How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error

[struggle4progress]

38. It's impossible to know exactly what the statements are arguing without context

Tyler may be saying the plaintiff has not right to challenge the very existence of the No-Fly list, rather than that the plaintiff has no right to challenge her placement on the No-Fly list. Everyone seems to agree the plaintiff was improperly on the No-Fly list but was removed from that list in 2005

Salvator might simply be saying TSA opposes disclosure of the identities of persons on the No-Fly or SSSS lists, citing TSA regulations. If those regulations were properly promulgated pursuant to law not found unconstitutional, typical US jurisprudence would give significant latitude to the agency in this regard. Unless one wants to argue that the No-Fly and SSSS are fundamentally unconstitutional, there is no obvious and intrinsic flaw in Salvator's opposition to "providing terrorists with information that may reveal which of their members have been compromised, and which of their members may board an aircraft without any form of enhanced security"

Freeborne could be arguing that allowing the plaintiff to a full hearing, on alleged abridgment of her alleged right to travel internationally, would require the Executive to disclose privileged information; to understand the exact argument here, it would be necessary to know exactly which claim of the plaintiff was under discussion. If, for example, this was response to denial of a visa to plaintiff, then it is important to note that in the history of US visa denials, the courts have generally granted the Executive wide latitude and have not forced the Executive to justify such decisions

Holder appears to argue, as a matter of principle, that the FBI cannot reasonably be compelled to disclose whether an individual is under investigation by the FBI, on the grounds that such disclosures may have the potential to reveal whether other individuals are under investigation. This is not a novel or unusual stance for an investigatory agency to take

Clapper appears to say privilege "precludes .. any response .. that would .. disclose classified information ..; the sources, methods, and means by which classified information is collected; and information which would confirm or deny whether .. plaintiff or .. other individual is in NCTC’s ..database.” The court apparently recognized this argument, as it managed to reach its decision without using classified information, without disclosing sources, methods, and means by which classified information is collected, and without confirming or denying whether anyone was in the database

The Senate, of course, has mechanisms for dealing with Executive witnesses it regards as in contempt of its investigations or misleading before its committees, ranging from informal letters signed by groups of Senators, through official requests for prosecution for contempt or perjury, to trial and removal after impeachment by the House. Mutual courtesies between the House and Senate, however, will probably preclude a House impeachment vote on the sole basis of alleged impropriety of the accused before a Senate committee; and therefore it would be a Senate responsibility to request Clapper's resignation, or prosecution, for alleged contempt or perjury before a Senate committe

The Court similarly has mechanisms or dealing with Executive witnesses it regards as in contempt, although the plaintiff's request, to call Clapper as a witness, seems not to have been allowed by the Court, so that reference to such mechanisms would be moot
Finally, let us turn to Clapper (not one of my favorite people).