meh, at least he's closing Gitmo ..... one day .... maybe .... sorta

It's a ridiculous, unchecked power for a President to have. No President should have it in the first place, let alone need time to deliberate whether or not they should keep it. Sullivan's defense is yet another in the long line of Obama's apologists demanding patience to reserve judgment when Obama does something indefensible. Even if Obama eventually reconsiders and stops utilizing the State Secrets Privilege to dismiss cases out of hand, they've already done it once too many times. That Obama is even considering retaining this power, it's demonstrative of a fundamentally corrupted mindset and a abject backpedal on his promise for transparency and respect for the rule of law.

The Ambinder article I mentioned above has a little more detail:

and later he adds:

I'm not saying I agree with this analysis: just passing it on.

DVaut1,

Who are you and what have you done with DVaut1?

I don't think I've said anything out of character. In fact I'm pretty sure Wynton and I have been down this road a couple of times before over a similar topic (ie, how aggresive Obama should be in rolling back incredibly dangerous Bush policies like this, or how complicit he's been in seeing them enacted -- this and voting to grant immunity to telecoms, for instance).

Just like shopping at the supermarket, you get what you paid for even if the item was mislabeled.

What?

i think its his dennis green "he is who we thought he is" moment

at the grocery store I worked at in high school, you get things for free if they are mislabeled... very interesting

http://www.salon.com/opinion/greenwa...ets/index.html

^
Greenwald rightly points out the shoddy "journalism" on display from Ambinder, which Wynton cited above (although he admittedly didn't defend it, just passed it on):

The bolded above is exactly what the left (rightly) criticized journalists for doing during the Bush Administration. Again, it's absolutely no better when the Obama Administration is left similarly unaccountable.

And then he essentially gets to the heart of why Ambinder's handwaving is meaningless anyway; there's no genuine excuse for the DoJ's behavior for anyone who shares the premises that Obama campaigned on: namely, respect for the rule of law and government transparency in serious matters like "whether or not the American government tortures people":

Co-sign one million

The apologists will run around and just claim we don't know enough to judge. No ****ing kidding, that's the whole point of the criticism levied here: that the federal branch's abuse of this privilege leaves them wholly unaccountable.

As I think I mentioned earlier, I agree with Greenwald that the defense that the administration was rushed seems implausible; for it's hard to fathom that any court would refuse a request for more time for a new administration to consider its position. I also don't condone Ambinder's use of anonymous sources.

But I'll try to amplify why I'm not sure that this controversy is really that important in the first place: simply put, the expansion of the state-secret doctrine - from a consideration whether certain documents should be kept secret to the more expansive view that an entire lawsuit can be dismissed - could, carefully tailored, be a distinction without a difference.

One can imagine circumstances where a lawsuit depends entirely upon documents that should be kept confidential. In such circumstances, it makes no difference whether the lawsuit is dismissed based on insufficient evidence, or dismissed due to the invocation of "state-secrets." The result is the same either way: the plaintiff loses.

I'm engaging in total speculation here: but perhaps the government's argument in the Ninth Circuit is that that particular lawsuit does uniquely depend on or is intertwined with confidential information, while acknowledging that outright dismissal is a remedy that could only be invoked in rare circumstances. Perhaps the government even set forth some kind of criterion for when dismissal is appropriate.

The counter-argument - which I actually think is the more sensible view - is that there is absolutely no benefit to adopting the government's position either, as it would, at most, streamline a procedure, while risking denying people their day in court, adding confusion and raising questions about due process.

By the way, though I don't know the makeup of the panel hearing the case, no one should be surprised if the Ninth Circuit (and even the Supreme Court) adopts the ACLU's position; and that outcome would be considerably better than the Obama administration merely withdrawing its argument.

I was one of these people regarding his tax/spending agenda...... judging by the stimulLOL package, it looks like my suspicions were on target.

So you were right that Obama is a dangerous liberal radical anathema to the American way of life, while Jimbo was simultaneously right that Obama is more of the same and that his promise for Change was a bunch of baloney that anyone could see right through.

Take a look at what he has done so far.... you be the judge.

This is easy to reconcile:

What they're saying is that we always end up with presidents who are dangerous liberals, radical and anathema to the American way of life. For the past 200 years, it's been one endless cycle of pinko commie presidents.

More from Marc Ambinder

First, he admits that it is a legit question, why the Obama administration did not ask for more time:

The bolded language indicates that the general policy for invoking the states secret privilege has been settled, eliminating the hope some of us had that this could have been a temporary stance.

