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Senate Proposal To Clarify 'State Secrets' Doctrine
I Don't Believe in Imaginary Property writes "Sen. Edward Kennedy (D-MA) and other lawmakers are pushing legislation to limit the power of the state secrets doctrine in blocking lawsuits. The doctrine has been used as a 'get out of jail free' card in cases like the EFF's warrantless wiretapping lawsuit. This new legislation would make it harder for the administration to invoke the doctrine, and provide new allowances, such as using attorneys with security clearances to enable the lawsuits to go forward even when the issue is appropriately raised." Update: 04/28 16:58 GMT by KD : The New Yorker is running a detailed piece, State Secrets, by Patrick Radden Keefe, about how the use of the state secrets doctrine is playing out in one particular case.
This administration will veto this faster than you can blink.
Is anybody gullible enough to believe that Bush would actually sign a bill that could hold his administration responsible for its crimes?
That'd be a cool job... suave lawyer type during the day, secret agent spy CIA-type at night! Like a corporate Indiana Jones.
Tsunami -- You can't bring a good wave down!
Well, remember that Bush is on his way out anyway. If a Democrat gets elected President, then their administration will be held to a higher standard of accountability through this legislation. So who knows? There's a tiny (tiny) possibility that Bush could conceivably sign such legislation just before he leaves office. He's already gotten away with murder (quite literally).
The thing is, what would you have Congress and the courts do, anyway? The time for action has long passed, and it's useless to now look back in hindsight and accuse them of playing along. Their power to enact change comes from their respective constituencies, and when the people were shaking in their boots over 9/11, that's when the administration struck.
So yeah, the legislation is likely to fail. Yeah, it's probably dead in the water, and as such it's just more politics as usual. But again, what would you have them do? They've been neutered and cowed into submission by a group of very rich and powerful white men and their cronies, who have trampled upon our Constitution with impunity.
I say that, even as a piece of political theatre, the introduction of this piece of legislation is more useful than not having introduced it. Granted it's too little to late to make any REAL difference. But for as low as our nation's so-called "elected" officals have sunk, lip service is all we can get right now.
What, they think they have some kind of power to question the authority of our Decider and Commander and Chief?
Who appointed them as the law makers?
Next thing you know those "Representatives" will claim they can hold the president accountable for lying, breaking the law, and violating his oath of office.
I'd like to see them just try something like that.
Really. I would.
Please.
This seems so obvious; did no one had (the courage to have) that idea before?
That said, "special attorneys" with security clearence are not that good of a solution if they are a small group and no one has to right to check on what they did.
Plus, I would hate to see a whole "secret justice" aside from the normal one. What I mean is that cogress rejected the idea of "secret laws" a while ago, and I wouldn't want the governement to use "secret attorneys" as a way to push that idea again.
Don't take my posts literally; it's just code to control my botnet.
It's about time.
I wouldn't mind seeing the whole concept of "state secret" repudiated. It really has no place in a free society.
If we really have a government of the people, by the people, and for the people what gives some part of that government the right to keep secrets from every other part, including the parts that are supposed to be watching over them and keeping them in check? The very notion should set warning bells off from here to next Tuesday.
Think about it? In what other context would that sort of inversion of ultimate authority be considered even remotely reasonable? If you told your boss that you were working on a project that was so secret you couldn't tell them about it, or any of your co-workers, including accounting, HR, the legal department, and it involved you needing to have building security look the other way while you took things in and out of the building...how long do you think you'd be employed?
-- MarkusQ
This is a privilege that should never have existed. Literally from the case that established it the privilege has been consistently abused. Anything that can be done to reduce or eliminate its use should be done.
If the government truly has secret information that bears on the case, they should have two choices. The first is to follow established legal procedures to present the information off the official record for the judge to make a decision on. And the second is to lose the case.
But they should not have the right to say, "You'll have to trust that we could defend ourselves if we could tell you the full story, but we can't for national security reasons." Because giving them that right gives them the ability to wave a "get out of jail free" card whenever it is convenient. And it is convenient far, far more often than it is true.
