It is surprising that the DOJ did not at the very least ask for a postponement to reconsider its petition and how to deal with the blowback.

As I was guessticulating earlier, the connection w/ foreign governments is a plausible basis for pleading the privilege.

I would be very disappointed however to see it pleaded with the goal of protecting the U.S. itself from embarrassment, however, which seems to've been a traditional object of the privilege.

Shouldn't the proper response of a court if the government asserts the state secrets privilege to enter a defaul judgment against the government and grant the remedy the plaintiffs seek (unless the remedy itself exposes the state secrets)? I suppose that could lead to abuse, but the notion that the government can just say "state secrets" and get the case dismissed outright seems, well, abusive in and of itself.

I don't see the difference between this case and partial birth abortion. In both cases a non-person temporarily becomes a personhood en route to termination or similar disposition. In both cases the painfulness of the termination procedure involved is simply irrelevant.

Nothing in the Supreme Court's partial-birth abortion jurisprudence has even remotely suggested that a government can be required to prohibit such procedures. And the painfulness of the procedure to the terminee may be constititionally relevant to whether the government or choice-maker can voluntarily refrain from such procedures, but the whole thrust of the jurisprudence has been whether the Constitution permits a prohibition -- there hasn't been a hint of a suggestion that it ever requires it.

A non-person prior to entry into this country is not logically different from a non-person prior to birth. If temporary entry and its resulting temporary personhood constitutionally precluded termination actions, we wouldn't be permitted to repulse an invasions, and the Supreme Court's partial-birth abortion jurisprudence would be stood on its head.

I find it utterly hypocritical that people could claim there is no rational justification for prohibitions on abortion, yet not claim there is justification for terminations of this sort, but claim that the identical reasons -- the exact same claims the practices involved are barbaric and contrary to our tradition of civilized humanity and beliefs in universal compassion for "the whole human family" -- are nothing more than religious dogmas violative of the separation of church and state in one case, yet legitimate bases for government action in the other.

If these types of arguments are not grounds for government decision-making in the one case, they can't be grounds in the other. And if are willing to admit they can be grounds for government decision-making in the one case, we ought to admit this in the other.

Otherwise, the religious status of an argument would depend solely on whether one happened to agree with it or not -- that is, whether or not one shared the religion. The question of whether an argument is a religious argument or not has to depend on criteria different from whether one thinks the argument correct or incorrect.

It's argued that we have different secular interests -- that, for example, our behavior effects our relations with other countries. But if the real interest is not in what we do as such but in what others know about what we do, that interest could be perfectly well met with secrecy, i.e. privacy -- and courts intruding into these matters and publicizing them would be interfering the privacy interest involved. After all, this is why, in Doe v. Bolton, the Supreme Court held that it was unconstitutional for judicial bodies to interfere with abortion termination decisions. Are the reasons for judicial interference any different here?

The word "person" used in the Bill of Rights no more has "extraterritorial application" than it has "prenatal application". If lack of application of the word "person" turns compassion arguments into religious dogma in the one case -- if these arguments are constitutionally legitimate only if applied to persons -- this ought to be true in the other case as well.

Unlike most state secrets questions, the distinction in this case is that the "secret" in question is not secret -- US officials, other governments, journalists, and private employees (including one from Jeppesen) have already revealed the information. By contrast, in cases like Reynolds the nature of the electronic equipment was still secret. The government could avoid revealing any national security secrets -- what country the person was flown to -- by stipulating that it transported the defendants to a third country where they would be harshly treated to garner information. Of course, if the "secret" is that it was sending people to be tortured, it is clearly using the privilege to hide illegal acts, not preserve secrets qua secrets.


Jeppesen might have a defense that it only provided information to the US, not that it committed the bad acts. Of course, if someone knows that a person intends to break into a house and provides that person with directions to the house, could he be civilly liable for having done so?

Jeppesen Dataplan didn't torture anyone.

Neither did Eichmann. What is your point?

GODWIN'D. Boy, that didn't take long. Are you suggesting, sir, that the travel corporation is really the evil mastermind behind the whole rendition process? Have they been holding secret meetings and dispensing orders to national intelligence agencies? Perhaps they've invented a mind ray that they are using to control POTUS to instigate rendition as a method of increasing their business opportunities?

Or is it more likely that the company has a larger contract with said intelligence organizations, and routinely performs these services without any particular organizational knowledge as to the nature of whatever missions the operatives are on? By your logic, if Bush were to be tried for "war crimes" as the Code Pinkers advocate, then every company that legally participated in the transport of US troops to the middle east would be financially liable for any damages inflicted by those troops?

