State Secrets Santa and SCOTUS

Amid all the holiday hustle, bustle and, on at least some of the lame duck session accomplishments, success of Barack Obama, it is good to keep in mind what a lump of coal his administration has been on civil liberties and privacy. Nothing has been more emblematic of the cancer they have been in this regard than the posture they have relentlessly fought for on unfettered and unilateral ability of the Executive Branch to impose the state secrets doctrine to shield the government from litigation, even when it is concealing blatant and wholesale government criminality.

Just three days ago, the final judgment in al-Haramain was entered by Judge Vaughn Walker, and it was a good one. But, lest it be forgotten, the government basically refused to defend in that case, belligerently asserting that they were entitled to dismissal on the states secrets doctrine. That will be the government’s hard nosed basis for appeal to the 9th Circuit and, eventually, presumably the Supreme Court. Recently in the 9th Circuit the horrid en banc decision in Mohamed v. Jeppesen was entered granting nearly unfettered state secrets powers to the Executive and which the ACLU filed a petition for certiorari earlier this month. Both of these cases will likely hit the Supreme Court in 2011, with Jeppesen obviously further ahead in the process.

So, 2011 is going to be a busy and critical year for state secrets litigation in the Supreme Court, but those are just the two cases you likely know about; there is another case, actually two related cases combined, already racked and ready in the queue when the Supremes return to work in January. The cases are General Dynamics v. US and Boeing Company v. US, and they are not classic state secrets cases, but may well be used as a back door by the government to advance their unrestrained use of the doctrine. Lyle Denniston briefly summarized the nature of the cases:

General Dynamics and Boeing had a fixed-price contract to build an aircraft carrier-based version of the “stealth” fighter plane, but ran into difficulty meeting deadlines and producing models. They contended that they needed access to secret technology about the land-based “stealth” fighter, but the Navy would not release that to them. Ultimately, the Navy ended their contract. Their appeals, which the Court will hear together in one hour of argument, contend that it violated their constitutional right to due process to deny them a chance to defend themselves against the Navy’s claims that they botched the job.

These cases are set for combined oral argument before the Supreme Court on the morning of January 18, 2011. From Lyle’s description, it is pretty easy to see why litigants and observers of the civil liberties line of cases involving state secrets might be worried about a back door setting and expansion of the state secrets doctrine.

And so they are. In a little known amicus brief filed not long before Thanksgiving, al-Haramain lead attorney Jon Eisenberg and EFF trail counsel Cindy Cohn, who represents the plaintiffs in the Hepting and Jewel litigations, that were part of the consolidated NDCA multi-district litigation (MDL), but were dismissed as a result of the aggressive assertion of state secrets by the Bush and Obama Administrations, the Supreme Court has been asked to refrain from addressing state secrets in the General Dynamics/Boeing consideration.

Amici curiae anticipate that, if the Al-Haramain defendants choose to appeal the yet-to-be-rendered final judgment in that case, one of the questions presented on the appeal will be whether the state- secrets privilege has a constitutional basis in Article II. Amici curiae likewise anticipate that, in the pre- sent consolidated cases, the United States will argue in its merits briefing, as it did in opposition to certio- rari, that the state-secrets privilege has a constitu- tional basis in Article II. If the Court’s opinion includes a dictum addressing this question, it could affect the Ninth Circuit’s decision of an appeal (if there is one) in the Al-Haramain case.
In the present consolidated cases, neither the Court of Federal Claims nor the Court of Appeals for the Federal Circuit addressed the issue of whether the state-secrets privilege has a constitutional basis in Article II. Nevertheless, the United States has raised this issue in its opposition to certiorari, asserting that “[t]he state secrets privilege is deeply rooted in both ‘the law of evidence,’ and the Executive’s ‘Art[icle] II duties’ to protect ‘military or diplomatic secrets. Amici curiae anticipate that the United States may do so again in its merits briefing. (citations omitted)

In short, amici al-Haramain and EFF are arguing that state secrets was not an appellate issue relied on below, nor accepted for review at the Supreme Court and that, despite the Obama DOJ trying to inject it, the Court should ignore it. The amici feel that, should the Supreme Court address the constitutionality and applicability of the state secrets doctrine, it should be in a case where it is properly pled and before the court on the merits. They are right.

