Eric Holder’s Secrets

I wanted to call your attention to one passage of the petition for an en banc hearing of the Jeppesen case (that is, a request that the 9th Circuit revisit its decision that state secrets only applies to evidence, and not information).

These conclusions by Director Hayden and the district court have been reinforced by an additional review – following the panel decision in this case – at the highest levels of the Department of Justice. Based on that review, it is the Government’s position that permitting this suit to proceed would pose an unacceptable risk to national security, and that the reasoning employed by the panel would dramatically restructure government operations by permitting any district judge to override the Executive Branch’s judgments in this highly sensitive realm.

I pointed out a very similar passage in the latest government filing in al-Haramain.

Furthermore, even after the Ninth Circuit issued its decision, an additional review was conducted at the highest levels of the Department of Justice to determine whether continued invocation of the privilege was warranted in response to the plaintiffs’ claims under FISA.

What these "highest levels of the Department of Justice" reviews are, apparently, are the fruits of Eric Holder’s promise to review the state secrets invocations of the Bush Administration to see whether they are "legally appropriate."

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.

I guess this is how we’re going to find out the results of his review, case filing by case filing?

Mind you, the results–that the Obama DOJ continues to support Bush’s sweeping invocations of state secrets to hide Bush-era crimes–are no surprise. We’ve been getting evidence of that in piecemeal fashion since Holder was confirmed in February. 

I just think maybe Holder could do us the favor of releasing the results of his review, under his own name rather than the imperious "highest levels of the Department of Justice." Holder’s DOJ (and President Obama) is about to make this a separation of power issue–but they’re doing so in ways that minimize the political pressure to break with Bush’s practices. This Holder review is being waved around like some gold standard in court filings, but hidden from the general public. 

42 replies
  1. JimWhite says:

    The review is secret.

    After all, that’s what they do with everything that is embarrassing to them and an insult to our intelligence: make it secret.

  2. bmaz says:

    This is all part of the Obama “Constitutional scholar” genius master plan to plead very bad things and have the Courts do the heavy lifting for him and cure the world.

    It’s Eleven Dimensional Chess!!

  3. plunger says:

    A protection racket is an extortion scheme whereby a powerful entity or individual coerces other less powerful entities or individuals to pay protection money which allegedly serves to purchase protection services against various external threats.

    Those who do not buy into the protection plan are often targeted by criminals. These crimes are typically thought to originate from the organization itself. When a person or group refuses to pay for protection, word is put out that they are outside of the local organization’s protection (these organizations often exist in the absence of a trusted police force) and that the person or group in question is therefore free game for freelance criminals or the organization itself.

    The protection money is typically collected by a “bag man”. Although the organization might be particularly coercive in obtaining protection money, it is usually careful to shelter its “mark” from attacks by competitor organizations that similarly attempt to solicit or threaten the targeted individuals or businesses. Disputes between organizations concerning territory consequently arise from two competing organizations attempting to extort from the same “clients”.

    Can you recognize who the players are in this example?

    “Clients” = Taxpayers.

  4. Jkat says:

    in some cases .. like al-harramain .. where the cat has already gotten out of the bag .. it exceeds secret .. it is “unknowable” ..

  5. msmolly says:

    I am sorry to be very OT, but I don’t understand why FDL isn’t all over the DOJ’s DOMA brief from Friday. Or have I missed a post? Aravosis posted extensively about it on Friday, but if there’s been any mention here, I haven’t seen it.

    And I am a 66 year old straight white woman with no “standing” to comment other than my support for marriage equality, but I have several gay friends and I’m intensely interested. This is my “go to” place for the latest, but nothing here?

    With apologies, I now return you to your regular programming…

    • Nell says:

      As PJEvans noted, but without supplying a a link, there’s a DOMA post up right now at the main Firedoglake page. Given the different focuses of Emptywheel and the lake at large, your inquiry would have been more usefully directed to a post at the main home page.

  6. wavpeac says:

    I hate getting behind on EW’s post and yet…is there anything more fulfilling than Sunday morning and finding you are 4 posts behind?? Great reading. Now to get caught up!

  7. BoxTurtle says:

    Am I the only one who’s starting to see an irritating resemblence between Holder and Gonzo?

    Boxturtle (It just seems like we’ve been here before)

    • eCAHNomics says:

      There’s a general principle that the most powerful person in the world is unlikely to cede power. So the null hypothesis is that Obama would take what W accomplished and push it even farther. Evidence is mounting to support the null hypothesis.

    • skdadl says:

      Well, it’s easy enough to see what Peter Lance is doing, but in my vho as someone who has worked in the publishing biz, Harper Collins would be making a very big mistake if they were not responding scrupulously to every single concern that Fitzgerald has.