This is reaching. This is logical soup, a morass of politics and greed masquerading as legal opinion.

Are there pre-Bush precedents for dismissing suits altogether (the alternative being to exclude certain evidence) based on the states secret privilege?

As c.l.ball points out, an additional issue is that at least the big picture "secrets" in this case are not secret, they've already been revealed by the press, other governments, etc. (Although there likely are some details that are secret it's hard to imagine how those couldn't be handled by invoking the privilege merely with respect to the unredacted versions of certain documents, etc.)

Finally, as Anderson hints, a third problem here is that the government may be seeking to protect itself from liability (rather than legitimately protecting secrets) by invoking the privilege.

There probably is someone somewhere who thinks the states secret privilege should be entirely revoked, but e.g. even such civil rights "extremists" as the ACLU and Glenn Greenwald support a limited states secret privilege. But if we are going to accept it in this instance, it seems to me that's pretty much a Bush-style blanket acceptance of the privilege at least whenever a foreign government is involved.

If the Obama DOJ is going to review every case where state-secrets privilege is asserted, I must wonder what the criteria will be for distinguishing "good" cases from "bad" cases, and if the government will articulate that criteria.

As someone who thinks the privilege has grown malignantly, I would favor legislative action to define some limits. But the political constituency for such reform seems to be shrinking even more, with the establishment circling into the mode of "look forward, not back." It seems to be in no one's political interest to pursue disclosure of ugly facts.

I think Orin's point about institutional interests is a good one. I also wonder if the Leahy-Kennedy-Specter bill reported last year could get 60 votes in the current Congress. (For those who prefer preditested press handouts, here is Leahy's) If it passed, would Obama sign it?

Tony Tutins, the difference between Jeppesen Dataplan and McVeigh's travel agent is Jeppesen Dataplan likely had a good idea of what was going on and McVeigh's travel agent very likely did not. Is it really necessary to point this out?

Orin Kerr:

Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult.

Is there any reason to think this concern couldn't be addressed by an evidentiary use of the privilege? And BTW Orin, is it definitely true that the plaintiffs seek to expose still secret details of the program? Might they not be able to make their case purely based on the public record?

Thomas Holsinger,

I am not familiar with any claim that the 9/11 plot was aided by the disclosure of classified evidence because of a previous administration's failure to invoke the state secrets doctrine. If that is the insinuation you intended to make, could you provide a cite?

The Framers saw the explicit need to grant Congress authority to hold parts of their deliberations secret, proving that the power to keep secrets DOES NOT implicitly exist in a government such as ours. Where is the equivalent grant for the Executive and/or the Judiciary?

The Framers saw the explicit need to grant Congress authority to hold parts of their deliberations secret

In sharp contrast, the Framers saw the explicit need to make the President disclose information:

He shall from time to time give to the Congress Information of the State of the Union

Wouldn't being raised in Mississippi suffice?

I was actually the victim of extraordinary rendition to Mississippi, an act perpetrated on a minor, no less.

My suit likely would've been dismissed under the "parental privilege" doctrine however.

A doctrine which I confess, having succeeded to my predecessors in exercising such authority, I am now inclined to defend. O the hypocrisy!

Interlocutor,

I suggest you read Amy Zegart's Spying Blind: The CIA, the FBI, and the Origins of 9/11.

Professor Kerr's opening post assumes that security policy is suis generis and not associated in any way with threats by foreign enemies, i.e., he is willfully blind to the major difference between war and peace.

You and he are engaging in sophistry.

I agree that we need a legislative solution. I'm confused, though, on why you feel that the political constiuency for reform is shrinking. Isn't enacting a statute that defines how the privilege may be exercised in the future "looking forward"?

Yes, if you literally believe that euphemism. Yours is a good argument to make in the court of public opinion.

But I worry that many of those who say they want to look forward instead of back really mean, "Let's not go there at all." I am not optimistic about 60 senators doing anything to empower those claiming to be aggrieved by rendition, torture, illegal wiretapping, etc. to actually obtain redress in court.

It is politically inconvenient. The establishment majority has obviously made a calculation that picking that fight with the strong minority is not in the majority's interest.

BTW, I have been looking for a link to the government brief in the Jeppesen Dataplan case, to see in detail what the Obama DOJ has bought into. Does anyone have such a link?

Professor Kerr,

The error was ignoring material context. You said:

"If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case."

