11 Dimensional Chess: 9th Circuit Rebuffs Obama Administration's State Secrets Claim

By Big Tent Democrat, Section Constitution
Posted on Tue Apr 28, 2009 at 02:41:25 PM EST
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Via the Washington Independent (see also Glenn Greenwald's post, he will also have interview with the winning attorney, Ben Wizner of the ACLU), just as predicted by Obama supporters, his shrewd gambit to adopt the Bush Administration's position on the state ssecrets privilege has been soundly rebuffed by the Ninth Circuit in Mohammed v. Jeppesen Dataplan(PDF):

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. . . . This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

[MORE . . .]

We reject this interpretation of the “very subject matter” concept, not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and the Executive’s constitutional duty “to preserve the national security,” United States v. Valenzuela-Bernal, 458 U.S. 858, 880 (1982). We simply need not place the “coequal branches of the Government” on an all-or-nothing “collision course.” Cheney, 542 U.S. at 389.

(Emphasis supplied.) Hooray for the Obama Administration for its brilliant 11 dimensional chess! Of course, that means NOT APPEALING this decision to the Supreme Court. Who want to take bets on that one?

In any event, congratulations to Ben Wiuzner of the ACLU for an important legal victory.

Speaking for me only

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11 Dimensional Chess: 9th Circuit Rebuffs Obama Administration's State Secrets Claim | 36 comments (36 topical)

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All snark aside (5.00 / 4) (#1)
by Big Tent Democrat on Tue Apr 28, 2009 at 02:43:57 PM EST

This is a wonderfully reasoned opinion.

One of the best I have ever read.

Irrespective of the result.

: Of course (none / 0) (#3)
by lilburro on Tue Apr 28, 2009 at 02:54:55 PM EST

for it is Obama who made them write it.
It seems possible that the Obama DoJ will take it all the way to the Supreme Court. They weren't shy about defending their use of the state secrets privilege. And if Obama truly doesn't want a Truth Commission, he'll probably want to keep kicking this case down the road. Which is a shame.
But for today...today is a good day.

Odds, anyone? (5.00 / 2) (#2)
by jbindc on Tue Apr 28, 2009 at 02:53:14 PM EST

Of how the current Court will rule on this case (if it gets there)?

BTD - what's your feel?

if only the 9th (5.00 / 1) (#5)
by Turkana on Tue Apr 28, 2009 at 03:10:16 PM EST

reigned supreme...

The 9th (5.00 / 2) (#7)
by jbindc on Tue Apr 28, 2009 at 03:15:34 PM EST

is there to force the Supremes to look at an issue. You'll notice they are usually the ones furthest out from the rest of the circuits in their decisions.

I think their motto is Age. Fac ut gaudeam

(Go ahead - make my day!)


: exactly (5.00 / 1) (#16)
by Turkana on Tue Apr 28, 2009 at 04:10:36 PM EST

my point. the wingers hate the ninth.

So, how will the Obama faithful (5.00 / 1) (#8)
by Anne on Tue Apr 28, 2009 at 03:29:59 PM EST

explain the inevitable appeal?

I can hardly wait...

easy (5.00 / 1) (#26)
by dws3665 on Tue Apr 28, 2009 at 04:40:21 PM EST

Our dimensional chess goes all the way to TWELVE!


: The beauty of 11 dimensional chess (none / 0) (#30)
by Ben Masel on Tue Apr 28, 2009 at 04:48:46 PM EST

No published rules.

I really dont have an opinion (1.33 / 3) (#9)
by Capt Howdy on Tue Apr 28, 2009 at 03:39:39 PM EST

on if there will be an appeal or not but an equally interesting question might be how will you manage to find fault with them if there is no appeal.


As long as we have the Obama DOJ (5.00 / 2) (#21)
by Anne on Tue Apr 28, 2009 at 04:28:17 PM EST

advancing the same we-can't-let-anyone-seek-redress-because-everything-we-do-is-secret argument as the Bush DOJ, you can count on me finding plenty of fault.

I would have preferred that the Obama DOJ not have taken up the cause started under Mukasey, and I'm not going to apologize for that.


