for the interests of others.

Here is a simplified language translation of what he is saying:

"Under Bush the US acted like a bunch of pricks that thought they could tell other nations how to govern or live and this made you very angry at the US. Under my administration we won't try and tell you how to govern your country, so please don't think we are still pricks."
posted by Pollomacho at 2:14 PM on September 23

Ironmouth: "I did notice you avoided the question."

So much for subtlety.

Yes, Ironmouth, it is worth even your cartoonishly paranoid, hypothetical Palin/Bachmann administration to see justice done.

That you even consider this an open question makes it clear to me that, for you, "justice" means nothing more than "being as fair as possible without being inconvenienced".
posted by Joe Beese at 2:24 PM on September 23 [3 favorites]

Um, Congress does not "enforce" the laws. The Executive Branch does.

I used the term to refer to the process of Congressional oversight reinforcement in the form of review, monitoring, investigation and supervision of the activities of the Executive branch -- which is required to report their activities to Congress (or a security-cleared subset.) If you feel the term is confusing, then please suggest another and I will happily use it instead.

Congress specifically lacks the power to do that. That's black-letter law.
See Dept of Navy v. Egan for an example.

I'm not a lawyer. (And yes, I do realize that you are.) However, it seems to me (as a hopefully literate amateur) that the argument against doing so in the case you cite is that an "outside, non-expert body" cannot make an informed decision on classified matters.

Congress constitutionally lacks the power to do anything other than cut off funding for defense projects.

That isn't entirely true though, is it? Congress enacted FISA in response to reports by the Church Committee in the '70s. The FISA court's role is to review surveillance petitions for intelligence purposes. It prevents the executive branch (intelligence agencies) from taking unilateral action by requiring justifications and personal approval by the Attorney General for counterintelligence warrant requests.

Yet despite the fact that the court was set up specifically to prevent existing, documented abuses of power by the Executive, the Bush administration was able to bypass it. Given all of this, is there no possible way for Congress to set up a system -- such as a judiciary review system similar to FISA -- to establish similar restrictions on the Executive in other areas?

Read a textbook on the U.S. government to get an idea of how these processes work.

Yeah, it's been 15+ years since I took a US government class. I admit that it would probably be a good idea to do so once again. :)
posted by zarq at 2:32 PM on September 23

That isn't entirely true though, is it? Congress enacted FISA in response to reports by the Church Committee in the '70s. The FISA court's role is to review surveillance petitions for intelligence purposes. It prevents the executive branch (intelligence agencies) from taking unilateral action by requiring justifications and personal approval by the Attorney General for counterintelligence warrant requests.

FISA is the Congress regulating the judicial and law enforcement functions of the executive. For example, it doesn't regulate the DOD listening on Chinese military codes or anything like that.

Bush bypassed it and the court ruled he could not.
posted by Ironmouth at 2:40 PM on September 23

That you even consider this an open question makes it clear to me that, for you, "justice" means nothing more than "being as fair as possible without being inconvenienced".

This is what we call a straw man.
posted by Ironmouth at 2:41 PM on September 23

You know what, I linked the CBC coverage of Obama's U.N. speech (the CBC, for those who don't know, is the major news outlet for Canada, that big country to your north). That comments section is chock full of people more or less saying what I've been saying. I found it kind of surprising frankly, and not a little bit interesting.

I thought folks at MeFi might be interested in an alternate view that what your own, ahem, media gives you. Guess not. Marisa & Co. just want to shoot down these viewpoints/readings one by one, and go back to their normal view of the world. So be it.

Gotta say though, it's becoming clearer and clearer to me why we don't see more users here from outside the USA. It's not worth the grief.
posted by stinkycheese at 2:42 PM on September 23

...the CBC, for those who don't know, is the major news outlet for Canada, that big country to your north....

Even if they weren't aware when they clicked, the page does say "Canada" all over it. It's a ".ca" address. The Member Centre defaults to Ottawa if you're not logged in. I think it's pretty obvious, eh? Even to us dumb, geographically-challenged ethnocentric Americans.

The alternate view is appreciated. But folks are entitled to disagree with it, you know.
posted by zarq at 2:55 PM on September 23

It's not worth the grief.

