State Secrets Non-Compromise Compromise Architect to Replace Kagan

The great news just keeps coming.

Remember the “new” state secrets policy DOJ announced last year? It basically amounted to a promise that the Attorney General would review any invocation of state secrets to make sure such an invocation was really really secret rather than just sort of secret but really embarrassing, along with a promise that an Inspector General (but not a court) would investigate in case of wrong-doing (at the time, some of the existing state secrets invocations had already been investigated by IGs). Here’s how I described the “new” policy when it was announced.

What the “new” state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the “new” policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s “new” policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the “new” policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.

Well, the guy Obama plans to replace Kagan with is the architect of this “smoke and mirrors” policy.

The White House is poised to name Don Verrilli, an associate White House counsel, as solicitor general after Elena Kagan is confirmed to the Supreme Court. Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department’s new state secrets doctrine guidelines.


Verrillii’s trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs.  But he’s got the trust of Holder, Bauer, and President Obama.

I can’t wait to see what Obama has in store next to whittle away at the rule of law.

36 replies
  1. BoxTurtle says:

    What more does he need to do? He should have damn near everything he wants. Unlimited wiretapping. Military commissions. Drone strikes.

    Boxturtle (Perhaps he’s in his second childhood and wants that Pony he never got)

    • DWBartoo says:

      He NEEDS us all to appreciate and approve of what he is doing, that is the pony. Barack just wants to be loved. (He is not “secure” in his sense of his “position” in life, unlike … say, George W. Bush.)

      Like his friends, those “too big to fail” astuties, Obama simply cannot understand why so many people are upset with him.

      His initial response, will be to consider that he is surrounded by “unprivileged belligerents”, his second will be a signing statement …

      (I am feeling “different”, I didn’t want a pony, I wanted a motorcycle or an MG …)


      • BoxTurtle says:

        I was a true nerd, even as I child. I wanted the 12″ Celestron telescope with the syncronized clock drive. *sigh* I think I still want one.

        Boxturtle (Ended up with a chemistry set as a compromise)

        • DWBartoo says:

          Oh wow! Can I come over and look through it?

          That is the best one. Ya got great taste, BT.

          See, I can recognize talent AND some of the best products.

          I applaud the former … but, generally, can’t afford the latter.

          Classics are classic and nevah go out of style or lose their value.


    • razorbrain says:

      Hey, you left out the right to have you or me assassinated.

      We need a Moderator for Obama.

  2. earlofhuntingdon says:

    Now we see the 11-dimensional chess. Pity that Obama plays it on such a small and so personal a battleground: the appointment of his legal Praetorian Guard.

  3. sloopydrew says:

    Lawrence O’Donnel: Would you threaten to primary smoke if it didn’t work together with mirror?

    Markos Moulitsas: Yeah, absolutely. What smoke is doing is undermining mirror’s reform. He is making common cause with steam. And I think that is a perfect excuse and a rational one for a primary challenge.

    • fatster says:

      He’s stated his desire to be a good one-term president rather than a mediocre two-term president. We could keep reminding him of that, and that he’s making a record for himself that is below mediocre. Which I don’t think was his goal, either.

    • sloopydrew says:

      I was saying almost exactly that earlier today! Someone needs to primary Obama. He isn’t even going through the MOTIONS to show he values Liberal members. He didn’t even bother with a token nomination of a Liberal, before throwing his hands up and saying, “I tried. It didn’t work.”

      At least he PRETENDED to be for a “strong public option” before privately fighting against the idea. But watch toward the end of 2011 when he starts fighting for repeal of Don’t Ask and the closing of Gitmo. And Liberals will fall in line and vote for him, once again.

      “Ever get the feeling you’ve been cheated?”

      • BoxTurtle says:

        So who would we pick? Any primary challenge at all draws Hillary.

        Boxturtle (Feingold/Whitehouse!)

        • sloopydrew says:

          Hillary would be counterproductive. We don’t want to replace a Corporatist with another Corporatist. The person we would pick isn’t known to us yet. They’re as invisible as Barack Obama prior to 2004. They’re young, charismatic, idealistic (not pragmatic) and full of ideas, charisma and inspiration. They aren’t easily pushed around and they won’t assemble a team of corporate ass-kissers and Clintonites the second they get a whiff of power. I don’t know who that person is. If I could do it without having to lose 10 pounds, while doing something about my ridiculous haircut and fiery demeanor, I’d give it a try.

        • b2020 says:

          What’s wrong with drawing Clinton in? Clinton lost my respect (never had my vote, same as Obama) when she decided to let herself be co-opted as his Secretary of State, instead of going for Senate leadership with 2012 as a latent threat. A pox on both their campaigns, let them ruin each other, and any fool who still donates money to either one.

          Checks and balances. No president should be secure of his 2nd term nomination, ever.

          Instead, Bygones Habeas Obama handed out administration appointments to suck up every possible contender for the 2012 primary, no matter the consequences, and all those “heroes” swallowed them hook, line and sinker.