The problem, of course, is that the Roberts Court has demonstrated a remarkable ability to just reshape cases to suit their whims to form the law and precedent to their desire, to wit the Citizens United decision. This fear is undoubtedly exactly what is behind the interjection of the amicus brief in General Dynamics/Boeing. The rest of the brief, contained in Section II, is a fantastic description of the history and nature of the state secrets privilege from its inception in US v. Reynolds, why the privilege is evidentiary as opposed to constitutional in basis, and is well worth the read.

All I want from Santa and Christmas is for the Supreme Court to exercise some judicial restraint and not use General Dynamics/Boeing as a convenient mule to reset state secrets law ahead of the far more politically sensitive Jeppesen and al-Haramain cases that much more appropriately suit the merits of the issue. One thing is certain, directly contrary to the man he claimed to be when running for office, Mr. Obama will have his Acting Solicitor General, Neal Katyal, cravenly arguing for just such an injection and consideration of state secrets.

34 replies
  1. jpe12 says:

    Is state secrets doctrine w/in the purview of Congressional authority? Could they pass a law circumscribing its assertion in court?

    • OldFatGuy says:

      If the court ultimately rules that state secrets has a constitutional basis in Article II, then no, it would then be outside the purview of Congress to alter. I’m pretty sure Congress can’t re-legislate the Constitution, it would take an amendment to then change it. (or a new SCOTUS ruling I suppose?)

      • jpe12 says:

        Sounds right. It just seems like an odd duck of a doctrine; I usually don’t think of evidentiary rules as being rooted in the structure of the constitution (4th and 5th amendments notwithstanding).

        BTW, a little googling suggests that some courts have found it an outgrowth of article II, so you’re dead-on that Congress may not be able to touch it.

        • bmaz says:

          Kind of an esoteric question anyway, as the only thing Congress would likely do is affirm the craven use currently employed or make it worse – which, of course, is a separation of powers intrusion the similarly craven Obama Administration would gladly accept and ratify.

    • earlofhuntingdon says:

      It is, with the proviso that any constitutional parameters the Roberts Court decides belong to state secrets would not be subject to change by Congress.

    • Mary says:

      A more complex answer might be that if it is rooted in Article II powers (you know, the ones that Activist Judges have to make up bc they are not spelled out in the document) then Congress couldn’t legislation with respect to state secrets assertions TO THE EXTENT they are made with respect to legitimate exercises of Article II powers.

      This was really the reason for the language in the Exec orders on classification – that illegal and solely embarassing activities wouldn’t be “classified.” While states secrets are slightly different, it’s the same general concept. The Exec wants to be the one to decide not only to call something a state secret, but also do decide that it is being appropriately invoked. That’s why they published the “stay off my turf” exec orders with the hollow promise that things that are illegal won’t be classified. IOW – nothing to see here Congress and Courts, move along, move along.

      So we’ve moved on from the original Reynolds justification of military secrets that might jeopardize tech information, to Jim Comey telling the courts that they needed to quit picking on Larry Thomspon for his sign off on shipping an innocent man to torture – disappearing him from his wife and young children – bc, well, golly, it was a State Secret.

      And the Court’s have bought it all, hook, line and sinker. The Sup Ct has been as cowardly as any court could be, by repeatedly refusing cert, so that horrible lower court decisions stand, but the Justices don’t have to go to their graves with the legacy of an issued opinion waxing poetic over the important secrecy interests invoked by executive branch torture of innocent people without trial.

      • bmaz says:

        Yes. Should be noted for those who are not aware, that the facts in Reynolds, the original states secrets case, were every bit as much fraudulent and a cover up for government embarrassment and/or illegality as the Arar case Thompson signed off on. In fact, it is hard to think of examples of the invocation of state secrets that were not covers for government embarrassment and/or illegality.