If "people disagreeing with your interpretation" is grief to you, you're setting the bar too low.
posted by me & my monkey at 3:00 PM on September 23

I thought folks at MeFi might be interested in an alternate view that what your own, ahem, media gives you.

The source material isn't the view that our own, ahem, media gives us. It's the president's speech, unfiltered. Your assertion - that Obama was telling the world "do as I say" - was derived from your reading of said source material. When asked to show where you got this reading, you showed it. And people responded, based on our own reading of said source material. It seems your definition of "shooting down" is to disagree with you.

I know you like to make this "Metafilter is US-centric" accusation a lot, and think there's a lot of patriotic chest-beating, blinders-wearing sheep who won't listen to alternate viewpoints on the country. In some cases you might have a point. But in this case, we're talking about how we interpret things a president says, and to throw around charges such as nationality making it difficult to see things clearly, or that we're all listening to what our media tells us is pretty off the mark in this instance.
posted by Marisa Stole the Precious Thing at 3:08 PM on September 23

I'm used to people disagreeing with me, believe me. If that was the limit, I'd have left here years ago.

I know you like to make this "Metafilter is US-centric" accusation a lot, and think there's a lot of patriotic chest-beating, blinders-wearing sheep who won't listen to alternate viewpoints on the country. In some cases you might have a point.

You're right, I do make that assertion (how is that an accusation? You think I'm wrong? Seriously? You don't think the majority of users here are from/living in the US?). I wouldn't say I make it a lot, but yep, that's how I feel.

If the majority of people having conversation(s) are from the US, surely it shouldn't shock anyone if their conversations are US-centric?

I think Metafilter is fantastic, and I wouldn't hesitate to characterize its largely-US-based membership as progressive (relative to the rest of the population, certainly). That's why it sometimes makes me nuts to see even this place be so... regressive?

One thing that could undoubtedly make the site even better would be a broader membership, people from all corners of the world offering their opinions, getting into conversations, and so on. That's my view.

As to this specific thread, I'm going to try and stay away now. At least for awhile.
posted by stinkycheese at 3:36 PM on September 23

Then fucking make some laws, lawmaker.

This is as much as any one administration can do to set policy. The executive doesn't have law-making authority beyond setting its policies. Everyone said, give us a policy. They gave us one. Now it's, "So all you did was give us policy?"

No people are saying that the policy doesn't go far enough. Obviously they would be happy of the government followed their interpretation of the law.

How is is Leahy supposed to restrict this in a senate that voted overwhelmingly for the Protect America act, the PATRIOT act, etc. More then 60 senators don't give a damn about civil liberties and without the Obama administration supporting changes they wouldn't happen in the senate.

Let me be very plain here: George Bush put Obama in this spot by torturing those prisoners. Those prisoners he explicitly tortured were few.

That's not an excuse.

I will predict this: The President of the United States will be Sarah Palin and her VP will be Michelle Bachmann if KSM is relased.

Who said anything about releasing KSM? WTF are you talking about? Why would he need to be released, he gave up incriminating evidence before being tortured, and I assume there was good evidence of his guilt before he was arrested.

You're obviously just being deliberately disingenuous. In another thread you said we all had to support Obama on getting rid of the public option or republicans would win, bla bla bla. You're invocation of the republicans as a boogyman to get people to support Obama's polices and making up absurd hypothetical imaginary situations is right out of Rove's playbook. And so is being disingenuous, which you are.
posted by delmoi at 4:05 PM on September 23 [1 favorite]

Just wanted to be clearer here, in case you do return to this thread, and then I'll let this unpleasant derail die:

If the majority of people having conversation(s) are from the US, surely it shouldn't shock anyone if their conversations are US-centric?

Specific to your complaint, I'm using "US-centric" to mean jingoist, as in "ethnocentric". I think you're aware of this.

I think Metafilter is fantastic, and I wouldn't hesitate to characterize its largely-US-based membership as progressive (relative to the rest of the population, certainly). That's why it sometimes makes me nuts to see even this place be so... regressive?

