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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?
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.
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.
"Special attorneys" is an abhorent solution. Justice must be seen to be done and must be seen to be impartial. Secret courts and attorneys are the antithesis of this ideal.
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
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.
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.
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?
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.