  2. lefttown says:

    I think Obama put Elena Kagan on the court just so she would uphold his state secrets assertions. As Scott Horton wrote way back when she was being confirmed, Kagan is “enthralled” with the idea of the executive power, and as Marjorie Cohn noted back then, Kagan asserted the state secrets privilege is grounded in the Constitution. People were so “rah-rah Obama” back then (I’m not talking about FDL), they rationalized and vigorously supported every decision he made, including this disastrous one.
    We are screwed. We are not a country of laws; we are a country of crazy, buffoonish men and women making idiotic laws.

    • Ymhotep says:

      “Laws are like spiders’ webs which, if anything small falls into them they ensnare it, but large things break through and escape.” Solon (600 BC) For 2600 years little has changed. Peace

    • Mason says:

      I don’t know for sure, but I believe Kagan has recused herself from participating in the Boeing and General Dynamics cases because she was the Solicitor General when the Justice Department was litigating them. That raises the possibility of a 4 vs. 4 decision.

  3. JThomason says:

    Not sure a “unilateral” executive is much of an improvement over a “unitary” executive?

    Typo? I would think you meant the General Dynanics/Boeing matters are set for argument January 18, 2011.

    Season’s Greetings and thanks for your help this past year.

  4. OldFatGuy says:

    Doh, forgot my manners.

    Well done, as usual Mr. BMAZ. Thank you and hope you and yours are having a wonderful holiday.

    Woke up to snow flakes falling this morning. Doesn’t happen often at all on Dec 25 here in Loudoun County, Virginia, but did today. Enough to make a non-believer like myself want to say “Merry Christmas” out loud to everyone I see.

  5. mattcarmody says:

    Merry Xmas, bmaz. Thanks for taking time to do this one.

    You know, Scalia and the strict constructionists are quick to say that there is no privacy provision mentioned anywhere in the constitution when it comes to a citizen’s expectation of privacy. Where in Article 2 is the state secrets privilege mentioned or alluded to? They want the constitution to grow for them through repressive measures while anything smacking of an evolutionary trend is forbidden.

    Great day of basketball ahead.

  6. earlofhuntingdon says:

    The Sicherheitstaat is not a creeping or hidden, a tangential or collateral development. It is a priority actively being sought by the executive branch, with the full support of the Roberts Court and many in Congress. The law and the Constitution be damned, especially when greater power and nearly countless billions can be obtained by doing so.

    Oddly, I don’t hear many cries from the right asking, “What would Jesus do?” They’ve turned him into an Anglo-Saxon warrior king instead of a peasant village healer, but I suspect it’s because they would not like the most defensible answers. He might suggest we turn the other cheek, give Caesar his due so as not to invite wholesale slaughter of the innocent by an occupying Roman army, or teach that God is within us, and not to be confused with a public altar, governmental or religious. He, or God in her wisdom, might also point out the obvious, that free will comes with the obligation to use it to defend the rights we once imagined were immutable.

  7. TheMaven says:

    Just as a point of procedural clarification: with al-Haramain not even yet before the Ninth Circuit and Jeppesen already before the Supreme Court (albeit at the cert petition stage), it is likely that the appeal in al-Haramain will be put on hold in order to see what SCOTUS does. Indeed, barring an extension of time for the government’s response brief it is probable that Jeppesen will be addressed at one of the justices’ February conferences; if the Supreme Court fails to grant cert, there would be no impediment to al-Haramain moving forward (this would be prior to the time for the opening appellate brief in any event), but this would also mean that the Ninth Circuit precedent as to state secrets set in Jeppesen would be the governing law of the court.

