Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
[Update: As expected, even in his flu weakened state, Glenn Greenwald has a post up about this and will add more later. And, he rubs it in about Obama. Fine. But, the alternative is still worse. People might need more to care about the next election, but that alone is a reason to care. No matter how aggravating it is. Not that I don't get the anger. Well deserved that. More commentary/background.]
Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ”
Zeitoun is an award winning book concerning a Syrian immigrant with a successful contracting business (and a native American convert for a wife) stays behind to keep an eye on things during Katrina and gets caught in a Kafka-esque nightmare (the last 1/3 of the book). A powerful page turner. An innocent man, trusted by many to protect their property, was seized with three others, not allowed a phone call and kept in prison for weeks while his wife started to believe he was dead.
This was the result of the anarchy in the midst of the storm, though it is hard to justify not finding some means to set up some sort of system where someone like him could not even have contact with the outside world for around three weeks. Even if he was guilty, which he was not, his treatment was cruel and unusual. A basic violation of rights. But, this for some is too much to expect. As the majority in a 6-5 ruling, overruling the panel regarding a civil suit to obtain some relief in a case of extraordinary rendition, just ruled in respect to the anti-American "state secrecy" doctrine in place now:
“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”
Somewhat different facts, same results -- for some people, when it comes to our basic values, actually enjoying them all is too much to ask. Yet another excuse is found, so that:
“To this date, not a single victim of the Bush administration’s torture program has had his day in court,”
As the dissent -- again it's 6-5 and the majority admits they are troubled by the result -- notes: "The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint." This is sham justice. It gives aid and comfort to those who say that President Obama (to be generous) in effect b.s. us when he said he would change Bush's policies. As Charlie Savage, who joined the NYT and is an expert in this field notes in the article, in rather harsh language:
The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.
The absurdity of it all is underlined by the fact that the majority blocks even a chance for judicial relief, a chance to show the district judge that there is enough there without the secret evidence. Tying the district court's hands is unjust, but some middle ground might bring forth some semblance of a fair hearing. The majority however -- akin to raising the chance of a pardon to some wrongly accused -- counsels executive and/or legislative relief. If only! What do they think we are, Canada? This besides ignoring the proper role of the courts:
Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 13554], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” [Maj. Op. at 13556], leaves to the legislative branch claims which the federal courts are better equipped to handle.
Given the shoddy basis* (with three no nonsense FDR appointees dissenting) of the start of all of this, it is not too surprising, sadly. This lawsuit shouldn't be occurring. A means should be present to obtain relief. If the U.S. government wants the shield of state secrets, there is a way to balance all those American values without sacrificing one or more. The most obvious is to provide fiscal relief to those wrongly treated. This is akin to use of wrongly seized evidence: pay the piper, if you want to play a wrongful tune. But, that's too much to ask. The majority claims this is met:
In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.
B.S.! What is this lawsuit if not a means to prevent such cover-up, to prevent injustice and un-American behavior from occurring once again? If the government wants to claim that the lawsuit is just about revealing secrets, pay the people the money and/or provide some means of reparation. Provide some relief. But, as with Maher Arar, it does not want to do this. Meanwhile, relief in the courts are repeatedly blocked. Promises that we will not do such things again are made, but the government continues to act in ways that are shameful.
[And More: As noted by a NYTop-ed today, the majority acted as it did "even though it is public knowledge that Jeppesen arranged the torture flights," ensuring us that this was a special case. But, I don't believe it, especially given the overuse of secrecy in the past. Why should I trust the an administration who promised change on the point and gave too much of the same? More "trust us" b.s., when "doubt us" is more appropriate, more American. More appropriate when the government has given us no very good reason to give them the benefit of the doubt. Give them a default judgment. Then, maybe.]
And, without safeguards, what about when a new regime comes into power? When the next 9/11 or Katrina will come? Who will be the next Abdulrahman Zeitoun to be lost in the system, to use a comparison found in the book, like a stray caught in a fishnet, a dolphin or other animal caught by mistake or basically an unfortunate victim of the process? Such as some civilian killed in a drone attack, who all too often are assumed to be somewhat guilty by many people anyhow?
It's all very depressing. I think the courts can manage here, but fine, let's say they cannot. The executive and legislature then should do something. Such is the appeal of the majority here. But, where's the true legislative reform of the state secrets doctrine that was in the works? The Obama Administration doesn't really want one, since it feels their hands will be tied too tightly. Yes, such is what occurs with checks and balances. The travesty is that such things underline how moderate Obama is overall, push comes to shove, such moderation these days supporting conservative things. But, not enough apparently: we need to make things worse!
And, if you aren't going to show any real desire to bring people to justice, provide fiscal reparations or even provide a full airing of what occurred ("let's look forward"), trusting them to take basic power away from the courts to secure justice. 6-5 splits also should go the way of liberty. If it is that close, what the majority allowed here should not be done. If you are so uncomfortable, one or more of the judges should have joined the minority, which again, didn't want to give away the store or anything. Finally, those who think Obama just did this as some sort of thirteen dimensional chess move to test it in court are really kidding themselves.
Can't ask for too much liberty in these times, I guess.
* Lest we forget, the original state secrets ruling -- discussed here -- had three dissents, the hard-nosed FDR appointees Black, Frankfurter and Jackson. They notably merely cited the decision below, one written in the midst of the Cold War. The opinion by Judge Maris in part noted:
The Government presses upon us the contrary conclusion of the Britich House of Lords in Duncan v. Cammell, Laird & Co., (1942) A.C. 624. The case is distinguishable in that the plans of the submarine Thetis there involved were obviously military secrets and the suit was between private parties. But we do not regard the case as controlling in any event. For whatever may be true in Great Britain 22 the Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision. 23 Nor is there any [**27] danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments. When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. 24 And if, as [*998] the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.
Any superiority cited to the U.K. or Canada on these matters are a tad ironic these days. But, the sentiment holds true.