Sotomayor Refuses to Give Government Privilege for Me But Not for Thee

Justice Sonia Sotomayor’s first opinion, released yesterday, is interesting for several reasons. Clarence Thomas was a predictable asshole to her about her opinion. (h/t fatster) It was the first time anyone has used the phrase “undocumented immigrant” in a SCOTUS opinion.

But I’m interested in the Obama Administration’s unsuccessful attempt to get the Court to bail them out of troubles they’re having on national security cases like al-Haramain and Jeppesen.

The case, Mohawk v. Carpenter, concerned whether a District Court’s order allowing discovery that threatened the attorney-client privilege merited an immediate appeal. The Government submitted an amicus brief in the case, basically arguing that it did not. But at the same time, the Government tried to write an exception for itself, arguing that attorney-client privilege should not get to bypass the normal appeals process, but state secrets and presidential communications privileges should.

As noted above (pp. 11-12, supra), the collateral order doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake. This Court has recognized that important governmental interests, principally of constitutional and statutory significance, justify immediate appealability under the collateral order doctrine. See, e.g., Osborn, supra (Westfall Act certification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Helstoski, supra (Speech or Debate Clause immunity). Although the attorney-client privilege does not meet that high bar, privileges such as those protecting Presidential communications and state secrets qualify for such treatment in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.

The Presidential communications privilege, which draws its authority from the constitutional role of the Executive and “can be viewed as a modern derivative of sovereign immunity,” is well established. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (citing Raoul Berger & Abe Krash, Government Immunity from Discovery, 59 Yale L.J. 1451, 1459 n.46 (1950)). “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution,” and it derives largely from the “necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.” United States v. Nixon, 418 U.S. 683, 708 (1974). Unlike the attorney-client privilege (see pp. 15-17, supra), the Presidential communications privilege is invoked relatively rarely and only after authorization of senior Executive Branch officials.


In addition to the Presidential communications privilege, this Court has long recognized a state-secrets privilege. That privilege may be invoked to avoid “a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953). The state-secrets privilege, whose origins extend to early Anglo-American law, “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and for eign-affairs responsibilities.” El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007) (emphasis added); cf. Totten v. United States, 92 U.S. 105, 107 (1876) (noting that in comparison to cases involving common-law privileges—including the attorney-client privilege—“[m]uch greater reason exists for the application of the principle [against maintenance of a suit resulting in disclosure of confidential matters] to cases of contract for secret services with the
government”). As a matter of practice, the privilege is invoked by a formal request “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” underscoring its unique significance to the functions of the Executive Branch and the restraints on its invocation. Reynolds, 345 U.S. at 7-8 (footnote omitted). In addition to their paramount “public importance” and “the need for their prompt resolution,” Nixon, 418 U.S. at 687, orders denying the applicability of the Presidential
communications and state-secrets privileges also satisfy the other traditional elements of the Cohen inquiry. First, an order requiring the disclosure of information over the government’s assertion of those privileges would conclusively resolve the issue. The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon. Id. at 692.

Second, neither the Presidential communications privilege nor state-secrets privilege turns on the merits of the action in which they arise, but rather on the nature of the constitutional prerogatives of the Executive Branch. Accordingly, when compared to the attorney client privilege (see pp. 17-21 supra), the governmental privileges are more readily severable from the merits of the underlying case. For example, the question whether disclosure of a state secret would endanger national security or diplomatic efforts is independent of the merits of the underlying action that seeks the disclosure. If information is properly deemed a state secret, then any assessment of the potential merits of the action or the disclosure’s impact on the merits is beside the point—the state secret cannot be divulged regardless. See Reynolds, 345 U.S. at 11 (state-secrets privilege cannot be overcome by “even the most compelling necessity”). The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a “generalized interest in confidentiality,” engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6 [my emphasis]

Now, it’s crystal clear what the Government was trying to do with the state secrets stuff. They were trying to dig themselves out of several holes in the 9th Circuit, by pushing the Court to back their argument that they can appeal an order to disclose evidence anytime a question of state secrets is involved. In particular, if I understand correctly (and please correct me if I’m wrong), this is what the Government tried to do in al-Haramain–appeal Judge Walker’s ruling that al-Haramain’s lawyers could have access to materials on their wiretapping so as to litigate the case.