Why not just do what they usually do---sign it now and issue a signing statement that says it doesn't apply to the Bush administration.... :-)
Check out my sci-fi/humor trilogy at PatriotsBooks.
Basically, invoking the privilege is fine, but it should mean the government basically loses the case automatically.
So, you can't see anything that President Obama, as he's re-sending Secretary Of State Carter back to have another friendly sit-down with Hamas (who just endorsed Obama - fabulous!), might have a need to keep secret... AND which should be that way? Or should his political opponents be able to sue him for political reasons, and automatically "win" (and what? get whatever they want?) because if Obama were to divulge secret info or methods as used in pursuit of his foreign policy or defense chores he'd be risking lives or breaking promises made to other governments? Just think through the consequences of making anyone who decides to file a suit automatically win if the Commander In Chief doesn't cave in and dole out things that it's foolish to divulge. The Dems need to look past their pathological Bush hatred and consider that they may not like their own guy being unable to support and protect the necessarily covert things that that office's duties require.
Don't disappoint your bird dog. Go to the range.
If a Democrat gets elected President, then their administration will be held to a higher standard of accountability through this legislation.
If a Democrat gets elected President, you can guarantee they'll be held to a higher standard of accountability, period. In particular, all the Republicans who have been giving Bush a free pass pretty much ever since he took office will be all over anything Obama or Clinton does that even appears the least bit improper. Especially if it's Clinton -- their paranoia about that family knows no bounds. "B-b-but he lied about a blow job! That's the worstest thing any President has ever done EVAR!"
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
It stopped being cool to spell things with a K replacing a C in like, 1995. Stop.
You're one of those people who spells Microsoft as Micro$oft too, aren't you?
Random Thoughts From A Diseased Mind (Not For Dummies)
I agree. If the House and Senate feel that what the Executive is doing is clearly wrong, they have a Constitutional remedy for that. Doing anything less is, in the first place, an unpleasant moral compromise on their part, and in the second, a means of rendering the process they seek to stop legitimate.
They should pass a law, a constitutional amendment, or get the Supreme Court to rule, to the effect that the most an officer or agent of the government can do in the name of state secrecy under congressional testimony is to require a closed session for the duration of the testimony (afterwards, it will be for the Senators and Representatives to decide what to reveal, either through a resolution or through the Congressional Record. Failure to testify, or lying to the committee or chamber that is investigating, should be a severe federal crime whose penalties include stiff prison sentences, fines, and perpetual, irrevocable ineligibility for government employment.
But they won't do this, because they are all a bunch of pansies who shrink from a fight, even over serious issues of governance. Somewhere, Abraham Lincoln is weeping.
There are things that Obama may not want to be public knowledge while they're going on (Hey guys, here's the President's itinerary, here's where he'll be on the plane, he'll be in this car in the motorcade, etc), but there's nothing that should be witheld from Congress. Period, end of story. Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy.
He should have Kapitalized it.
I don't have a problem with Clinton getting a blowjob. I don't have a problem with him lying about it. I DO have a serious problem when the lying is under oath as part of testimony in a court of law. They call this perjury. Last time I looked, it was a crime.
Understanding the scope of the problem is the first step on the path to true panic.
I believe this link works:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2533is.txt.pdf
That's for the bill as it was introduced -- couldn't find a copy of the bill post-committee amendments, probably because it hasn't been formatted by GPO yet.
The opposition probably shouldn't automatically win, but secrets need to be interpreted by the court as existing in the worst reasonable light. Note that that's worst reasonable, not worst possible. In some cases, we are definitely facing the opposition pretty much winning a point regardless of how that affects the whole court case.
I don't mean the judge simply declaring an automatic worst case interpretation to the jury either, but there are things that just about any jury will take into consideration once they are said, even if the judge orders them to disregard those bits, and if that tips the whole judgment of the jury, than that's the risk the prosecution takes.
Note that the government takes that sort of risk with perfectly normal, non-secret testimony too. That's why they should still face the risk if they use secret testimony.
