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Court Rejects Obama Admin's State Secrets Claim
A court has rejected the Obama administration's claim of the state secret privilege.
Via the blog Legal Pad: A three-member panel of the 9th circuit Court of Appeals ruled this morning on a request from the government that it dismiss the Jeppesen case, which focuses on the CIA's extraordinary rendition program.
From the decision:
Acceding to the government's request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered."
In other words, asking the court to dismiss the case at this point puts the cart before the horse. The state secrets claim "must be invoked during discovery or at trial," not at the pleadings stage." (court's itals)
The Jeppesen case is one of the three national security cases in which the Obama administration has invoked state secrets (the other two cases involve warrantless wiretapping). This despite the fact that, as a candidate, Obama criticized President Bush for too frequently invoking the privilege.
The effect of this decision on the other two cases remains unclear.
Late update: The Constitution Project, a nonprofit group that supports checks on the power of the executive branch, applauds the decision. From their press release:
"The Ninth Circuit's decision recognizes that the state secrets privilege is not an immunity doctrine that can enable the Executive Branch to shield its conduct from any judicial review," said Constitution Project Senior Counsel Sharon Bradford Franklin. "We are thrilled that the decision preserves the role of the courts as an independent check on the Executive Branch's conduct."
Josh
Zachary
Of course when you disagree with one appellate court it is heartwarming to know that you can always go to another... and another... until you find the verdict you want...
April 28, 2009 2:39 PM | Reply | Permalink
Maybe they can try different circuits in future cases, but not in this one. Unless DOJ can get this question certified for interlocatury appeal, they're stuck with that decision.
April 28, 2009 2:59 PM | Reply | Permalink
*waves a little American flag*
This is a morning for good news.
April 28, 2009 2:48 PM | Reply | Permalink
A well deservered Congratulations to the Ninth Circuit Of Appeals in their Bravery, Fidelity and Integrity towards our US Constitution, Bill of Rights and within our Declaration of Independence of Life, Liberty and the Pursuit of Happiness for All.
-------------------------------------------------
Now, hopefully this will allow for the faith for the hope for the 'Change We Can Believe In' for the Leadership to begin to correct the following of just some Observastions;
'Impeachment is off the Table' Don't foget Cardinal US Senator Edward Kennedy very Main Stream Media concurring support of 'Impeachment is off the Table' 'the Country cannot take it'.
Also, check US Senator Grassely Votes in the US Senate.
Also these US Senators are also highly noted and acknowledged as so-called 'Whistleblower Advocates' and Co-Sponsers of past Whistleblower Legislation.
Is anyone in our Main Steam Media or any Media Reading and Listening?
Where is Ms. Amy Goodman, 'DemocracyNow.org' Radio and Television Show 'Please call or e-mail us with Story Ideas? and/or 'Connect the Dots' Leila Garrett with Congressman Dennis Kucinich as a frequent regular guest?
Is this some type of Brainwashing and with (ongoing Nixon Pardons and non-prosecutions, Regan and Bush era(s) of non-prosecution!! ecetra!!) and/or with a complete lack of respect for God, Man and Country and within our US Constitution, Bill of Rights and Declaration for Life, Liberty and Happiness for All.
With continued appearance to suggest to ignore (Illegal) War(s), murder(s), wrongful death(s), torture(s) (Domestic and International), Loss of Habeas Corpus, Wrongful Wiretaps, Wrongful Secrets, (massive) Corruption, seemingly many and/or all 'Oversight and Accountability' applications and endeavors thereof, ecetra.
Is it correct that it is the same complicit and/or continuing 'Pack of Lies' and/or 'Change We Must Believe In' from the entire Administrative Leadership and not the faith for the hope for the 'Change We Can Believe In'?
Is this seemingly a Dispicable, Sad, Appalling and Disgusting comprehension and/or without the ability thereof??!!
Please recall 'Dr. Martin Luther King many statements on Complicity and in-action and/or avoidance of proper and forthright action.'
Also, Hopefully the Leadership will immediately (THIS WEEK!!!!) apply and implement the 'Change We Can Believe In' with the immediate US LEGISLATIVE, FULL FLOOR VOTE of the Identical S1385/HR985 Bills 'FEDERAL EMPLOYEE WHISTLEBLOWER PROTECTION ENHANCEMENT RESTORATION ACT' and not the continued support for the continued intolerable Corrupt Policies, Practices and Procedures of the previous Administration(s) and Leadership(s) thereof, as applicable!!!!!
As you may recall our entire US Executive, Legislative and Judicial Branches of Government seemingly have always fully supported this 'Veto Proof' Bill, including as recently as these Identical Legislative Bills of S1385 in 2003/4/5/6 and HR985 in 2007/8/9.
Where is/are Judicary Committee Chairpersons John Conyers !! and House Speaker Nancy Palosi !! on the (ongoing ??!!) 7/2008 'Presidential Powers and Its Limitations'!! Empeachment Hearings !! (Testimony as the most important Hearing in the past Century!!) which should seemingly include Negraponte, fromer President Regan era et all (Wolfowitz?) 'School of the Americas' now 'The Institute of .....' ??!!!!!!!!!!!!!!!!!!!!!!!!!
April 28, 2009 2:54 PM | Reply | Permalink
Scrolling past your rants is laborious. Must you post lengthy incoherent OT rants in every thread?