Note, too, their claim that the Government would never refuse to turn over information after a Judge had ordered them to. Except that was precisely what they seemed to be preparing to do in al-Haramain, not just refusing to turn over information, but to take information already lodged with the Court Security Officer, along with filings that are the property of the Court, away from the Court.

Further, look at what they’re suggesting: neither state secrets nor presidential privilege turns on the merits of the case. Meaning–if I understand it correctly–so long as they can invoke their privilege, then Courts will never get to the point of weighing the merits of the case. So long as they invoke the privilege, Courts will never get to rule that they broke the law. Yes, we know that’s how and why they’ve been using the state secrets privilege–to avoid any responsibility over the torture and illegal surveillance done in our name. But it’s interesting they would admit it, particularly in light of difficult questions such as whether FISA trumps state secrets.

So, as I said, it’s not surprising they made this argument on state secrets.

But it’s rather disconcerting that they did so on presidential communications, too. To do so–and then make the laughable claim that presidential communications privilege is invoked rarely at a time when their fucking social secretary is refusing to testify before Congress under what is a bastardized form of this privilege–is just pathetic.

I guess we can expect the Obama Administration to try to protect far more than Desiree Rogers’ involvement in a state dinner, given that they tried this ploy.

In other words, the Administration tried to use this case to say, “we don’t think the privilege of schlub lawyers should change the normal process of appeals, but we’d really like for you to certify the claim that our privilege should change the normal process of appeals.”

Thankfully, Justice Sotomayor (and presumably, the Court generally), was unwilling to do as the Administration wished.

Participating as amicus curiae in support of respondent Carpenter,the United States contends that collateral order appeals should be available for rulings involving certain governmental privileges “in light of their structural constitutional grounding under the separation ofpowers, relatively rare invocation, and unique importance to governmental functions.” Brief for United States as Amicus Curiae 28. We express no view on that issue.

A wise Latina indeed.

(Note: after I started writing this I saw that Daphne Eviatar hits this same issue in this post.)

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

66 replies
  1. BayStateLibrul says:


    Tom and Gisele had a boy, named him “Fourth and Two”
    Prediction: Patsies will win their next four games…

        • skdadl says:

          I’m watching the bricklefritzes (MacKay, Cannon, O’Connor) trying to run out the clock on the committee right now (on CPAC). No matter. I think MacKay at least is a goner, or in any decent country he would be.

          • Petrocelli says:

            I can’t understand what McKay has gained from being Harpuh’s Shadow … what a rube !

            If we had a Librul Leader with intestinal fortitude, the opposition would unite to turf the Cons.

            • Mary says:

              I saw tacked on in that article that a couple dozen former ambassadors were jumping into the fray to tell McKay & the conservatives to back off Colvin. Popcorn time.

              • Petrocelli says:

                Our Ambassadors and Diplomats share info. across party lines … I hope this is enough to bring down Harpuh & the Cons. *sigh*

                Right now, I’d take half an Obama over this Yutz !

                EDIT: Thank you Mary for your incredible article … I had to read it thrice, it was that good !

                • skdadl says:

                  You think? I’m not sure I see much light between Harper and Obama any longer. The Yoo filing and the war/endorsement of McChrystal have pretty much finished me off. I’m reverting to Nuremberg as my bottom line — I mean, I’m getting radical. *wink*

                  The diplomats are coming out of the woodwork, though. I think we have a couple dozen more today, on top of the original signers. I wondered when the pros at DFAIT were finally going to lose their tempers.

                    • skdadl says:

                      LOL. Oh, that’s our boys with toys, all right. (Apologies to all the wonderful men here. I really am not anti-male, and I know that our armies and intel agencies have produced some strange women lately.)

                      They seem to need to talk themselves into things that look important and technically sophisticated, even when they are totally divorced from reality. It’s like when they call brute force “technique,” and then make careful lists of the dozen special kinds of brute force they can think of, all of which must, of course, remain secret even from citizens to prevent knowledge of them from falling into the hands of the enemy brutes, who, as it happens, are perfectly capable of dreaming up in minutes exactly the same techniques and in fact have already done so. For centuries. From the beginning of recorded time. You heard how they play polo in Afghanistan?

