Legal Commentary

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

By Big Tent Democrat

Via the Washington Independent, 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. Jepppesen 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

Full post as published by TalkLeft on April 28, 2009 (boomark / email).