April 28, 2009 5:40 PM | Reply | Permalink
I am appreciative of the privilege that TPM has accomodated its readers, especially as I have a wrongly decided 'Whistleblower' Case that is one of two cases in the US Federal Judges Handbook and is and/or may be used at will to block and negate and and all future and presumably past Federal 'Whistleblower' Cases.
Aside from you laborious complaint, any suggestion to comply with your rant and length complaint would be helpful.
Thank you for your time and consideration.
April 28, 2009 5:53 PM | Reply | Permalink
should read.......any and all future.......
April 28, 2009 5:57 PM | Reply | Permalink
IANAL, but as I read the ruling, it seems more procedural than substantive. That is, it seems to be saying, "Well, you may yet be able to argue 'state secrets' successfully ... but not just yet." I'll take any good news, but I'm not jumping up and down on this one just yet.
April 28, 2009 4:27 PM | Reply | Permalink
Correct. But this at least keeps it within the court. If they went the other way there would be zero judicial review over anything the Executive branch declared a state secret. That would be a complete destruction of our three legs of government branches and separation of powers.
I was actually scared shitless the court might fuck this up and rule the other way.
April 28, 2009 5:38 PM | Reply | Permalink
This procedural ruling is very important, in that it holds that the executive may not merely wave the wand of state secrets to make a case go away. Indeed, the decision may be leaving the basis for a decision that the assertion of the state secret privilege may leave the government without a defense, and lead to factual findings in favor of a plaintiff in the absence of the evidence claimed to be a necessary secret. Additionally, this sets the stage for judicial review of the facts underlying the claims, that may lead to admission of facts inappropriately claimed to be privileged, or an instruction to the factfinder of factual statements that address the claims before the court without revealing any truly necessary protected material. This is, IMHO, big.
April 28, 2009 7:58 PM | Reply | Permalink
"A three-member panel of the 9th circuit Court of Appeals"
Would that by Jay Bybee's current place of employment?
Deciding (in courtroom terms) to coverup his - Jay Bybee's - legal.....indiscretions???
April 28, 2009 4:35 PM | Reply | Permalink
There are like 29 judges on the 9th circuit. There is no reason to think they would look out for each other.
April 28, 2009 5:05 PM | Reply | Permalink
Huh?
This makes no sense at all. Summarily ruling the other way would have been covering-up shit. Not this ruling.
April 28, 2009 5:41 PM | Reply | Permalink
Why do I get the feeling that this is okay for the admin? Do they want to get forced into positions? Look at the Memos and the pictures that are coming out. The admin's defense? "We are being forced into it by the court." I am starting to get the feeling this is what they want.
April 28, 2009 5:48 PM | Reply | Permalink
You all do realize that this actually means nothing?
Look, they file a petition and have to have some pleadings. The government cannot invoke the state secrets pledge in their response to the pleadings.
But after that, the trial is set. But to get information at trial you need to discover it. So they send a list of questions or requests for docs to the court you know, like.... "Give us all documents regarding torture."
Then Obama's minions respond with "No. State Secrets."
And the court will say. "Okay, State Secrets. Let's move on to trial."
April 28, 2009 6:18 PM | Reply | Permalink
If the court had dismissed the case on a states secrets argument, then it would have been a big deal. I don't think there was ever much risk of that, and I frankly doubt the administration lawyers were even expecting it to work. But it's still good news the court ruled in the expected way.
April 28, 2009 6:49 PM | Reply | Permalink
Does anyone besides me think it could be an unselfish Obama letting the courts work? If so, then he'd be an historic president indeed! Seriously, imagine him taking it on the chin as president to be forced to hand over the torture documents. Just being an optimist. Imagine the proceedings happening, and Obama trying to continue to "look forward, and let AG Holder and/or Sen Leahy handle that one."
DailyKos
April 28, 2009 7:01 PM | Reply | Permalink
President Obama is letting the Courts work, and leaving change of DOJ policy to Holder, in the future, and in the light of Court decisions. It's not only politically better this way, but legal precedent is better protection than policy change in an executive department.
April 28, 2009 8:05 PM | Reply | Permalink
Until I hear the White House whining about the courts deciding the wrong way and emboldening our enemies and being with us or against us, I am going to assume your comments are spot on. As much heat as Obama took for the torture memos, defense of unilaterally opening up the state secrets lockbox would be politically exhausting.
April 29, 2009 9:05 AM | Reply | Permalink
It is wrong that this means nothing. It means the case continues. It means that the Judges are judging. Judges have been doing a good job for about five years. This is how CHECKS AND BALANCES works. Too bad that the Obama DOJ took the original "state secrets" position they did however.
April 28, 2009 9:24 PM | Reply | Permalink
What I would wonder about is the possibility that by taking this to court, claiming state secrets,and then putting up a halfass defense of said claim,The long term goal might be to prevent this in the future.
If the administration had just said we will just let case proceed, it would have left the opening for the next set of fools in office [and there will be a next set of fools] to do the same all over again.
Sorry if this post rambled a bit but its been a long day.
--Savage
April 28, 2009 9:43 PM | Reply | Permalink
Sunlight is the best disinfectant.
May 14, 2009 2:02 AM | Reply | Permalink