It's a pity you see reading the actual words another man uses, instead of inserting some non-existent subtext, as regressive. Your reading of the UN speech was exceedingly weird, and I still have no idea where you derived it from. So we disagreed, it happens. But I thought shooting back that it's probably my nationality making me incapable of seeing what you saw in the speech was over the line. For someone asking others to open their minds, it's a pretty narrow-minded thing to say.

The latter charge that me and others don't want to listen to other points of view is just inaccurate. No one disputes that having other points of view on Metafilter is a good thing. Take a look at the front page and the user base, and you'll see people with interests that span the globe. Disagreeing with someone else's point of view is not the same as being unable to listen to other people.
posted by Marisa Stole the Precious Thing at 4:09 PM on September 23

stinkycheese: "I thought folks at MeFi might be interested in an alternate view that what your own, ahem, media gives you. Guess not. Marisa & Co. just want to shoot down these viewpoints/readings one by one, and go back to their normal view of the world. So be it.

The article you linked to had a few quotes from a longer speech, which I found and read. The "view" my media gives me is not really relevant, because I did not read articles about the speech. I read the speech itself. After doing so, and looking at the article again, I noticed that the article's quotes did not seem to be representative of the entire speech, nor did they seem particularly relevant. Your insinuation that people disagree with you on this matter because they are naive, ignorant, or don't know what Canada is, is ridiculous.

Gotta say though, it's becoming clearer and clearer to me why we don't see more users here from outside the USA. It's not worth the grief.

Well, there is also the fact that the US has more English speakers than any other country in the world. (As far as I can tell, if I am wrong, please correct me)
posted by kathrineg at 4:18 PM on September 23

Well, there is also the fact that the US has more English speakers than any other country in the world. (As far as I can tell, if I am wrong, please correct me)

You're right.

India, Nigeria and the UK come in second, third and fourth on the list, IIRC. Canada comes in 6th or 7th, I think.
posted by zarq at 4:33 PM on September 23

Well, stinkycheese has something of a point, I think, and shows that not everyone is going to throw the "America is Bad/America is Good" switch just because a better and smarter man is in charge. There's lotsa stuff to make up for. Like for example, Obama could have said ". . . Part of this had to do with opposition to certain policies, especially that one a few years back that killed hundreds of thousands of Iraqis."
posted by hackly_fracture at 4:56 PM on September 23

its because Americans don't care enough

And what would show "we care" enough?

A sternly worded letter? Sarcasm? Pitchforks-n-Torches?
posted by rough ashlar at 5:16 PM on September 23

Now, under our law, those two would be released because huge portions of the evidence against them was obtained under torture.
I will predict this: The President of the United States will be Sarah Palin and her VP will be Michelle Bachmann if KSM is relased.

Right, because the court system is filled with honest and uncorruptable judges. And Juries are NEVER swayed by appeals to emotion....they always go with stone cold facts. Oh, and in a court room, there are only facts.

Because of the above true and correct analysis of the court system and the people who run it - yea - best that justice never have a shot at KSM/Al Shibh. Otherwise we'd have just what you said.
posted by rough ashlar at 5:25 PM on September 23

If only there were some sort of group of like minded political representatives who could somehow make laws and oversee the actions of the executive branch so Obama wasn't the sole potentate and arbiter of the state secrets policy.
posted by Smedleyman at 5:31 PM on September 23 [2 favorites]

And so is being disingenuous, which you are.

Disingenous means lying. You call out like that, you back it up, dude. If you can't then don't do callouts like that. Point out exactly, exactly, where something I've said is either not believable (and why it is not believable) or, where I have made a factual error. Because not wanting it to be true isn't a factual error.

Seriously, if KSM is let go, don't you think there will be a backlash? Please give your prediction of the electoral consequences of letting Kahlid Sheik Mohammed, the mastermind of 9/11 go. He was the guy who killed nearly 3000 people on 9/11! How can you argue that middle of the road Americans won't be pissed as all hell and vote against Obama? Because that's what will happen--people want KSM dead, dude. The GOP will run full-throttle dawn-to-dusk ads against Obama for that. Its Willie Horton writ colossal.

Don't you remember what a piece of shit Bush was?