Seriously? (4.66 / 3) (#12)
by lilburro on Tue Apr 28, 2009 at 03:45:27 PM EST

There are plenty of good reasons to believe that the Obama DoJ will appeal. I see no reason to attack Anne on this.


how exactly (3.00 / 2) (#13)
by Capt Howdy on Tue Apr 28, 2009 at 03:51:51 PM EST

was that an attack?


you don't think this (none / 0) (#15)
by lilburro on Tue Apr 28, 2009 at 04:03:58 PM EST

is reminiscent of an election season attack?

an equally interesting question might be how will you manage to find fault with them if there is no appeal.

well (3.00 / 2) (#17)
by Capt Howdy on Tue Apr 28, 2009 at 04:12:46 PM EST

if I understand what you are even talking about, no.
since if I remember correctly she and I were on the same "side" during "election season", no, I dont.

it was just a random thought. heres another, what could Obama do to get even a little grudging praise from some of his harshest critics here and elsewhere?
is there anything?


Well (5.00 / 3) (#19)
by Ga6thDem on Tue Apr 28, 2009 at 04:22:31 PM EST

from me he could act like a leader and not a follower. Instead of letting everybody else do the work and then he joins in at the last moment he could actually, you know, start advocating for stances.

He couldn't even effectively defend the stimulus bill. He whined about the earmarks. Well, don't whine about them. Veto it and tell congress to take them out. That's the kind of stuff that just drives me crazy.

And you know what's sad? I had very low expectations for Obama when he took office and he hasn't even managed to meet those. At the very least I thought we wouldnt have a continuation of the Bush economic plans but it seems i was wrong there. I think he just wants to run around and give speeches.


you seem like a serious person (5.00 / 1) (#20)
by Capt Howdy on Tue Apr 28, 2009 at 04:26:54 PM EST

let me ask you a serious question, do you think McCain or god forbid Bush would use the budget reconciliation process to force through a plan to expand health care?

leaving aside if he will go whole hog for single payer or some retooling of the government workers program. do you think, for that matter, any republican would even champion a cause like expanded health care. at all?


I have no doubt that the GOP would (5.00 / 3) (#25)
by Anne on Tue Apr 28, 2009 at 04:38:07 PM EST

have concocted a plan that masqueraded as health-care-for-all.

But here's the thing: we had better make damn sure that whatever plan the Democrats put forth is as close to what we want as possible, because a simple majority could ensure that we get stuck with something that is a whole lot less than satisfactory.

At this stage, even getting members of Congress to consider single-payer, to take it up as an eminently viable solution, has been well nigh impossible. Now, wouldn't you think that if Obama supported a plan that built upon the known successes of a proven single-payer plan - Medicare - he would be lobbying for it and using the bully pulpit to lead on the issue?

Look no further than the bankster protection racket we have going now, that was built by Obama, to give you a preview of who is going to benefit from the next incarnation of health care reform.

I will go out in my front yard and dig up worms and saute them for breakfast if Obama gets the right single-payer plan through Congress.


he's not (5.00 / 1) (#27)
by CST on Tue Apr 28, 2009 at 04:40:53 PM EST

gonna get single payer - not one national pol has proposed it.

But he might get something significantly better than what we currently have. And that is a good thing.


: I am not even sure (none / 0) (#29)
by Capt Howdy on Tue Apr 28, 2009 at 04:45:23 PM EST

single payer is the right approach.

Reading through these old threads... (none / 0) (#36)
by Romberry on Thu Sep 09, 2010 at 09:57:47 AM EST

...on Jeppesen and came across your comment in reply to Capt Howdy on health care. I'm going to blockquote it just because I want to see it again:

(H)ere's the thing: we had better make damn sure that whatever plan the Democrats put forth is as close to what we want as possible, because a simple majority could ensure that we get stuck with something that is a whole lot less than satisfactory.

At this stage, even getting members of Congress to consider single-payer, to take it up as an eminently viable solution, has been well nigh impossible. Now, wouldn't you think that if Obama supported a plan that built upon the known successes of a proven single-payer plan - Medicare - he would be lobbying for it and using the bully pulpit to lead on the issue?

Look no further than the bankster protection racket we have going now, that was built by Obama, to give you a preview of who is going to benefit from the next incarnation of health care reform.

Prescient doesn't begin to describe your post. One good thing about being right. It means you won't be eating sauteed worms for breakfast.


Yeah (none / 0) (#22)
by Ga6thDem on Tue Apr 28, 2009 at 04:31:28 PM EST

they'd do it but it would be some sort of tax credit and they'd call it expanding healthcare.

I've read that Obama is going to go with the public option because the insurance companies don't want it.


my point is (5.00 / 1) (#24)
by Capt Howdy on Tue Apr 28, 2009 at 04:36:32 PM EST

he is almost certainly going to use the budget reconciliation process to force a revamping of the health care system to the screams and wails of wounded republicans coast to coast.

regardless of if you agree with his approach or not if you cant admit that is a level of magnitude cooler than anything we have seen in many many years you are simply in denial.

that is just MO.