                    • fatster says:

                      Yessum, and I don’t really want to think too much about the polo (buzkashi, I think), having just eaten some apple crisp.

                      Remember in the movies how generals would move little pieces around on a map on a table, using some kind of long implement, denoting where armies were or should be, how many could be wiped out, or tricked into moving to another place, and so on? Now that was straight-forwarded and reminds me of the board game Risk which I spent far too much time playing in graduate school.

                      Ah, to see the contract language and the amount paid for the creation of that mind-bogglement you just viewed, for as Jim White just pointed out, it was developed through contract.

                  • Petrocelli says:

                    The difference between Harpuh & PBO is night and day.

                    It is apparent that Obama’s AfPak surge has the tacit blessings of Russia, China & India along with the Arab Bloc, so I score him above Bush. I greatly dislike that my nephew and all our kids are over there, cleaning up this mess but I am hopeful that they will get it right this time.

                    *NB: I am a hopeless optimist*

            • MrWhy says:

              Dion and his socialist brethren tried that last year, and BushHarper whined to his mommyHer Majesty’s representative.

        • MrWhy says:

          The Bush RepublicansHarper Conservatives thought they could bluster their way through their torture scandal, and the truth is biting them in the ass.

  2. MaryCh says:

    So does this mean Justice Sotomayor is not an Obama puppet or créature?

    Could she instead be a personification of Obama’s version of FDR’s “go out there and make me make progressive change”?

    Or am I just grasping at straws as HCR vanishes in diminution?

    • bmaz says:

      Don’t delude yourself; the ruling has no impact whatsoever on the state secrets issue and the fact that Sotomayor distinguished and refused to go there has little value. In fact, if I had to read this looking for a hint of where she will go on state secrets, I would have a bad feeling because of the way she did distinguish the respective assertions.

      • Mary says:

        That would be where I’d be worried too – this kind of language, “may nevertheless harm individual litigants in ways that are ‘only imperfectly reparable‘” – leaves things pretty wide open to distinguish matters that harm national, rather than individual litigant, interests and to argue harms that go beyond being merely “imperfectly reparable.”

        I’d be sweating deliberative privilege a bit at this point, depending on what I deliberated over (and if it could be deemed severable from *national security* claims)and I guess until it is all said and done, you can hold out some hope on the states secrets issue, from her references to protective orders. Hope ain’t all that much what it was cracked up to be, though.

  3. cinnamonape says:

    As noted above (pp. 11-12, supra), the collateral order doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake..blah…blah…blah…The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a “generalized interest in confidentiality,” engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6 [my emphasis]

    Why is it that, like Yoo, the government tends to drift into the most turgid, obscurantist and torturous language whenever they are failing to make a logical argument. It’s like they are trying to dazzle one with their serpentine writhings into walking into the labyrinth. Clarity of writing usually is an indicator of clarity of thought. If the writing is organizationally sound and structured there is a greater chance that the argument being made is also.

    • emptywheel says:

      Well, and they also repeatedly say, “oh, this muckety muck in the executive branch has to weigh in on this privilege” as if it makes everything okay.

  4. BoxTurtle says:

    She didn’t deny that they had that privilege, either. Don’t read more into “We express no view on that issue” than is there.

    This means that the AH folks can’t usefully cite this case as they try to get ObamaCo to obey the law.

    I wouldn’t call this a win for the rule of law. More of a tie.

    Boxturtle (Though I bet Judge Walker got a bit of a snicker from it)

    • fatster says:

      Sad to say, and I truly am, at least it’s not a loss. In these times, we take what solace we can find. Sigh.

    • emptywheel says:

      I think it would have been inappropriate in any case for SCOTUS to weigh in on what is basically al-H. And Sotomayor, as was pointed out over and over in her confirmation hearings, is very disciplined about answering the narrow question before her (that’s why her Ricci decision was legally correct but politically toxic).

      And this is, after all, an opinion defending judicial process; it would be even more inappropriate for her to ignore the process and make a statement.

      SO yes, I consider it a win for the rule of law. Not a win for al-Haramain (who didn’t try this cheap ploy) and definitely not a win for the Administration.