Is it worth all that? I say in human life terms, no.
posted by Ironmouth at 5:33 PM on September 23

Disingenous means lying. You call out like that, you back it up, dude.

Okay.

Seriously, if KSM is let go, don't you think there will be a backlash? Please give your prediction of the electoral consequences of letting Kahlid Sheik Mohammed

Ah, see you just lied about me wanting to see KSM released. I rest my case. Or you lied about the fact that giving Gitmo detainees a fair trial would lead to the release of KSM. Either way.

---

Of course, if you parse the sentence carefully, it's not technically a lie because you didn't actually say I thought KSM should be released, but that was the unspoken implication. And that's what I mean by being disingenuous, it means making statements which conceal the truth, even if they don't deny it outright. For refrence, here's the dictionary definition:

1) Not straightforward or candid; insincere or calculating: "an ambitious, disingenuous, philistine, and hypocritical operator, who ... exemplified ... the most disagreeable traits of his time" (David Cannadine).
...
Usage Note: The meaning of disingenuous has been shifting about lately, as if people were unsure of its proper meaning. Generally, it means "insincere" and often seems to be a synonym of cynical or calculating. Not surprisingly, the word is used often in political contexts, as in It is both insensitive and disingenuous for the White House to describe its aid package and the proposal to eliminate the federal payment as "tough love." This use of the word is accepted by 94 percent of the Usage Panel.

---

Don't you remember what a piece of shit Bush was?

Is it worth all that? I say in human life terms, no.

I would prefer that safeguards are put in place to prevent the problems from happening again in the future. The incredibly stupid thing about this argument is that if the economy goes too poorly, we could end up with a republican in office running on a deficit reduction platform. Did you know that it actually looks like the democrats might lose the house in 2010? It's not because of civil liberties issues, likely because of the shitty economy caused in part by Obama's weak-ass watered down stimulus. He chose bipartisanship over using reconciliation to pass a clearly budget related measure and got a whole 3 republican senate votes.

Anyway, your arguments rely on knowledge that I don't believe is knowable. In particular they rely on pre-knowing the reaction of millions of people to certain events. I don't think it's possible to know. I think that's a fairly reasonable position.
posted by delmoi at 7:36 PM on September 23

If only there were some sort of group of like minded political representatives who could somehow make laws and oversee the actions of the executive branch so Obama wasn't the sole potentate and arbiter of the state secrets policy.

Yeah, it's to bad there isn't.
posted by delmoi at 7:36 PM on September 23

Well, there is also the fact that the US has more English speakers than any other country in the world. (As far as I can tell, if I am wrong, please correct me)

demographics of metafilter (check out regions).

Also, check out the related searches: #2 is "Barney Frank" #3 is "github" and #3 is "ascii art".

here's quantcast data 65% US, 8% UK, 7% Canada, 2.9% Australia and 1.5% India. And here's Alexa data which has 56% US, 78% India, 7.3% UK and 4.1% Canada.
posted by delmoi at 7:43 PM on September 23

The Alexa is 56% US, 7.8% India, yes? Not 78% India.
posted by stinkycheese at 8:19 PM on September 23

The Alexa is 56% US, 7.8% India, yes? Not 78% India.

We're outsourcing comments now. It's much cheaper, and their English spelling and grammar is so much better than American commenters.
posted by rokusan at 8:39 PM on September 23

Yeah, 7.8% India, of course. (which you can see if you click the link)
posted by delmoi at 9:17 PM on September 23

Ironmouth He was the guy who killed nearly 3000 people on 9/11!

This is either provable in a court of law, in which case try him already, or if not just adds defamation to the list of injustices done to the guy.
posted by aeschenkarnos at 11:42 PM on September 23

Hey look at this: Victory on preventive detention law: in context Obama will not seek a new preventative detention law in congress (but continue to keep people in prison under the same legal theories as the bush administration, unfortunately). No doubt this wouldn't have happened if civil libertarians had just rolled over and agreed with Obama on everything, like Ironmouth suggests.
posted by delmoi at 9:43 AM on September 24

when the Obama administration and Congress are at odds, it is Congress demanding greater powers of executive detention (as happened when Congress blocked Obama from transferring Guantanamo detainees to the U.S.). Any process that lets Lindsey Graham, Joe Lieberman and Dianne Feinstein anywhere near presidential detention powers is one that is to be avoided at all costs.