    If SCOTUS does grant cert in Jeppesen, however, the Ninth Circuit would likely issue a stay in al-Haramain — either delaying briefing or any possible oral argument — until after the decision in Jeppesen (which, barring an expedited briefing schedule, could be argued before the Supremes as early as next October with a ruling anytime from December to the follwing June). Only then would the al-Haramain appeal move forward, pushing the panel decision there into the 2012-13 timeframe. Then, there’s a possible en banc rehearing, and, well, you get the idea. It’ll probably be quite a while before al-Haramain is fully resolved.

    • bmaz says:

      al-Haramain won’t be put on hold as its merits do not lend itself to necessarily being controlled by Jeppesen, although it may be affected. That said, yes al-Haramain is behind the others and may not make it to SCOTUS in 2011. Or it may if there is no en banc. We shall see.

      • TheMaven says:

        True enough, but in my experience of watching cases of a similar nature that have been/are on appeal before the Ninth Circuit, the court has a tendency to put matters off to the side if it expects that a pending Supreme Court case may influence some portion of the appeal before it, then ordering a round of supplemental briefing on the effect, if any, of the SCOTUS opinion.

        Even with no stays or extensions, briefing before the Ninth Circuit won’t be completed until late spring, followed by oral argument and then the wait for a decision. (Jeppesen moved at a fairly standard clip, and it took 13 months from the filing of the appeal to the initial panel decision.) Either way, I believe the chance that al-Haramain could make it to the Supreme Court even in time for the 2011-12 Term is exceedingly small, but we shall indeed see.

        • bmaz says:

          Well I know for a fact that there was intentional delay by the original panel hoping for a different policy decision by the new administration and that they were dismayed to not get one. Doesn’t cut that much off though I suppose, which still makes your point perhaps likely. It would be nice to not see this go on forever though, because I think the composition of the Supreme court is only going to get worse; the only question is whether it is another Kagan or worse from Obama or a Tea Party appointee from the new GOP president. The one thing that is darn near certain is that the ideological balance will be again moving substantially the wrong direction for consideration of civil liberties and privacy issues.

  8. fatster says:

    Well, this is a secret no more:

    WikiLeaks: How U.S. tried to stop Spain’s torture probe

    “It was three months into Barack Obama’s presidency, and the administration — under pressure to do something about alleged abuses in Bush-era interrogation policies — turned to a Florida senator to deliver a sensitive message to Spain:

    “Don’t indict former President George W. Bush’s legal brain trust for alleged torture in the treatment of war on terror detainees, warned Mel Martinez on one of his frequent trips to Madrid. Doing so would chill U.S.-Spanish relations.”


    • OldFatGuy says:

      Three months in.

      After a year and half long campaign of “I’ll be bringing the rule of law back to the White House.”

      Year and a half. Three months.

      How much proof do his supporters need before they realize what a lying asshole he is?

  9. bmaz says:

    Supposedly from a long past OLC Christmas party. Those DOJ folks are so hilarious. Via Volokh

    You’d better watch out,
    You’d better not cry,
    You’d better not pout;
    I’m telling you why.
    Santa Claus is tapping
    Your phone.

    He’s bugging your room,
    He’s reading your mail,
    He’s keeping a file
    And running a tail.
    Santa Claus is tapping
    Your phone.

    He hears you in the bedroom,
    Surveills you out of doors,
    And if that doesn’t get the goods,
    Then he’ll use provocateurs.

    So–you mustn’t assume
    That you are secure.
    On Christmas Eve
    He’ll kick in your door.
    Santa Claus is tapping
    Your phone.

    • JohnLopresti says:

      Pretty funny lyrics, especially from EV*s sparse site. Must be Capital Steps were invited to perform one of their parodies at olc.

      Re Boeing matter, I wonder how firmly their EVP and general counsel JMLuttig would like to advance the blanket of secrecy.


      what a lump of coal his administration has been on civil liberties and privacy

      I would like to scan toward another issue pertaining to the first of the binary propositions in that quote from the post, namely, a North Carolina case and one in GA,also cf. GAv Holder there, both attempting to send a vote suppression fullback thru a hole Roberts put in the defensive line by his neoRehnquist rambling opinion of a SuperScotus majority in re Namudno (north Austin municipal utility district one; subsequently dissolved as an organ of government, by the way, in my opinion, in recognition of the veracity of the original ethnic profiling bias charges), TX Namudno slip opinion there.

