Court Rejects Obama Admin's State Secrets Claim

[mod mom]

Court Rejects Obama Admin's State Secrets Claim
By Zachary Roth - April 28, 2009, 2:29PM
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.

-snip

http://tpmmuckraker.talkingpointsmemo.com/2009/04/court_rejects_obama_admins_state_secrets_claim.php

The Constitution Project applauds the decision:

http://www.constitutionproject.org/NewsDetail.asp?id=371

[Windy]

1. Those cases were started when the Bush administration was in power.

As the DOJ represents the government, it had to assume the defense. Just an FYI.

[mod mom]

2. So are you saying that the Obama Admin had to keep the same position?

Here is what the Constitution Project says:

"Before the February oral argument in the case, the Constitution Project called on Attorney General Holder to reverse the litigation position previously taken by the Bush administration in this case, and to consent to have the trial judge review the evidence at issue.

“Although the Justice Department failed to change its position in this case and recognize the role of the courts in reviewing state secrets claims, we are pleased that the court has now required such a review. We call on the Justice Department to follow the Ninth Circuit’s ruling, and permit the case to proceed,” added Ms. Franklin."

[Supersedeas]

11. at what point can a new Administration effect legal change that we can believe in?

[LooseWilly]

18. At a point where it judges

... that it can afford the political costs of doing the right thing?

[Supersedeas]

22. that appears to be the case, LW

[hugo_from_TN]

6. Wrong

The DOJ is run by the Attorney General nominated by and reporting to President Obama. They did not have to assume the same stance, they did so intentionally.

[BR_Parkway]

8. Not to mention - a court rejection of a flawed argument keeps many

people still backing Obama, even if he has to abide by what the Court says. The GOP gets one less thing to attempt to smear him (and the rest of the D's) with.

I think this is one of those cases where he's bound to see it through, but has recognized that the battle may be better won by an ally (Court) rather than the Administration

[mod mom]

15. The GOP has shown they don't want to work in any way w us so it's worthless

to make concession towards them. Isn't the 9th circuit where Baybee serves as a judge?

[thereismore]

3. Obama, I love you, but you deserved that one. nt

[Skidmore]

4. They played out the hand dealt them and established the precedent

in the law. Obama and his DoJ did well.

[mod mom]

5. This will make Russ Feingold happy as he gave Obama a D over state secrets stance.

Feingold grades Obama well, except on secrecy
By J. Taylor Rushing
Posted: 04/28/09 11:32 AM

Sen. Russ Feingold (D-Wis.) on Tuesday released a report card-style review of the Obama administration’s progress in overturning President Bush’s controversial national security measures, giving President Obama high marks for most actions except for a “troubling” use of secrecy.

Feingold, a member of the Intelligence Committee and chairman of the Judiciary Committee’s subcommittee on the Constitution, gave the highest marks for Obama’s renunciation of Bush-era practices such as harsh interrogation techniques and resistance to Freedom of Information Act requests. Those practices all received “A” grades.

“The difference between this administration and the Bush administration is night and day,” Feingold said in a morning conference call with reporters.

However, Feingold was harsh in his judgment of Obama’s “repeated assertion” of state secrets — a legal defense the administration has invoked three times in court to resist the release of information. That practice earned the lowest grade in Feingold’s report, a “D.”

-snip

http://thehill.com/leading-the-news/feingold-grades-obama-well-except-on-secrecy-2009-04-28.html

[backscatter712]

7. Seconded on that.

The whole state secrets thing stunk to high heaven, and I'm glad it got shot down.

[DevonRex]

14. He got the decision he wanted. Chess...

[tbyg52]

9. Good. nt

[fascisthunter]

10. me thinks they knew this would happen

not just hoping folks...

[Vidar]

12. Good. Obama was dead worong on this.

[ColbertWatcher]

13. Good. k+r, n/t

[RufusTFirefly]

16. More sniping from the sidelines?

Just like that ungrateful Feingold character.
Russ has obviously polluted the courts with his agenda

:sarcasm:

[tekisui]

17. THis could be another calculated move by Obama.

Rather than look partisan and vengeful, have the courts force him to change. He may have know it was going to go this way. And, he comes out(again) smelling like a rose.

[Spike89]

19. Invoking presidential authority to end things won't work

This seems a no-brainer to me. The problem (OK, one of the problems) with the entire Bush administration is that they insisted on powers and quasi-legal procedures and were careful never to let them be directly challenged in court. Obama could easily have stopped this, he can sign all the presidential decrees he wants, but that is exactly what is wrong right now. A presidential signing statement, directive, or memo of understanding can and will be simply overturned by the next corrupt administration. The government needs to make the courts implicitly limit and define the powers of the presidency.

[soryang]

20. Judge Walker ND California already recognized that secrets

...privilege does not necessarily require dismissal. He ordered that two plaintiffs attorneys in Haramain v NSA should be given a TS SCI clearance but Obama position is that officers of the court participating in a national security lawsuit are not assisting in an important government function. Therefore DNI has refused to grant the clearances claiming it is solely the prerogative of the executive branch to make this determination. That decision was on Feb 29. Don't know current status. Does anyone here?

Obama obviously favors the secret government that runs everything no matter who is in power. He has done nothing to end the asian wars but in fact has expanded them. HE is using the state secrets privilege improperly as a pretrial dismissal tactic to defend NSA dragnet surveillance of all American communications, which is still ongoing. What will be the democratic controlled Congress' excuse now for spreading war throughout central Asia?

[TimesSquareCowboy]

21. The case that established state secrets in the first place turns out to have been

just a cover up of negligence by the Air Force, which invoked state secrets to squash a suit by the widow of one of the men who died in a plane crash.

[BuyingThyme]

23. I missed this yesterday. Thanks for keeping it kciked.

kcik