    • bmaz says:

      Personally, I think Fitzgerald is going to have a hard time in court, if he really does sue; that said, the book appears to be a complete pile of shit that he is rightfully pissed over. And calling it a “protection racket” is absurd to the point of being ludicrous.

      • plunger says:

        We’ll see how the facts play out, and who turns out to be correct. How is the coverup by the government different from a protection racket in legal terms?

        If your own government attacks you, and calls it “Al Qaeda” – then demands all of your tax dollars to go fight this fictitious enemy around the globe “to protect you,” and all of its corporate and banking co-conspirators and the military industrial complex steal all of the money, leaving we the taxpayers broke, how would that not qualify under RICO as a racket?

        How many “hijackers” (of the 19 proclaimed) remained alive after 9/11?

        Simple question.

      • LabDancer says:

        Some time back I spent an hour in a bookstore going through the hardcover version, including a few complete chapters. The book really is the most outrageous example not authored by UJerome Corsi of how to stretch innuendo. The modus operandi: assert something outrageous; pose a bunch of questions, some as “unanswered”, some inherently unanswerable; cite as “evidence” some things that are technically factual [or would be if there’d been some rudimentary fact checking, so close enough for this genre], or more often based on some other third party’s reports as to ‘teh facts’ [with citation, of course], but being careful to only use facts, to the extent they are cited as facts, that are utterly ambivalent; then recycle variations on those answered and unanswerable questions and mix and spin the whole mess, in an effort to leave the impression that at the particular times of those events, Fitzgerald was confronted publicly with those questions by the press [that yields the footnote-like thingees at the end: third party reports and arguably-accurate transcrptions of questions shouted out from the back of the press gaggle while Fitz is headed out the door], and at the time the questions were asked, First just ‘bulled’ past or through them without providing “answers”, or “any satisfactory answers” or “departed hastily leaving with all such questions unanswered”.

        I’m so old I remember the term “yellow journalism” before it was copyrighted by FNC as a condemnation for O’Reilly and Hannitty and the rest to throw out like feces. Triple Cross is the real meal deal, with all the repetitive anxiety highs and hollow lows obtainable from snarfing commercially raised chicken fat breaded and deep fried in mono-unsaturated vegetable oil, with a side of un-drained freedom fries, and washing it all down with a brace of YooHoos.

        Fitz just doesn’t see himself as any kind of a celebrity and thinks he’s entitled to some privacy. There’s enough empathy for that among judges these days that he’s got more of a shot than many might assume: the slime-bucket author is clearly reveling in the free pub, but I think Fitz will ’succeed’ in at least driving the book out of Barnes and Nobles and off Amazon — and on to conspiracy-theorist sites.

        • bmaz says:

          I have not read the book, but it is my understanding that you have nailed it on the head as to the “quality” of work it is. I think Fitz has some laches issues, maybe the republishing for paperback cures that, but I dunno.

          • Mary says:

            OT –
            I can’t get much more than a yawn worked up over the book issue. OTOH, I can’t get much more than a yawn worked up over anything today. Spent last night crawling in the mud in the dark, reaching under deck and stairs that I know have had snakes, skunks and assorted other oogy stuff, trying to catch a wailing tiny black kitten that I heard late, as I was getting ready to go to bed.

            After the catching, there was the getting it into the house (with 3 German Shepherds, 1 mix, all rescues, ranging from 90+ to 140ish lbs) in one piece and trying to work with it to get something it could eat. All of which I only mention bc it occured to me at one point that the standard of conduct that I expected and demanded from a pack of dogs(one of whom was formerly barred from an obedience training facility unless he was muzzled) is a higher standard of conduct the American public has required from two successive Presidents.

            I couldn’t be more proud – of the dogs.

            I’ve only hit and missed on the thread comments, but someone linked back to Sy Hersh’s New Yorker piece on the Grey Areas, and I got to thinking about the pictures again. I’m wondering if some of the pics not made available yet (either among the 40ish at issue in the lit request or overall) show, not just MP or “regular” MI engaging in abuse, but members of Cambone’s Special Access Program who were *authorized* (licensed to kill AND encouraged to sodomize) for their activities.

            The true briefing to Obama on that SAP and how it was interwoven with the pattern of the US military being used to attempt to sexually humilate swaths of the ME as an “interrogation tactic” might have been less than full and robust initially. But once Obama was on board and committed to not investigating CIA’s programmed depravity, he’d pretty much be required to take the same position on the SAP sexual hijinks, family torture and murder crews. So pictures that might have SAP members, or where someone might ask “where was the punishment for this act” with respect to what is shown in the pic (even if the abuser is not in the pic) might really walk deep into SAP areas.