      But that’s okay. I’d rather root for the underdog in this day and age: rule of law.

      • bobschacht says:

        I think it would have been inappropriate in any case for SCOTUS to weigh in on what is basically al-H. And Sotomayor, as was pointed out over and over in her confirmation hearings, is very disciplined about answering the narrow question before her (that’s why her Ricci decision was legally correct but politically toxic).

        This is an important point to keep in mind. Justice Sandra Day O’Connor, after leaving the Supremes, made a point that most of their decisions went not into grander issues, but hinged on the placement of jots and tittles, as well as matters of grammar and syntax (my paraphrase). It seemed like they were looking for the narrowest possible grounds for the decision.

        Except maybe in the embarrassment known as Bush v. Gore.

        Bob in AZ

  5. earlofhuntingdon says:

    The case is about whether a ruling regarding exceptions to the confidentiality of client communications with his or her attorney could be appealed before a final decision in the underlying case. The Sup.Ct. said no. The unanimous decision was that issues arising from that ruling should be raised when appealing the case itself, and that remedies such as vacating the judgment and ordering a retrial, adequately protected the client’s interests.

    The in-house attorney’s client is the corporation, not its individual officers, let alone more junior employees. The attorney-client communications at issue would probably have been the attorney’s summary of his communications with the plaintiff, mid-level manager, which would likely have been classed as attorney work product, since the manager and the in-house counsel did not have an attorney-client relationship. In fact, their interests were adverse.

    The US government’s friend of the court filing was a non sequitur. It raised issues not in controversy in the case they were addressing, which mean the court properly had no jurisdiction to address them. It was appended to this case as if it were an abortion rider on a defense appropriations bill.

    As EW and Glennzilla have taken pains to point out, the Obama administration is not attempting to pull back from, much less reject, the Bush administration’s legal excesses over executive power and state secrecy. It is attempting to extend, consolidate and institutionalize them. As EW says, this friend of the court brief is an aggressive example of just how broad its program to do that is.

    • emptywheel says:

      Thanks for that legally proper description. WHile I can follow the concepts, there’s that whole hocus pocus language you lawyers use that I’m not so good at!

  6. earlofhuntingdon says:

    Sotomayor’s substitution of “undocumented” for “illegal” immigrant was elegant and understated, a nice retort to Clarence Thomas’ vicious snark.

  7. earlofhuntingdon says:

    The US’ friend of the court brief is consistently hypocritical with the way it routinely violates attorney-client privilege – under the guise of protecting national security – at places such as Gitmo. It routinely monitors prisoner conversations and other communications with attorneys, while prohibiting many forms of communication from the attorney to the client. All for me and none for thee is an apt description of this government’s view of the attorney-client relationship.

      • earlofhuntingdon says:

        I guess I should have added that the US’s hoovering up and analysis of national telecoms into its national security data bases, including communications between lawyers and Islamic charities, violates the attorney client privilege on a daily basis.

        • Mary says:

          I kind of wondered if Thomas is partly looking to lots of criminally based issues that might come before the court later – from the pictures to torture interrogations etc. – in his highlighting that the reason this isn’t getting review is his understanding that Congress said not to review it. I may be overfocused on that issue, after reading Yoo’s bit – where he is so confident (even post Boumediene) that a Congressional chit is all it takes to disenfranchise the Court, but in any event, a slew of what is out there now has Congressional chits, offering up ways for the Executive to ignore Sup Ct review – from telecom snooping through pictures through torture interrogations, etc. – I can’t help but think that Thomas, like Yoo, is writing primarily so he can cite back to himself later.

          • earlofhuntingdon says:

            I think that’s a valid concern. Thomas could easily pair prepping the field to defend BushCo immunity from prosecution with a slam at his newest, untried colleague. It would be an easy argument for Thomas to make, too, since not reviewing the current crop of claims of government criminality would be consistent with his politics. If he’s around long enough and there are Democratic crimes to evaluate, he won’t find it hard to reverse his position and find that they merit review and punishment.

              • earlofhuntingdon says:

                Thomas doesn’t write many opinions, but his most famous attribute is virtually never asking questions in open court. I suppose he doesn’t like dealing with answers he doesn’t agree with.