Heh, Obama is trying to hide out from Congress, because they're even more hardcore about allowing overreaching executive powers.

then Greenwald writes, about state secrets policy:

The abuses were coming from the DOJ in the first place; how can the solution possibly be to trust that the DOJ will police itself responsibly in the future? Why shouldn't these abuses be curbed by an act of Congress and enforceable by courts? Yet again, the policy the Obama administration announced -- clearly designed to undermine the perceived need for a law to limit the privilege -- has pretty words in it, but it enacts no real changes.

So expects this same congress to act to curb abuses of executive power? WHY? Did he read the rest of his own article?
posted by kathrineg at 10:41 AM on September 24

This is either provable in a court of law, in which case try him already, or if not just adds defamation to the list of injustices done to the guy.

He was waterboarded. They can't try him in a US court. That's the problem people.

We know he was the guy. Don't you read the papers?

He has asked to plead guilty, despite what his lawyers say. He has confessed to being the mastermind of 9/11, the first World Trade Center bombing, the shoe bombing, the Bali bombing, all of it.

But if we follow our laws, he walks because George W. Bush was an asshole. But who pays the poltical price? Obama. That's at the core of this.
posted by Ironmouth at 11:04 AM on September 24

Let's also be clear about the subject of this post.

This is not a "State Secrets Policy." This is a policy regarding when, in a civil case against the United States, the US may assert the State Secrets Privilege to keep classified evidence from being relased to the public.
posted by Ironmouth at 11:05 AM on September 24

Anyway, your arguments rely on knowledge that I don't believe is knowable. In particular they rely on pre-knowing the reaction of millions of people to certain events. I don't think it's possible to know. I think that's a fairly reasonable position.


Given the uncertainty you beleive in, why don't you err on the side of caution.

And if the Dems are going to lose the House, maybe people better step up and start helping and not back stabbing. Imagine Boehner in charge of the house!
posted by Ironmouth at 11:07 AM on September 24

Ah, see you just lied about me wanting to see KSM released.

But the implication of the policy you support is that KSM gets released. The doctrine is called fruit of the poisonous tree. All the evidence from torture is tainted, and the normal move for the courts in a case like this is to release a tortured suspect. The only reason Obama won't try this guy is becasue it will result in the release of a murderer because of the actions of his predecessor. Obama will get blamed though.

I know you don't want him released. But the policy you support will lead to his release. That's why I reluctantly support it. Otherwise Obama will pay a price he doesn't deserve and the Republicans will be running this country. Based on the last 8 years, I'm going to say that's a really, really bad thing.
posted by Ironmouth at 11:12 AM on September 24

If only there were some sort of group of like minded political representatives who could somehow make laws and oversee the actions of the executive branch so Obama wasn't the sole potentate and arbiter of the state secrets policy.

Yeah, it's to bad there isn't.

As I pointed out upthread, with case cite, the Constitution of the United States says this.

Again this is a policy regarding the authorization for assertion of the state secrets privilege regarding evidence in criminal cases.
posted by Ironmouth at 11:14 AM on September 24

Patriot Act: Obama mum on civil liberties safeguards
posted by homunculus at 11:12 PM on September 24

Ironmouth: I don't see why KSM would need to be released. If you "read the papers", it's pretty clear that we 1) had a lot of evidence gathered before he was caught and 2) gave up a lot of information under ordinary interrogation before he was water boarded.

Since you're a lawyer, perhaps you can explain the legal principle whereby if someone is waterboarded, all the evidence gathered before the waterboarding is also rendered inadmissible.

The idea that proper trials for Gitmo detainees would result in KSM specifically being released is, in my view, absurd.

But if we follow our laws, he walks because George W. Bush was an asshole. But who pays the poltical price? Obama. That's at the core of this.

If he didn't want to "pay the political price" for following the constitution, he could have chosen not to run for president.
posted by delmoi at 5:44 PM on September 25 [1 favorite]