My (5.00 / 1) (#28)
by Ga6thDem on Tue Apr 28, 2009 at 04:44:06 PM EST

point is that if you're going to "revamp" it do it right. I'm not seeing that right now. You're impressed obviously with the process not whether the policy is right.

I'm not impressed with the process. The results and policy are what matter. What difference does it make that he's using a process that you admire to push policy that's probably a poor decision?

I don't care about the GOP. They're going to howl no matter what he does. They howled about the stimulus and he didnt use that process.


we do not know what (5.00 / 0) (#31)
by Capt Howdy on Tue Apr 28, 2009 at 04:49:35 PM EST

the result will be. personally I am willing to wait and see before I dismiss his efforts out of hand.
I would say the same thing about whats going on with the stimulus stuff. I dont know what that is going to yield but I know they are smart enough to know their political future depends on positive results. and since I believe they attach great import to their political future I am hopeful.
I think the same of health care. it is the number one issue with most voters. if they get it wrong they are hosed.
therefore I am hopeful.


: Well (none / 0) (#32)
by Ga6thDem on Tue Apr 28, 2009 at 04:53:42 PM EST

okay. I can accept that you're hopeful. However, having seen the congressional dems in action the last few years I'm not. I'll be glad for them to change my opinion but the Geither Plan among other things make me think that it's just more of the same ole garbage that I thought Bush was doing by himself. Well, apparently they saw no problem with a lot of Bush's stuff when they're continuing to do some of the things now.

: If they get it wrong, WE are hosed. (none / 0) (#33)
by Anne on Tue Apr 28, 2009 at 04:56:29 PM EST

I don't care about the precious political futures of the members of Congress; there will be no satisfaction in seeing careers end if we are left holding a bag full of cr@p.

that (none / 0) (#23)
by Ga6thDem on Tue Apr 28, 2009 at 04:32:57 PM EST

should be "isn't going to go with"


Capt, BushCo would do anything necessary to pass (none / 0) (#34)
by jawbone on Wed Apr 29, 2009 at 12:15:48 PM EST

legislation they wanted and felt was needed to enhance their powers. Now, specifically do whatever it takes to pass expanded healthcare?

Only if there were an immense financial benefit for their Big Insurer backers--and thier backers would get a sure thing. As something which would be for the general good? Probably not.

Is this a trick question? Second paragraph suggests it is. Wha'?


C'mon Anne (none / 0) (#10)
by jbindc on Tue Apr 28, 2009 at 03:41:18 PM EST

This is all part of the plan, doncha know? It's much sexier if it comes from the Supremes...


Inevitablilty (none / 0) (#11)
by NMvoiceofreason on Tue Apr 28, 2009 at 03:42:18 PM EST

Even though a case decided by a federal appellate level court is binding precedent within its jurisdiction, it is mere dicta elsewhere. This case actually has no meaning whatsoever in Washington, D.C., until the Federal Circuit appeals court adopts it in a decision.

For the case to be binding precedent, the Supreme Court of the Republican Party must render a decision. My guess is it will be Cert.den., just to preserve this loophole.


Good for the 9th. (none / 0) (#4)
by Maryb2004 on Tue Apr 28, 2009 at 02:58:32 PM EST

I'll have to read the opinion when I get a moment.

Great post (none / 0) (#6)
by Dadler on Tue Apr 28, 2009 at 03:11:19 PM EST

Great opinion. I agree on the can-kicking SCOTUS appeal. Don't think even Vegas would take bets on it. Not worth the electricity to put it up on the board.

Excellent opinion. (none / 0) (#14)
by Joelarama on Tue Apr 28, 2009 at 04:02:56 PM EST

Separation of Powers is a juicy area of law.

Lawyers are turning over every stone (none / 0) (#18)
by SOS on Tue Apr 28, 2009 at 04:20:06 PM EST

for income why wouldn't they appeal?

: Huh? Gov't lawyers are salaried; ACLU hardly earns (none / 0) (#35)
by jawbone on Wed Apr 29, 2009 at 12:27:39 PM EST

much, if anything, by taking these Constitutional cases. So, which lawyers would mount an appeal to earn oodles?
Or did I miss your meaning? Is there some group out there in the for-profit law firms which would have standing to appeal? Thnx for explication.
IANAL;NDIPOOTI. (I am not a lawyer; nor do I play one on the internets.)