Holder on State Secrets
The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.
But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.
3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?
I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.
4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?
I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.
"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.
Given all their efforts to get Holder to sign in blood a pledge not to prosecute, I have to admit – much as I am disturbed by the al Haramain fuzziness so far – that were I Eric Holder, I would be highly parsing, too.
Well, that, and his very nature seems to be legalistic parsing, so that may be the best we ever get, aside from the “Waterboarding is torture” comment.
I do wonder whether a review of whether the invocation of state secrets includes a review of whether it is covering up underlying crimes…
Please define “Significant”.
That’s one word a lawyer never uses (without a definitive definition) when drafting interrogatories, requests for admissions, or in non-leading questions, oral or written.
Because what’s significant to you, the questioner, might be quite insignificant to the answerer. Using that word, you leave yourself subject to the adversary’s opinion, which opinion is never to be disclosed to you. (Because, as anyone who really takes the time to think it through will find out, as a matter of logic and definition when someone gives you their opinion you have no way of knowing whether that opinion is actually their opinion, or just some bullshit they made up. Opinions are wholly subjective, even when masquerading as something objective.)
Better to redraft the question and refocus it.
When someone uses it in an answer – when the question did not ask along the lines of “significant” (it asked “all”) – they want to avoid answering the question.
Frankly, since I’d bet there are likely fewer than 100 cases pending nationwide in which the Government has invoked the state secrets doctrine, Holder is looking to dodge the question and not get tangled too tightly in al-Haramain or any other case.
Bushie’s going to win the bet on wiretapping. You watch.
Gosh, I’m going to have to watch myself: for some time now into the fourth decade of being a lawyer and still using that word “significant”, oh, I’m sure more than once a day at the very least. Carry the six… well, I’m so far past 50,000 times you’re making me concerned their putting up a special circle in my honor in Hell.
I can think of a number of reasons, on top of mb’s @ 1 [auteur of my all-time favorite slam-of-outgoing-torture-presidency-most-likely-to alarm-cops-into-turning-the-hose-on-you recently at Orange Satan]: not wanting to commit to reviewing each and every case ongoing in the entire DoJ, which would take several lifetimes; not wanting to appear to be interfering with the normal day-to-day prosecution of cases going on out of the dozens of US attorneys’ offices as their meat and potatos; not wanting to be saddled with having missed what some media or Republican critic chooses to call “significant”, because with the DoJ unloading such an incredible, unprecedently number of rabid Bushies, that accusation quite frankly is a matter of when, not whether; etc etc etc – all arguably under mb’s umbrella already.
Have you ever found yourself making some embarrassingly pompous way-OTT pronouncement? This one is just like then.
Really. In how many cases do you think the government has asserted the state secrets defense?
He does not have to look at all the thousands of cases in which the United States is a party. All he has to say is “Minion: search for assertion of state secrets in a case.”
He’ll get a list likely less than 100 captions long. Probably less than 50.
Why dontcha think some more about what I said about using “Significant”? The way I ask my questions is:
“Did any X happen?”
“Yes”
“How much X happened?”
“A lot.”
“How much is ‘a lot’?”
What makes you say ‘a lot’?”
“How much would be ‘not a lot’?”
or
“An insignificant amount.”
“How much would be significant to you?”
“Is there a line between ’significant’ and ‘insignificant’ or is there what is commonly called a grey area, i.e., where one person might say ’significant’ and another ‘insignificant’?”
“Why do you draw the line between ’significant’ and ‘insignificant’ where you do?”
And so on.
If the questioner qualifies the question with “significant”, prior to tying the answerer into making a definition of it, then none of those clarifications I’ve just exemplified can even be asked of the witness, and you leave the witness acres of wiggle room to roam around in, bullshitting all the time.
Objective, objective, objective. Always objective.
Be nice if he reviewed the invocations in the el-Masri case and in the al-Marri and Padilla and Arar cases. And in most of the GITMO proceedings. And …
He doesn’t aound all that willing to support the bill. Horton says that although the invocation has been available in one form or another since the time of Jefferson, about 90% of the invocations have been Bush admin uses.