If the government wants to file a case against someone for espionage for example, and declares that some of their evidence is secret to protect the identity of an agent in place, it would probably be reasonable for the court to accept as a given that if said agent really exists then there is a real need to protect that agent's identity from disclosure. This still means we have testimony that would normally fall under hearsay rules, i.e. someone else has to testify, in court where he faces the possible penalties for lying under oath, that he heard the agent say something (or read or otherwise acquired the information that is now second hand). Even if the court were to accept that this situation is an exception to normal hearsay rules, in the same way as a deathbed confession can be, it's still reasonable to limit what can be used in the case, to make somebody be accountable for swearing that the reason for secrecy actually exists as stated, and all classification is based on that reason.
If the source can't reveal even the cloudiest details about the location where the testimony originated, or the time it occurred, then the Defense should, at the very least, get to ask for something definite enough to be cross examined as a precondition of the evidence being admitted at all, and somebody to direct the cross examination at.
For a protecting an agent's identity based claim, someone highly and publicly placed in the related intelligence agency should have to testify under oath that the information originated in their agency, from sources who were active agents at the time. We probably should have a lot more than that, but it's a necessary start for any kind of fair trial. Evidence that cannot be disproved is just like a scientific theory that can't be falsified - there is no such thing. If there is no ability to challenge, it's not evidence.
If the government can't somehow offer evidence that has some testability or potential to be challenged, and limit the effects on the trial to ones relating to those parts of the testimony that can be examined, then they are in the position of asking the judicial system and the public to take any and all executive branch testimony on sheer, blind faith. At that point, what the executive branch is really violating is the principle of separation of church and state.
Who is John Cabal?
Unless you're Scooter Libby. That was just for shock value, the Libby thing was pretty much crap.
But honestly, here's how that sounds in my head when you say things like that:
Bush lied and people died... but they were mostly our teen to twenty-year-old boys and girls in the sandbox, not to mention the tens of thousands that are coming back without arms, legs, or worse.
Clinton lied, babies died because for a while there we couldn't think of a blowjob without Linda Tripp's face. Then Viagra was invented.
You are exactly right, it was perjury... but I'd rather have that, even with Linda Tripp's face etched into my psyche, than to hobble/kill a generation.
I never voted for Clinton because I think a guy who's family can't trust him shouldn't be trusted to run the country. However, from now on, I think it only fair that any politician you personally vote for should be called to Congress, and asked if they masturbate. If they say no, they don't, they should go to jail, and if they say yes, they do, they should be required to describe explicit details on TV. You know... because it's just not right to commit perjury.
And obviously, you should be up in arms about Bush pardoning Libby. Let me guess... your not!
There are two kinds of people who still support Bush Jr. The religious right, who I strongly feel are harming the world through their politics, and glass eaters. Glass eaters (from either party) have drunk the Kool-Aid, and are incapable of even thinking badly of any sitting president from their party. From your ridiculous belief stated above, I'm putting you in the glass-eater category.
Beer is proof that God loves us, and wants us to be happy.
Clinton lied, babies died because for a while there we couldn't think of a blowjob without Linda Tripp's face.
Clinton lied, and people died.
He attacked Iraq to "wag the dog" on the Lewinski scandal. You can believe that, or you can believe his stated motive:
"Saddam (Hussein) must not be allowed to threaten his neighbors or the world with nuclear arms, poison gas or biological weapons," Clinton said.
For the record, I think both Clinton and Bush are dicks, but I can't sit idly by while you parrot incorrect slogans.
Having Kennedy(or for that matter any of the senate or house)working on this kind of legislation is kinda like having an arsonist driving the fire truck ,isn't it?
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
I gotta say that's a totally excellent way to sabotage an election. Hire the "terrorists" to print an "endorsement" for the opposition. It's funny/sad that the trick actually works.
Except in this case, of course, it was the Hamas spokesman on the radio in New York, doing an interview, and expressing his preference for Obama. I'm really not thinking that McCain's people, or Hillary's, have a lot of influence over the Hamas PR machinery in that way. Obviously, Obama was quick to say, "la la la! I'm not listening to that endorsement!" because obviously he has a vested interest in it going away. I found it more amusing than anything else.