We weren't at war during the Clinton administration. We were attacked after a little more than eight months into the Bush administration.

You did not compare DOJ policies on executive privilege during the first eight months of the Bush adminisration, when we were not at war, to those during the Clinton administration. This like comparing the civil liberties policies of the James Buchanan administration, before the Civil War started, to those of the Lincoln administration when we were at war almost the whole time.

You simply repeated a purported "impression" by unnamed others that Bush administration policies were extreme compared to those of the Clinton administration while ignoring the bloody obvious fact that the murder of several thousand American civilians, at home, by foreign terrorists created an extreme situation meriting new different and arguably extreme measures, at least by comparison to those which failed to protect us on 9/11.

War and peace are not the same, except to those peddling a point of view.

And here the DOJ policies of the Clinton administration did lead directly to 9/11. This raises immediate and pressing questions about the judgment of former Clinton DOJ personnel, back in power as Obama administration DOJ personnel.

Just an Observer:

I am not optimistic about 60 senators doing anything to empower those claiming to be aggrieved by rendition, torture, illegal wiretapping, etc. to actually obtain redress in court.

I've got a fair amount of confidence in Senator Leahy and even more confidence in Senator Feingold. I'll be disappointed if they don't push this issue. If they can get all the Democrats on board, and Al Franken is seated, then Senator Specter's vote alone is enough for cloture, even if no other Republicans support the bill. (I would hope for more Republican support than just Senator Specter though; there really is no good reason for this to be a partisan issue.)

I am cyncial too about "looking forward, not back." Nonetheless, a promise to correct the problems moving forward, by doing things like enacting this legislation, is implicit in that phrase.

(Completely off topic: When did it become generally accepted that bills need 60 votes to pass the Senate? I always thought that the minority party was expected to show discretion in when to filibuster, consistent with the collegiality of the Senate.)

Senator Feingold, at least, is still pushing for the legislation:

From Greg Sargent:

But that’s unlikely to satisfy Feingold, who reiterated in his statement to me that he’s pushing for new legislation to “give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct.”

NTB24601: I've got a fair amount of confidence in Senator Leahy and even more confidence in Senator Feingold. I'll be disappointed if they don't push this issue. If they can get all the Democrats on board, and Al Franken is seated, then Senator Specter's vote alone is enough for cloture, even if no other Republicans support the bill. (I would hope for more Republican support than just Senator Specter though; there really is no good reason for this to be a partisan issue.)

I agree that it should not be a party-line issue, but since the immediate target of any investigation is likely to be actions committed during the Bush administration, I expect the GOP unity to hold. However, without a GOP White House to bully him, Specter may well stick with his cosponsors. As for the Democrats in Congress, remember that in the years up through 2008 they showed little courage whenever the other side waved the bloody shirt of the "war on terror." Yes, Feingold will press. Recall that his party made him a pariah in 2006 over his proposal to censure Bush.

Of course, since there is a Democratic administration in power, and the statute might be directed Obama's way later, the position his DOJ takes will be significant. (Do not entirely discount the ironies of Orin's Postulate.) In the short run, with Bush actions the presumed target, Obama seems to perceive that to minimize dissipation of his political capital, it is better not to pick a fight with Cornyn, Bond, etc. by facilitating investigation or adjudication in any forum. Witness the President's brush-off last night of Leahy's "truth commission" proposal.

But perhaps I'll be pleasantly surprised for a change.

Professor Kerr,

You have a point, but bear in mind that it is also possible for messengers to tacitly express approval of the messages they bear.

Thomas Holsinger,

True, but bear in mind that it is much more likely that an Internet commenter will wrongly tag a blogger for taking a position he didn't take, and then, in the face of correction by the blogger, stubbornly pretend he never made an error rather than simply admit error and apologize for it.

Professor Kerr,

It depends on whether I think I was wrong.

“… This is Kaigi Yabu, Lord Izu, Suruga and Totomi. Neh?” He looked directly at Toronaga. “What am I accused of, Sire? Helping ninja? Ridiculous! What have servants’ fantasies to do with me? They’re liars! Or this fellow – who implies something that can’t be proved and I can’t defend?”

“There’s no proof, Yabu-sama,” Toronaga said. “I agree completely. There’s no proof at all.”

“Yabu-sama, did you do those things?” Hiro-matsu asked.

“Of course not!”

Toronaga said, “But I think you did, so all your lands are forfeit. Please slit your belly today. Before noon.”

Orin.
Is the characterization of Holsinger's position "genital slicing...is okay" and so forth in good faith?