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State Secrets Watch

By Dan Froomkin
12:00 PM ET, 04/29/2009

A federal appeals court yesterday dealt a massive blow to the the Obama administration's attempt to assert its right to avoid even modest judicial scrutiny simply by citing national security concerns. Here's the ruling. For background, read my April 9 post, Obama's State Secrets Overreach.

Carrie Johnson writes in The Washington Post: "A federal appeals court yesterday reinstated a lawsuit by five former detainees who sued a Boeing subsidiary over its alleged role in transporting them to foreign countries, where they say they suffered brutal interrogation under the CIA's 'black site' prison system.

"Three judges on the U.S. Court of Appeals for the 9th Circuit batted aside claims by the Obama administration that the suit would reveal 'state secrets' at the heart of the agency's covert operations and so should be dismissed....

"The unanimous panel...rejected administration arguments that the very nature of the dispute
was secret and said a judge should weigh, on a case-by-case basis, what kinds of evidence the detainees could receive and use in court....

"The appeals court panel noted in a footnote that the executive branch in the past had misused the state-secrets argument to cloak revelations that would embarrass federal agencies, rather than to protect sensitive operations from the eyes of enemies.

"To side with the government, the court ruling said, would mean that judges 'should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

Marc Ambinder blogs for the Atlantic: "A bottom-line read of the decision: the government can assert the privilege for any piece of evidence in any case. It just can't assert the privilege as an immunity doctrine -- or a justiciability doctrine -- as a way to end the case before it begins."

"This historic decision marks the beginning, not the end, of this litigation," ACLU staff attorney Ben Wizner said in a statement. "Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

Also yesterday, firebrand Democratic Senator Russ Feingold released his "100 Day Rule of Law Report" on the Obama administration. He gave Obama high marks for his executive orders to close Guantanamo, ban torture and increase transparency. But he gave Obama a "D" for his position on state secrets.

And Senator Arlen Specter (yes, that Arlen Specter) writes in the New York Review of Books: "In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support."

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