Don't disappoint your bird dog. Go to the range.
I fear, it was much more disturbing. I firmly believe that G.W.Bush and his administration didn't intend to lie to us, at least not about the single fact they were sure to be true. I rather think they were so convinced that there were WMDs in Iraq, and that al Qaeda was somehow the fifth platoon of Saddam Hussein, that they saw a necessity to reveal those dark and hidden plans with all means, even with deceit and lies. I think they thought that the end was justifying the means, and that somehow the truth at the end was making them holy again.
I had always that eerie feeling to be in one of those criminal novels where the lonely private eye is convinced that Person A is the murderer, even though all evidence points to Person B or even suggests suicide. And then the lonely eye tries to trick everyone (by planting false evidence or by lying to police men or whatever) into finally giving him access to Person A's privatest and intimest places to finally find that evidence to finally prove Person A's guilt.
The problem was twofold:
1) The president of the United States is no lonely private eye. He is the single most powerful military commander of the world. So when he screws up because his gut feeling is misleading him, then he screws up really big time. But he never asked himself: What if we are all wrong? Everyone actually asking this or at least asking for some evidence was just a hindrance for him to reveal the truth he was so strongly believing in. And he and his administration felt justified to remove those road blocks at all cost, even at the price of the Constitution.
2) The administration got it terribly wrong. There was no hidden truth to reveal. It was exactly as it seemed at the beginning: al Qaeda is fundamentalist network, and Saddam Hussein was a grotesk dictator. And both were detesting and mistrusting each other: For al Qaeda Iraq was much too secular, and for Saddam Bin Ladin was too fundamentalist, too independent to be controlled and thus a danger to Saddam's own powers. And the WMDs were really destroyed and all attempts to restart the weapon program were thwarted by the inspectors, by the embargo, and by the normal incompetence of a dictatorial bureaucracy. The zigzagging was just to keep some street cred with the neighbours, and making them think there would be at least some military power left with the local bully, so they wouldn't start the war.
Saddam probably wasn't expecting the world greatest power to be so naive and to fall for his stunt. In the end his little deceitment and the stubborn naivety paired with a feeling of a higher mission of a bunch of hillbillies in power was costing at least the life of 30.000 Iraqi soldiers and 4000 U.S. soldiers. It put Iraq in the most serious political instability since World War I when the Turkish Empire was dying, and this instability killed another 250.000 Iraqis. So the last five years were as devastating to the Iraqis as the 30 years of Saddam Hussein's dictatorship before.
the consent of the governed
Right! And it is with that consent that a president is hired for four years, and trusted to do his or her job. Part of that job includes dealing with things that absolutely, positively should not be talked about in open court. If you don't like a particular administration well enough to give them that job (or re-hire them for another four years)... then all you have to be is persuasive enough to get people to vote your way. But you seem to be suggesting that no president can be trusted for four years. Which means you don't trust them for four minutes, either. On the other hand, you ARE trusting 400 politicians in Congress to make minute-by-minute judgement calls? Because if you don't think ANY president can do it, then you're pushing such authority somewhere else (never mind that pesky constitution, that places such authority with the executive branch).
It's very similar to the consent we give to police departments to hire and use undercover officers. Without them, certain rings of organized crime types cannot be dealt with. If someone who is politically opposed to the police chief can just fire off a lawsuit and, as part of discovery, simply demand that a list of all of the undercover cops is produced in court... well, you get the idea. It's simply absurd. Don't like the way those officers are conducting their work, or frustrated that you don't have enough details of their day-to-day jobs as they risk their lives? Fine. Get the mayor changed in the next election, and have that person - for whom those cops work - change the nature of those jobs. But making who they are and what they do and how they do it a matter of public record, as-is, is like allowing anyone who feels like drafting a lawsuit to just walk up and shoot those officers in the head. And it's even more true for counter-intelligence types, foreign operatives, etc.