            Combine Wright’s description of Egyptian intelligence techniques (which included drugging and sodomizing young boys, taking pictures, then using those pictures to get them to turn into spies) with the US/CIA/Intel community’s fascination with how Egyptian and other *harsh tactics* “work” – which is, I guess, why none of the 9/11 hijackers were from Egypt) with this from Hersh’s article about Special Access Program torture and depravity:

            The government consultant said that there may have been a serious goal, in the beginning, behind the sexual humiliation and the posed photographs. It was thought that some prisoners would do anything—including spying on their associates—to avoid dissemination of the shameful photos to family and friends. The government consultant said, “I was told that the purpose of the photographs was to create an army of informants, people you could insert back in the population.” The idea was that they would be motivated by fear of exposure, and gather information about pending insurgency action, the consultant said.

            That sounds to me like some pictures, somewhere, sometime, were a deliberate part of the SAP. They show the standard of behaviour that countries where we have a SOFA can expect the US to encourage and protect, giving it secret fraternity, elite exemption status.

            Oh, but wait – I must be wrong. Obama has said no one is above the law, right?


            One more stream of consciousness ramble – I’m trying to figure out which of the CIA briefings was the one where they would have been told about the Nov 2002 torture death. One of Priest’s article says the ranking members of the intel committees were briefed soon after it happened, but “one official” told her (or told someone who told her) that the briefing was “not complete”

            • pdaly says:

              what are you going to name your kitten, after such an involved rescue?

              small correction

              which is, I guess, why none of the 9/11 hijackers were from Egypt

              I might be missing some snark here, but Atta was Egyptian (and passed himself off at times as a citizen from the United Arab Emirates).

  8. wavpeac says:

    It’s much harder to get people to give up their power than it is to prevent people from having it in the first place.

    The scales have been’s going to be difficult to put the genie back in the bottle and it’s going to be a hard mountain to climb, hard to stop the ball from rolling, the train has left the station, the horse is already out of the barn, la, la, la etc…NOW WHAT?

    • behindthefall says:

      h/t Wikipedia, Lord Acton:

      “I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it. “

      I never knew that Acton was prompted to say this by the (then-new) assertion of papal infallibility, but it certainly has general applicability. It could even apply to the Oval Office.

      • earlofhuntingdon says:

        Yes. The papacy was in the midst of losing its last temporal power, control over its Italian lands owing to secular Italian political unification, which lagged just behind the unification of the rumbling, powerful Wilhelmine Germany. The greatest industrial and imperial powers, barring France, were Protestant.

        Combined with the rise of modernity, the emancipation and assimilation of Jews, industrialization, literacy, and a scientific outlook – epitomized by Darwin and Wallace’s 1859 publications on natural selection and the origin of species, including man – the pope’s realm on earth was reduced to the hearts of men and Vatican City. The development of modern concepts of science and history was bringing scripture and an ahistorical church’s authority into doubt.

        The pope was determined that his spiritual authority not become as irrelevant as his temporal authority. Like Cheney, one reaction was to declare his opinion on matters of faith to be infallible and irrefutable, the spiritual analogue to a politician’s hiding behind patriotism and his troops safety.

  9. perris says:

    I guess this is how we’re going to find out the results of his review, case filing by case filing?

    how irresponsible is that?

    talk about wasting court time, government assets and private funds, they need to release the results so those that don’t need to be challenged won’t

    I guess they see some issues they can’t defend but don’t want to advertise, “hey guys, focus on this one over here”

    • skdadl says:

      plunger, you could hardly have chosen a clumsier metaphor.

      Don Quixote is one of the foundational works of modern European literature. The last thing that either the Don or Cervantes himself, different though their views are, would want to say is that a windmill is just a windmill.

      Ceci n’est pas un pipe, plunger.

  10. Mary says:

    All that Johnsen foot dragging that Obama can “blame” on pro-torture, pro-imperialism Democrats (it’s not a conservative/moderate/liberal issue, so I can’t buy into that nomenclature) has worked out really well for Obama and Holder’s determinations that DOJ should continue to be used as an implement of Presidential whim, to cover up crime and protect criminals without even the need to worry about dirtying their nail jobs with pardons.

    Koh and Johnsen have been used. The Bermuda deal cut on the GITMO detainees is an example of how Obama’s life is easier without Koh as well as being easier without Johnsen.

    Holder may be foisting a lot of the “reviewed at highest levels” off on Kris, though. Another lawyer to sacrifice to the torture cult at DOJ.

    • earlofhuntingdon says:

      I agree that Koh and Johnsen’s nominations have been used to placate the Left, while allowing them to be held hostage to “more important issues” in the Senate placates the Right. Obama is, indeed, a Chicago pol.

      That they are substantively brilliant picks for their respective offices is an added bonus, but it’s not their present utility.

  11. plunger says:

    Breaking on RAW:…..-military/

    Royal Dutch Shell caught co-opting military for corporate profits (As in Queen of the Netherlands SHELL).

    Royal Dutch Shell Settled
    , but the documents are exceptionally damaging.