One thing that Congress could do that would be helpful from an “investigations” standpoint would be to investigate the instances where State Secrets has been invoked historically for what are now known as purposes of avoiding embarassment or accountability, and not to protect state secrets (like, for example, the Reynolds case itself, and possibly situations like Kurnaz and el-Masri if they can push on the string hard enough to get that info in the public record. A Congressionally established record of historical misuse would make it quite a bit easier for courts to require in camera production and possibly even to support the remedial legislation, if any such as Feingold’s is ever passed.
How can it be that Russ Feingold is such a rarity in America? It stuns me a little, every time I think it through – but it certainly makes you appreciate him that much more. Too bad Obama hasn’t seemed to want to include him in “the fold” of the Obama insiders. It still bothers me that Obama has so stacked his DOJ appointments with people he has such tight personal connections with – but it is what it is.
I thought the “State Secrets” case was a WW II vintage case where a plane crashed and the family wanted info. 50 years later after the records were unsealed it turns out it was just to cover up incompetence and bad publicity.
Secret Law is unconstitutional now and always was. This state secrets crap is not to be found in any constitution I ever read. Would the Bushie judges who are plain textualists actually grant that this priviledge even exists?
Of course they would the fing hypocrits.
bille
Well, at least at the beginning of the debate, Leahy said “No Senator should seek to trade a vote for a pledge“. Will Kit Bond address his felonious claims he made to the Washington Times last week, or will he vote “yes” without further explanation and open himself to indictment? Inquiring minds want to know.
Thanks ew.
digg
Kitt Bond speaking now. This ought to be interesting.
Carrier Liability Provisions was the focus of the Bond/Holder second meeting.
“Confusing and conflicting statements have come out in the press.”
Bond’s goal was to use his ten minutes to “set the record straight now.”
Claims there was no quid pro quo (my words) to compel Bond’s nomination.
Holder’s public answer to Senator Kyle re: the FISA/Telecom non-prosecution stance was said to be the basis for the private conversation between Holder and Bond resulting in the appearance of a quid pro quo for Bond’s “yes” vote – as reported by the press.
Bond just made the ridiculous statement that “circumstances can’t change” significantly enough to bring a suit now, given that the subject events and circumstances “happened in the past.” (the same could be said of all crimes)
The implication is that any future revelations or documents evidencing blackmail, fraud or treason should be ignored by Holder, simply because the events to which they pertain already occurred and were glossed over, buried, created a serious problem for one of our closest (Israeli) allies, or otherwise ruled to rise to a level worthy of prosecution.
Shorter Kit Bond: Holder assured me in a way that wasn’t umm improper err umm.
Someone tell Sessions Obama will alow gays in the military and obviate the Solomon amendment.
Just put up a post on Bond’s statements.
Vis-vis the dr. thread below, can we move to end the “distinguished” senator adjective? “senator” should do the trick and unless anyone has ever referred to another as “undistinguished” senator then it clearly unnecessary.
Leahy commented on the anonymous hold followed by a unanimous yes vote for holder out of the committee but yielded before he concluded hid point.
Kay Bailey will vote no on Holder over gun control. How did she vote of Gonzo and Mukasey, the recent supreme court decision notwithstanding. Plz, tell me she’s 3 for 3.
Kay Bailey will vote no on Holder over gun control,the recent supreme court decision notwithstanding.
How did she vote of Gonzo and Mukasey? Plz, tell me she’s 3 for 3.
15 – I think in a formal setting, there absolutely has to be a definition of significant and you are correct. I would not file a pleading, execute a contract, or give direction to other counsel that used “significant” as a qualifier without a definitional reference. In a letter that is attempting to be evasive (possibly for good purposes, although I doubt it) or in correspondence settings, I think it’s a waffle word that gets used a lot.
I agree that there should not be an issue of thousands and thousands of cases with state secrets invocations, and also that in many of the “more numerous” instances, it would involve families of related cases (like the state privacy law cases or the wiretap cases etc.) where numerous invocations may all be based upon one departmental determination and aspect.
Certain rulings on State secrets will be used as gifts which the new administration can then give to the neo-cons in order to “unite” the country. Same thing with executive privilege.