10 September 2010


Earlier this week, the civil libertarian side of the blogosphere was in an uproar over this 55-page opinion rendered by the Ninth Circuit, giving the Obama administration a watershed victory in its fight to unconstitutionally expand the legally dubious "state secrets" privilege. The plaintiffs, led by the ACLU, will almost certainly try to take their challenge to the Supreme Court.

The state secrets privilege has historically been a way for the federal government to shield certain documents from discovery in any number of cases, under the premise that such documents were a sensitive governmental secret or critical to national security. As a rule, it was limited to discovery disputes and the disgorging of documents that might in theory endanger the country.

Under the Bush administration, everything changed. As a part of the Bush White House's assault on civil liberties -- along with extra-judiical renditions, the PATRIOT Act, Jose Padilla, Yasir Hamdi and warrantless wiretapping, just to name a few -- the administration quietly expanded their conception of the state secrets privilege from a way to shield documents in discovery into a full-blown defense to lawsuits brought by private citizens to stop illegal governmental actions such as warrantless wiretapping. Most observers expected the Obama administration to roll back these abuses, and in particular, its conception of the state secrets doctrine.

Instead, in the above-cited case, the Obama administration has moved ahead full-bore with this patently offensive argument. By citing a laughably overbroad conception of this once-limited privilege, the Obama administration has argued that even if it (a) breaks federal law -- which it does every time it taps a citizen's telephone without a warrant in contravention of FISA, or (b) worse yet, imprisons someone without the right to counsel, a jury or even a formal criminal charge, it is wholly insulated from immunity simply because it is the government. The administration is effectively asking the judiciary, "Trust us. It's a secret." This is antithetical to the most well-settled constitutional ideals of divided government and limited executive power.

Of all the things that would make the Founders would roll over in their graves, this is the most repugnant.

The above cited Ninth Circuit decision has planted the seeds of what Hobbes termed the Leviathan. The ever-expanding national security state -- mining data, monitoring phone calls, blocking not only documents but entire lawsuits through an absurd conception of governmental privilege and ordering the extra-judicial killings of American citizens abroad by executive fiat -- has no identifiable boundaries.

What's perhaps most disturbing about this issue is that of all the issues where Democrats might have chosen to capitulate to the Cheney-Kristol wing of the Republican Party, this is the most critical -- and the most dangerous. It is unbelievable to me that any red-blooded American, who loves and believes in the Constitution, could find this abuse of power permissible.

I'd expect such behavior from George W. Bush and Alberto Gonzales. I can't believe I'm seeing it from Barack Obama and Eric Holder.

The imperial executive lives. And the national security state -- the most clear and present danger to the constitutional freedoms the Founders set out for us -- continues to charge on, unimpeded.

UPDATE: This outstanding editorial from the New York Times sets out the case against the state secrets doctrine and the Obama administration more eloquently and concisely than I could ever do. This might be the first time I've ever cited an editorial from the Old Gray Hag, but perhaps this is evidence of the shaky liberal-libertarian alliance on executive power abuses many have hoped for.

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