          A primary challenge is not the most important issue, NObama 2012 is. Just say NO on every vote, including that last one. No More Lesser Weevil.

      • emptywheel says:

        I quite literally am weighing whether I should be a precinct delegate again based on 1) whether I think I’ll want to work for this party in 2012, and 2) whether it might help a primary challenger.

        • Rayne says:

          Come on, I’m doing it so I can throw behind a challenger — especially if he happened to be Howard Dean.

          [btw, deadline is tomorrow. I have to run and get my application notarized.]

  4. temptingfate says:

    he’s got the trust of Holder, Bauer, and President Obama

    Holder, of anti-Miranda for accused “terraists” fame. That’s something to treasure.

    Jack Bauer certainly should be happy.

  5. sporkovat says:

    hmmm, a great soothsayer once described it as a Ratchet Effect in operation in American politics!

    The electoral ratchet permits movement only in the rightward direction. The Republican role is fairly clear; the Republicans apply the torque that rotates the thing rightward.
    The Democrats’ role is a little less obvious. The Democrats are the pawl. They don’t resist the rightward movement — they let it happen — but whenever the rightward force slackens momentarily, for whatever reason, the Democrats click into place and keep the machine from rotating back to the left.

    but (D) captured ‘progressives’ would never believe a cranky soothsayer like that, they preferred to believe in Hope-n-Change©, the Marketing Campaign of the Year!

    Hopefully, Professor Obama is teaching you a lesson you won’t soon forget about the Democratic Party and it’s real, actual priorities.

  6. geminorange says:

    He’s stated his desire to be a good one-term president rather than a mediocre two-term president

    Can anyone name an actual “good one-term president” who was around to possibly serve a second term?

  7. spanishinquisition says:

    “But he’s got the trust of…President Obama.”

    Which is the justification given to support Kagan for SCOTUS.

    • DWBartoo says:

      Coordinates, CT?

      Any links?

      Otherwise, I hope you will report back, that the rest of us may know what transpires.


      • CTuttle says:

        On MSNBC… Spitzer hogged the bulk of the interview and defended Elena at every juncture… Marcy was able to ask one significant question…

        Will she push back on Obama’s executive power grab…!

        Now, Jane is on about the BP oil spill…! ;-)

        • earlofhuntingdon says:

          I guess Spitzer wants back into politics. It’ll cost him more than $1000/hour with the current crop of senior Dems.

        • slide says:

          That Dylan allowed Spitizer to hog the entire interview was disgusting. EW hardly had an opportunity to speak.

  8. parsnip says:

    Isn’t it yet obvious that Obama is merely a figurehead, just as Bush was? Instead of acting surprised by the continuation of the closing in of the US, isn’t it past time to plan on how we expect to take care of ourselves when we can no longer rely on the trucks to deliver food to the local market, or our charge card/bank accounts to work?

    This post at Naked Capitalism may provide some needed perspective. Maybe the NWO folks are onto something.

    Another thing that’s been gnawing at me recently: why all the BSL-4 labs being built in major population centers, instead of keeping them isolated in places like Plum Island? And why has NIH’s bacteriology study been switched from MRSA and similar germs that actually cause many deaths in US hospitals, to Ebola, Marburg and other germs that are being developed as bioweapons, but don’t actually occur naturally in the US? The 2nd Amendment won’t help anyone against an ‘accident.’ And don’t accuse me of being a conspiracy theorist…..anthrax. We’ve been warned.

    The entire economy is a mirage at this point, with the petulant pundits trying to tamp down awareness, and shame the ‘angry populists’ back into their basements. [At the same time Dick Armey whips up their enthusiasm to vote for more Republicans.] It’s all out in the open now. The secret government is strutting in the emperor’s new clothes.

    Is the CFTC really going to find out the truth about JPM’s purported manipulation of the silver market? Has anyone checked Fort Knox recently?

    Does anyone take SCOTUS seriously as more than an enforcer of the empire? Does it matter any more who fills any of these positions?

  9. justbetty says:

    Obama and many Democrats in Congress have left progressives with no option but to make every effort to re-take the Democratic Party through the primary system. They know we would never vote Republican and even staying home and allowing the R’s to win isn’t palatable. A third party isn’t likely to succeed in the short-term and we need change in the shortest term possible. Any chance Al Gore- who has made many great speeches in the last few years would come back for another try given the crisis we face?

    • DWBartoo says:

      Shucks, Tracerfan, a flat tire or a used hankie could accomplish more than the entire political class (which includes the MSM, incidentally) put together, and would have been of more practical use to boot. Speaking of boots, an old one, made of rubber and full of holes would exhibit political skills far beyond the meager ken of even our “best” Congress critter, whomever that might be, assuming that term has any relevancy, as the “best” of the “worst” ain’t much to be braggin’ about …

      And a warm ham sandwich can “act” with more genuine humanity than any politician I can imagine, including the storied “O”.


  10. timbo says:

    Now that is what I call “triangulation”. Unpleasant triangulation. Must piss the Rethugs off to think of being out-maneuvered into getting their way this way.

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