          • LabDancer says:

            This is the first comment here that gets close to my thinking on this curious case.

            How ‘curious’? Start with the basis for the grant of certiorari, ostensibly to resolve a creeping trend of inconsistency involving as many as ten of the Circuit Courts.

            [That’s my take from Carpenter’s response to Mohawk’s petition for cert, and Mohawk’s response to that response, links to both here:

            The superficial implication is that the SCOTUS will be strongly inclined be moved to grant cert where there is some clear basis for concluding such inconsistency in the courts below.

            Thomas points out — supported in Carpenter’s response to Mohawk’s petition — & IMO correctly — that it’s not as if the SCOTUS was confronted with a problem threatening judicial floodgates. Not nearly.

            Not to mention the timing: January 26 of this year. The clerking staffs of for those members of SCOTUS who claim to hold themselves ‘above’ the use of the cert pool [Stevens, Roberts & Alito] would have had in hand all the filed briefs plus the analysis of the cert pool itself for quite a long time in advance of the Obama inaugural.

            So, how does it come about that a case gets majority support for certiorari in January & goes down in flames 9 to zip ten months later? I very much doubt this has come about from the one change in the court’s membership, from a New England male centrist whose opinions are marked by a heightened sense of precision, to a New York female centrist whose past opinions are marked by a heightened sense of precision.

            Instead, this suggests the distinct possibility that one or more members of the court coming to January 26 held out some hope for the case presenting some sort of ideological opportunity, and was/were able to gather a majority in support of allowing for the continuation of at least that opportunity. Extrapolating from the court’s ideological bent & Thomas’ testicular quasi-dissent suggests Thomas was among the majority.

            So what’s happened in the intervening period? Well, a big pile of stuff — but in that pile is a ten month history of the Obama administration’s DOJ consistently supporting positions espoused by, & benefiting figures in, the Bush administration, on a range of issues critical to the imperial conception of Article II powers.

            • Mary says:

              Where ya been?

              That’s the kind of vibe I was getting too – even in Sotomayor’s opinion and more so in Thomas’ concurrence – that markers are being laid.

      • BoxTurtle says:

        I’m not. Presumed Judicial independence aside, 4 members of the court desire that BushCo be protected and one wants to protect ObamaCo.

        If someone had wanted to slap harder, there would likely have been concurring opinions specifically to disagree with the slapdown.

        Boxturtle (Admittedly, insufficient data as to Sotomeyers loyalty to the one who appointed her)

  8. Mary says:

    This may or may not be important to note, but when the Court(Sotomayor) is weighing in on this issue, it notes that it is wanting to resolve a split in the circuit courts. The Ninth is noted in a footnote as being one of the circuits that had allowed collateral order appeals on the atty client discovery issue. So in essence, the Ninth just got a backhanded boost to their decision not to allow collateral order appeal in Walker’s case. They’ve now been told they were granting those perhaps too freely ;)

  9. Peterr says:

    When SCOTUS refers to US v. Nixon as they reject the Executive branch position, that’s a rather vigorous slap, IMHO. Perhaps not a slap on the particular point raised by EOH @15, but a slap nonetheless.

      • Peterr says:


        So if you’re the president and SCOTUS comes out and rejects your argument, saying “Your legal argument is no better than the charlatan that left the WH in shame and dishonor in 1974,” that’s going to leave a mark.

        If the DOJ/WH didn’t realize that US v Nixon would be used against them, they’re bigger fools than I thought.

  10. earlofhuntingdon says:

    Clarence Thomas accuses Sotomayor of coming to the right decision, but for partly the wrong reason. He, alone among his colleagues, accuses her of substituting “what the Court thinks is a good idea” for a reading of what the appellate jurisdiction statute says. His comment suggests he’s delivering a neocon talking point that couldn’t be delayed beyond Ms. Sotomayor’s first opinion.

        • Petrocelli says:

          Cuz playin’ the Coloreds agin each other throws water on the “Ole White Boys Club” argument ?!!

        • emptywheel says:

          Because while Alito especially is an ideological hack, he’s not that much of an ideological hack. Thomas has a lot more stored up resentment to mobilize. And a lot more favors to pay back.