      Re the NC case, Kinston; a recent decision appears to be propelling it closer to Scotus; see also opinion from last week, there. The issue at the center of the government*s protection of citizens in Namudno and Kinston, is the same one DeLay regerrymandering in TX set off in Lulac v Perry, which latter plaintiff (Lulac) Scotus partly made whole; namely, the civil division*s watchdog role under VRA section 5 with respect to mandating preapproval of any electoral law change in regions which have a record of cronyist suppression of voters. Which is to say, the Republicans are looking to remove the preclearance requirement, and have two cases in the pipeline toward Scotus to achieve that end.

    • Mary says:

      He posted the old version.

      The updated Bush-Obama ditty goes something like:

      You’d better watch out,
      look up in the sky,
      You’d better not doubt;
      Better say your good bye.
      Santa Claus is droning
      Your home.

      He’s paying out bounties,
      For kids he pays five,
      He’s razoring genitals
      And burying alive.
      Santa Claus is beating
      the prone

      He hears you in your cages,
      Videotapes your screams and moans,
      After sharing with Senate pages,
      Then he’ll freeze you all alone

      So–you mustn’t believe
      In Justice tonight.
      On Christmas Eve
      She’s lost more than her sight
      The OLC will help with hiding
      Your bones.

      Those jokers at OLC. At least they enjoy their work.

  10. jdmckay0 says:

    Haven’t seen it mentioned in your 2 posts on this matter (correct me if wrong), but Walker also had something to say about Yoo:

    Between October 2001 and May 2003, Deputy Assistant
    Attorney General John Yoo in the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”) was the only OLC official who was informed of the existence of the PSP. Yoo drafted a November 2, 2001 memo supporting the legality of the PSP and in particular focusing on the TSP and its legality in light of FISA. Id at 16. Yoo reasoned that FISA should not be construed to restrict the president’s authority in the national security area in the absence of a clear statement in the statute and that such a construction would unconstitutionally infringe upon the president’s Article II authority. Id at 17.
    After Yoo resigned in May 2003, his successor, Patrick
    Philbin, was briefed on the PSP and became the new advisor to the
    Attorney General concerning the PSP. Doc #671-2/104-2 at 24.
    Philbin’s supervisor, Assistant Attorney General Jack Goldsmith,
    was also briefed on the PSP. Id at 24-25. Philbin and Goldsmith
    found flaws in Yoo’s legal analysis supporting the legality of the
    PSP. Id at 25. They noted that Yoo had failed to address a
    provision of FISA demonstrating that the statute was intended to
    apply to the president’s wartime actions.

    And w/that in mind… eg: that Yoo’s rationale (as w/much of his other “opinions”) ignored FISA provisions which addressed what Yoo said did not exist:

    “Wholly apart from the apparent weakness of Yoo’s legal analysis, it is disquieting that for more than a year and a half, sole responsibility for determining the legality of the (program) was reposed in a single official,”

    I see Yoo is still “rallying the troops” w/semi regular WSJ OpEd’s promulgating poop.

    The irony that BushCo largely gets a pass using Yoo as legal cover for those “intelligence” efforts, because BushCo used Yoo’s opinions exclusively (who could have known?)…

    I don’t know. Looks to me like Feds successfully maee Yoo the fall guy for these “failures”, except Yoo has not fallen… hardly been bruised.

    • bmaz says:

      Yes and no. Walker took that from the statement of facts proffered by the plaintiffs, which were effectively uncontested by the government because the government refused to participate in that process, instead maintaining that such a process was illegitimate because they were entitled to dismissal – largely on state secrets grounds. That said, it is clear that Walker found those allegations by plaintiffs persuasive.

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