If you don't like the fact that covert activities are essential, then elect someone who will take whatever action you think is necessary to make that condition go away. Say, complete appeasement of North Korea. Or a new public policy that supports the Iranian government's every wish in the Middle East. Or a new policy that proclaims the Russian mob as a worthy international organization. Just change those policies, and you'll have no need for the people who have to deal with them under difficult, dangerous circumstances, and no need for their boss (the commander in chief) to protect their identities from those that would like them all killed.
Don't disappoint your bird dog. Go to the range.
Lincoln suspended the writ of habeas corpus and kept it a secret from the American public. John Marryman was being held without trial, and the Supreme Court issued a writ of habeas corpus. Lincoln basically ignored the writ.
Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy
Ah, so you're saying that we CANNOT trust a politician (the president, whose job is to head up the executive branch, which runs the sorts of operations in question) to use good judgement and keep the appropriate information from leaking out and damaging foreign relations or getting people killed, but you're willing to trust 400 politicians to exercise that judgement flawlessly? Do you mean people like Democrat rep. William Jefferson, caught with tens of thousands in bribe cash in his freezer, and who is not only still in office, but who might be considered to be a somewhat compromised keeper of sensitive information... and so Nancy Pelosi re-assigns him to committee that oversees the department of Homeland Security. Is that the sort of person you were thinking should be briefed on the the most sensitive, covert, under-cover operations? He's only still in office because Pelosi didn't want the stain of having to go through the process of kicking him out damage the politics on her side of the aisle. Of course, she would scream (and has, and does) for that sort of action if it's her political opponents exhibiting anything like that very same behavior.
That's the setting in which you'd like the most sensitive, lives-at-risk secrets to be passed around in rooms full of congressional aides, staffers, and the like? Yeah, what could go wrong? MORE than could go wrong when the executive branch keeps it close, and then briefs the next administration on what's up. Or perhaps you're suggesting that Bill Clinton's ham-fisted handling of Bin Laden and Al Queda in the wake of the Cole incident, embassies, etc., should have been hashed out in congress, with operational details and intelligence methods, and quiet communications from other governments (which would never be forthcoming if they thought it was going to be handed over to 400 gasbag legislators in the middle of negotiations) spread all over the news?
Don't disappoint your bird dog. Go to the range.
I have the facts to back it up.
1) The Duelfer Report, clearly stating that there was no connection between the Baathist movement and al Qaeda, and just the dysfunctional remainings of a weapons program.
2) An interview with the Number Two of al Qaeda, al Zawahiri.
3) The history of the Baath Party as a secular, socialist and nationalist Arab movement.
4) The biography of the Number Two of Iraq, Tariq Aziz, who is no muslim at all, but a Chaldean Catholic. So whatever Iraq was, it was surely not ruled by islamistic jihadists.
5) All the alleged evidence brought before the war being debunked, from the Yellow Cake Story to the British dossier on Iraq's WMD program being just a rip of of Ibrahim al-Marashi's doctoral thesis.
6) The fact that Donald Rumsfeld even created his own intelligence unit because the CIA was still unable to uncover anything supporting, what the administration was believing to be true.
7) The fact that Colin Powell's address at the U.N. didn't convince neither Hans Blix, head of the U.N.'s inspectors of Iraq's WMD program nor the "old Europeans", with Germany's Minister for Foreign Affairs, J.Fischer, publicly stating his doubts.
"Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy."
Unfortunately, this has already been shown to be the case with respect to the allegations of illegal wiretapping by President Bush. It was the responsibility, and duty, of Congress to demand and conduct an (at least partially public) investigation into the activities of the president and his minions.
Congress also let him off the hook on WMD misrepresentation (Gulf of Tonkin, anyone?), Illegal Torture authorization (which he admitted to by the way) and Guantanamo detainees (Geneva Convention). Other potential crimes (e.g. Valerie Plame) could not be directly linked to him but dirty his name, and that of his administration, nonetheless.
Congress abdicated their duties with regard to the separation of powers, international law, the constitution, and public trust - over and over again, because its members were (and still are) afraid of even being *accused* of being soft on terrorism.
So please don't tell me we can trust Congress to do the right thing. They've already proven they can't and won't, even when the evidence is staring them in the face.
uR iGn0ranc3, Their Power