Interestingly, he adds:

I have no independent recollection of what Obama said about the privilege; I wouldn't be surprised to learn that he gave the impression he would never invoke it, while leaving himself wiggle room to do otherwise.

And then he observes:

This is what I was speculating about earlier: i.e., that the expansion of the privilege may not be much different, occasionally, in practice.

Still, I reiterate that I don't like what the administration is doing here. I consider it wholly unnecessary and contrary to the spirit of his campaign, if not his explicit promises.

There's some policy lag here though...perhaps they reassert the old privilege while the ambitious/smart lawyers from Obama craft a new doctrine that allows for legitimate security yet also accommodates civil rights? I really do imagine it takes some time to right the behemoth that is the federal government.

If Marc Ambinder is to be believed (see Wynton's post right above yours), that's not the case:

The "DoJ ran out of time, there's policy lag, etc etc" defenses aren't all that compelling, for reasons Greenwald gets to:

Greenwald then cites two cases in the recent past (he's been in office less than a month) where Obama's DoJ has asked for more time:

To respond to Wynton's question:

From the Obama campaign website:

http://www.barackobama.com/issues/ethics/

I don't know that Obama ever said specifically he would NEVER invoke States Secrets, but he sure did imply that he saw it as a big problem and something that needed to change in Washington. If he merely meant "I'll use it less than Bush", that's still deplorable. Using States Secrets to dismiss cases out of hand is uniformly and normatively bad; there's no justification to do it once.

Yeah, I see what you are getting at, but liberal and "change" have multi-dimensional aspects. The constancy is the increased executive power of the Bush administration, used for very different ends.

Personally, I find this to be the purest of apologetics. Does anyone really believe, for example, that if Ron Paul had miraculously won the election, that radical changes would not have begun at approximately 12 noon on January 20th, 2009?

Why hasn't Obama been busy crafting his "new doctrines" since election day? He's had two a half months. The obvious answer is that his "new doctrines" were always merely rhetorical devices, and that his actual doctrines will be all but cosmetically (if that) indistinguishable from the old doctrines.

These aren't the whispy doctrines of political debates. This is lawyers hunting down case law and judicial interpretations of executive power, stuff like that (I'm not a lawyer, I wouldn't know, but I have a general feeling). Names of doctrines like "originalism", "textualism" spring to mind. I'm inclined to check Volokh on this for that reason.

http://www.volokh.com/archives/archi...tml#1234284785

Here you go. He cites David Luban, who's on the Georgetown Law faculty:

Orin Kerr:

I'm one of those people that believes states secrets ought not to be used how the Bush/Obama DoJ has used it; it's one thing to argue that specific, very specific pieces of evidence or documents are national security risks if allowed in a case. I think there are legitimate uses of States Secrets there. That's what States Secrets was originally designed to do.

What Bush (and now Obama) have used it to do is compel dismissal of entire lawsuits based on the claim that any judicial adjudication would harm national security. That's what I object to, and Obama's continued use of this is deeply troubling.

Obviously, if you're Jimbo and you think the terrorists know where a bomb might be somewhere in the world and should be tortured so we can find out and we plebes don't need to know about it because it's War and torturing people is what you do in a war to get the information you really want, then obviously Obama is doing a wonderfully righteous and practical thing. Obviously if you disagree with some of my premises here then what the DoJ is just great and commendable business as usual.

Dvaut,

See this post from the blog "The Volokh Conspiracy". Passage of note:

Maybe that's a rehash of the research you've already done. The comments at this blog are generally very insightful though.

It is a rehash but I'll go around again:

This is bizarre, since all the DoJ had to do to "get a full picture" and complete their review was ask the court for a delay. They didn't. They went in and asserted the privilege. I'm sympathetic to the fact that it's only three weeks into the term and they needed time to get their act together, but it's not a defense for what Obama did. They had options to give themselves time and didn't avail themselves of them.

And if Ambinder is right, the whole question of timing is irrelevant. Per Ambinder: "the Obama Administration does not believe that the state secrets privilege ought to be taken out of the government's tool box when facing civil suits."

My response to this earlier (which you quoted in your first response):

From what I've read, you're definitely right that it's a major PR mistake if Obama had that intention in mind, particularly given that the ACLU was willing to concede an extension of the case.

What blows me mind is how the Bush Administration was able to assert these specious "doctrines" in the first place. Your criterion clearly makes sense - specific acts, evidence, places, or things. How can such broad criteria for dismissal be accepted and not struck down by the courts? It seems to violate due process on its face, like a naked grab for power.