          • Mary says:

            He’s so poorly paid, though, that it’s incredible that he can generate an opinion at all, especially just for the purpose of limiting his concurrence. /s

  11. Mary says:

    I think the below has some of the guts and I have to say, while national security/state secrets may still ahve some toehold to cling to in the language, if I was relying on deliberations privilege and there were some crime-fraud issues, hmmmmm, I’d be thinking this isn’t a friendly opinion from the Court.

    Basically, the Court(Sotomayor)makes a point of saying that even in an atty-client situation, attys and clients whose discussions are getting into areas of the crime/fraud exception better not be thinking they can dance around discovery under an argument that it is going to “chill” full and frank discussion. That’s going to be a nice section for later citation and use in deliberative privilege cases, if there ever were any civil or criminal cases that can get to the right stage.

    One reason for the lack of a discernible chill is that, in deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal. Whether or not immediate collateral order appeals are available, clients and counsel must account for the possibility that they will later be required by law todisclose their communications for a variety of reasons—for example, because they misjudged the scope of the privilege, because they waived the privilege, or because their communications fell within the privilege’s crime-fraud exception. Most district court rulings on these matters involve the routine application of settled legal principles. They are unlikely to be reversed on appeal, particularly when they rest on factual determinations for which appellate deference is the norm. See, e.g., Richardson-Merrell, 472 U. S., at 434 (“Most pretrial orders of district judges are ultimately affirmed by appellate courts.”); Reise v. Board of Regents, 957 F. 2d 293, 295 (CA7 1992) (noting that “almost all interlocutory appeals from discovery orders would end in affirmance” because “the district court possesses discretion, and review is deferential”). The breadth of the privilege and the narrowness of its exceptions will thus tend to exert a much greater influence on the conduct of clients and counsel than the small risk that the law will be misapplied.
    Mohawk is no doubt right that an order to disclose privileged material may, in some situations, haveimplications beyond the case at hand. But the same can be said about many categories of pretrial discovery ordersfor which collateral order appeals are unavailable. As with these other orders, rulings adverse to the privilege vary in their significance; some may be momentous, but others are more mundane. Section 1292(b) appeals, mandamus, and appeals from contempt citations facilitate immediate review of some of the more consequential attorney-client privilege rulings. Moreover, protective orders are available to limit the spillover effects of disclosing sensitive information. That a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants in ways that are “only imperfectly reparable” does not justify making all such orders immediately appealable as of right under §1291.Digital Equipment, 511 U. S., at 872.

    In short, the limited benefits of applying “the blunt,categorical instrument of §1291 collateral order appeal” to privilege-related disclosure orders simply cannot justify the likely institutional costs.

    • powwow says:

      Section 1292(b) appeals, mandamus, and appeals from contempt citations facilitate immediate review of some of the more consequential attorney-client privilege rulings.

      That reference reminds me that I’ve been meaning to highlight, in case emptywheel didn’t spot it, new reporting by Lyle Denniston at about a fourth “PETITION FOR WRlT OF MANDAMUS AND WRlT OF PROHIBITION” – this one filed on behalf of a non-9/11 Five Guantanamo Bay inmate (by Lt. Cmdr. Richard Federico, one of the two Navy JAG defense counsel who filed the first such Petition on behalf of one of the 9/11 Five).

      The new filing in turn revealed the significant fact, which was news to me, that a third petition for writ of mandamus had been filed on behalf of Al-Nashiri (although I have no link for it), seemingly sometime between the first two petitions we discussed in this recent thread (see comment 45 and surroundings for other links, etc.), and AG Holder’s public announcements about transferring the 9/11 Five to federal court (on 11/13).

      There are three related cases pending in this Court: In re Ramzi bin al Shibh, No. 09-1238, In re Mustafa al Hawsawi, No. 09-1244, and ln re Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, No. 09-1274.

      The fourth petition [No. 09-1294], filed on November 30th in the Court of Appeals for the District of Columbia Circuit, is on behalf of Mohammed Kamin:

      Petitioner is a citizen of Afghanistan. Petitioner was arrested in the city of Khowst, Afghanistan on or about May 14, 2003 by U.S. and Afghan forces. Shortly thereafter, be was transferred to the Collection Point facility (now know as the “Bagram Theater Internment Facility” (BTIF)) at the Bagram Air Base, Afghanistan, where he was held in the custody of the United States. [He was transferred to Guantanamo Bay in September, 2004 (I believe was the month – it’s redacted from the petition, but not from the government’s opposition to the stay motion).]


