Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases:
I didn't know that you could live-blog a federal court of appeals oral argument, but if we know anything about the Ninth Circuit, it's that everything is possible! To prove the point, Ryan Singel and David Kravets live-blogged today's oral argument in the NSA state secrets cases.
Their take: "On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers." A short-term victory, yes, but the label "Pregerson, Circuit Judge" will be sure to draw some attention on a cert petition. The audio of the argument should be up on the Ninth Circuit's website by tomorrow, but it's not up as of right now.
Their take: "On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers." A short-term victory, yes, but the label "Pregerson, Circuit Judge" will be sure to draw some attention on a cert petition. The audio of the argument should be up on the Ninth Circuit's website by tomorrow, but it's not up as of right now.
Related Posts (on one page):
- Ninth Circuit State Secrets Case:
- Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases:
Let's wait and see what the Court says--and then discuss whether its decision has merit.
I'm curious: What is your evidence that there is a "working majority" of Justices that will oppose everything the Bush Administration does no matter what the facts are?
He just said it would attract a certain attention on the cert. petition.
Not like the oral argument in state court years back, where I am told the appellant's argument began:
Counsel: This is an appeal from a decision of Judge ____ ....
Appellate Judge: And what are the other grounds for appeal?
Apparently during oral argument the Government several times made statements that, if true, would seem to make the cases go away. The panel kept asking the Government attorneys in response: would the Government be willing to swear under oath regarding the veracity of that statement?
And the Gov't said, "um, no."
Not necessarily. The losing party can choose en banc, or choose to go directly to the Supremes.
If the government loses (which seems to be the concensus view), I think they'll go directly to the Supremes. There's no reason to think that the 9th Circuit, en banc, would come out any differently.
The reality is that if the State Secrets claim applies to anything, it would apply in this case. Why? Because the primary purpose is to keep that information away from known and designated enemies of this country.
So, the suggestion that administrations make all sorts of State Secret claims is unavailing here, since this is not a case of something innocuous that likley is irrelevant to national security, but rather risks disclosing information that would allow enemies of this country to communicate more effectively with each other with less chance that we could intercept the communications. It is thus much closer to the knowledge of what houses our troops are going to hit tonight in Iraq than what the VP had for lunch yesterday.
And courts typically don't rule on hypothetical borderline cases when the case at hand is not a borderline case, and if they do, it is typically dicta.
Must disagree, Old. The advantage of seeking en banc review is not to *win*, but to *delay*. The feds want to spin these cases out until after Election Day 2008.
A "yes" or "no" answer is a state secret? Only if you're hiding something.
The only "secret" at the time was whether the government had a warrant at the time. The known fact that the US can and does wiretap some phone calls cannot legitimately be called a secret so the government is merely arguing that the **authorization** or **legal authority** is a state secret. Pure balderdash.
...and you haven't addressed the issue of what the government cannot claim to be a state-secret. You cite the idea that as long as the alleged crime is declared an "ongoing" operation then it is exempt from prosecution--and idea that is as pernicious as it is untenable.
I don't follow your argument, Bryan DB.
My argument is that the government really doesn't have any interest in honestly approaching this case. Giving a simple "yes" or "no" answer to Pregerson's questions does not implicate national security in any way, and only serves to harden the judges against the government's position. Say the answer is "yes"; does that disclose some essential element of the program? Of course not, it would at most disclose that they went through a process with a FISA court that we already know about. Say the answer is "no"; would that disclose an essential element of the program? Of course not, but it would show that the government acted illegally. Therefore, rather than giving honest answers, the government lawyer blows smoke out his butt.
As Bryan DB has clarified, the government argues that whether they obtained or have to obtain warrants is classified. To call such a "state secret" is ridiculous.
This is in regards to spying on people **inside the US**, the issue of a warrant is very relevant to the constitution and cannot reasonably be said to be a "state secret." What's next? Claim that the constitution is a "State Secret?" I see no functional difference.
They granted a rehearing on a cert. denial for the first time since Hickman v. Taylor. That takes five votes. Further, even when cert. was originally denied, Kennedy basically said in a concurrence that they were denying cert. because they expected the government to follow the law. And all this comes on the heels of Hamdan.
At this point, Kennedy has committed himself to the position that he is the only thing that prevents the Bush Administration's expansive theories of wartime executive power from becoming reality.
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