    So oil companies actually co-op entire governments and militaries to achieve their profit goals, eh? And who co-opted OUR military for an invasion of a sovereign nation for their oil?

    Chevron, Exxon/Mobil (as in Rockefeller), and BP (as in “CROWN PETROLEUM”)

    All of the claims of secrecy tied to a “National Security” issue, are about oil. Everything is.

  12. emptywheel says:

    My impression is that Fitz has a mighty tall hill to climb to be able to sue (though he has given them ample warning). My other impression is that it is utterly irresponsible for people to call this “censorship” given that Fitz will only succeed in pulling the books of shelves if he wins a suit against them–and until that time, this will ensure that the books sell in much greater number (and if he loses, which is the most likely, ensures they’ll continue to sell big).

    That said, I can’t help but wonder whether he knows of some back story to Lance’s book that he could get to with discovery.

    • skdadl says:

      … and to bmaz and LabDancer @ 22:

      Fitz’s letters (beginning Oct 2007 — does that affect the laches issues?) are well worth reading; in the second of them he quotes more of Lance than anyone most people here would ever want to read, and just about every sentence he quotes confirms LabDancer’s analysis @ 22.

      Unfortunately, the letters are on Lance’s site (link at Raw Story), and Lance supplies only one response from Harper Collins, the sweetly feeble letter to which Fitz’s second is the reply (devastating, I thought). Publisher’s sweetly feeble lawyer tries to argue at one and the same time that Lance never inarguably and explicitly imputes any such motives to Fitzgerald, and besides, even if and when he does, he puts his imputations in the context of conditional clauses and opinion, and everyone is entitled to his own opinion, eh? Heh.

      I don’t know what goes on in court, but I do know what goes on when book publishers get sued: money gets spent, a lot of money, ‘way more money than book publishers can normally afford, long before anyone gets to court. That’s your actual libel chill, and I mostly don’t like it either. I’ve watched publishers chew over nuisance threats. Some of them are brave enough to take the dare and keep going, which is often smart because most nuisance threats go away, but most publishers will fold fairly easily just because they can’t afford to defend, even when they’re right.

      To me, though, in this case it’s blindingly obvious that Fitz is right, but then I am NAL. (He is, though. *wink*)

      Anyway, those letters were for me a real edumacation and a great read as well — I can’t imagine why Lance is putting stuff so damaging to himself on his own site. Shame that we don’t have the whole series, which I suspect would make Harper Collins look even sillier.

  13. Mary says:

    I probably didn’t make the snark nearly as clear as I should have. Not only Atta, but walk the cat all the way to Zawahiri and before that to Qutb. My not too clear point was that despite all the huzzahs on how great these “harsh tactics” are, they didn’t prevent Egyptian participation in 9/11, an Egyptian co-host of Al-Qaeda, the Crime Show or keep people from supporting the Muslim Brotherhood etc.

    Torture has made al-Qaeda what it is today and Egyptian torture (with its CIA involvement) was particularly central to the evolution.

    No name for the kitten – hoping it will be eventually named by someone other than me when it goes to live elsewhere, but I’m not that optimistic there will be outside interest.

  14. Leen says:

    When I attended the nomination hearing for Holder close to inauguration day I stopped counting how many times he said “no one is above the law”

    too bad he does not mean what he said

  15. earlofhuntingdon says:

    The DoJ loses its legal argument over the breadth of state secrets, then submits a brief saying, “But I really, really meant what I said in my argument, and I hate to lose.” No new argument, just a Bush-like, “I want, I need it, I have to have it, or we’re all gonna die!”

  16. stryder says:

    This old KOS diary by leveymg…..4653/71820
    clarifies the evolution of events after watergate and the”reining in” of the cia and the effects of it.Consequently,the vacuum that was created in the international intel community allowed the AQ Khan/BAE and the whole outsoursing/slush fund mechanism of the Bush 1 era to evolve into what we proudly have today.

    “A large part of Valerie Plame’s job at CIA was to track the illicit trade in nuclear technologies peddled by Dr. Khan’s network. Khan’s Nuclear Walmart made it very easy for customers to buy what they needed to start home bomb-making. Khan’s one-stop shop for WMDs made it just as easy for the CIA to keep track of nuclear programs in at least half-dozen unfriendly countries, and a variety of criminal organizations in a dozen more that supplied money and know-how”

    “The Safari Club
    The Khan network was the product of more than an alliance against the Soviet Union. It sprang out of a post-Watergate era partnership between disgraced former covert operators who had been thrown out of American intelligence, the Saudi Royal family, and third-country partners who provided manpower and technical assistance. It was called, “The Safari Club”

  17. ackack says:

    Speaking of protection rackets, I’ve wondered for a few years whether or not there is actually a case for the application of RICO statutes by a creative prosecutor in the pursuit of justice for not only those engaged in the cover-up of torture cases, but that of wholesale wiretapping.

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