      On March 11, 2008, the Government preferred one Charge of Providing Material Support for Terrorism against Petitioner, supported by six Specifications, in violation of 10 U.S.C. § 950v(b)(25), pursuant to the authority prescribed in the Military Commissions Act of 2006.


      On November 12, 2009, the Government provided notice that it “may swear an additional charge” against Petitioner. On November 13, 2009, the Attorney General held a press conference to announce the disposition and forum selection for cases involving detainees held at Guantanamo Bay. See “Attorney General Announces Forum Decisions for Guantanamo Detainees.” On this date, there were ten Guantanamo detainees facing charges that remained referred for trial by military commission. Following the Attorney General’s press conference, the Departments of Justice and Defense announced the disposition of all referred military commission cases except one – Petitioner, Mohammed Kamin. Upon query to the Prosecution, no information was provided regarding the status of the Review over Petitioner’s case.

      All of which appears to complicate somewhat my theory that avoiding and mooting the potential Judicial Branch check these writs could trigger (they’re still actively under consideration by the D.C. Circuit until at least December 15) might have been a prime motivator for getting the filers of the first two moved to federal trial in N.Y. [Since, presumably before 11/13, there was apparently also one, and are now two such writs of mandamus – which directly challenge the Constitutionality of the 2006, and now 2009, Military Commissions Act – filed on behalf of detainees still retained within the Military Commission setting.]

  12. WTFOver says:

    Clarence Thomas was a predictable asshole

    has there ever been more of an Uncle Tom than this assklown ???

    and i am not a racist / bigot but has there ever been more of an Affirmative Action baby than mister pube on a coke can ???

    what a complete jagoff.

  13. Mary says:

    OT –
    U.S. frees Kuwaiti who judge said was abused at Guantanamo

    The U.S. government released from Guantanamo Wednesday a Kuwaiti Airways engineer whom a judge freed from eight years detention because American interrogators had wrung a false confession out of him years ago.

    In September, U.S. District Judge Colleen Kollar-Kotelly instructed the Obama administration to release Rabia “forthwith.” It still took three months to release him in part because the U.S. government was weighing its options. Even after he’d been moved to the section of Guantanamo for soon-to-be-freed prisoners, the military did not drop the charges against him.

    In the end, Cynamon[Rabia’s lawyer] said, the emir of Kuwait sent one of his personal jets, a J5 twin-engine 12-seater, to the remote U.S. Navy base in southeastern Cuba Wednesday to fetch Rabia under a release agreement negotiated between the two countries.

  14. MadDog says:

    OT – Via Esquire:

    Alberto Gonzales: What I’ve Learned

    The former attorney general opens up on the value of torture, his Senate hearings, Karl Rove’s role in the U.S. attorney firings, and more wrong guesses from the Bush administration…

    …We should have abandoned the idea of removing the U. S. attorneys once the Democrats took the Senate. Because at that point we could really not count on Republicans to cut off investigations or help us at all with investigations. We didn’t see that at the Department of Justice. Nor did the White House see that. Karl didn’t see it. If we could do something over again, that would be it.

  15. marc says:

    Something that I have been wondering about lately. It is conventional wisdom that a liberal administration will protect to the last breath powers usurped by a prior fascist administration. Conventional wisdom at the same time assumes that a conservative court will easily give up much of it’s own power and prerogatives in difference to what is suppose to be no more than a co-equal branch.

      • Petrocelli says:

        Yes’m ! They’re over at the Mothership …

        As much as I lurves BBQs [ just ask skdadl ], these damn trolls are blecch !

        • behindthefall says:

          Which posts? Only posts I see at a quick glance have few comments and don’t look troll-infested. (They must be under a different bridge …)

          • fatster says:

            Not sure, but it might be the “FAIL” post by Jane. If so, it seems to have quieted down now. Sheesh!

            • Petrocelli says:

              They were all over 3-4 posts today. TBogg is up now and if they wander in there, well they’ll get their just desserts.

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