back to the law…

Posted on Thursday 30 April 2009

Of the many ways that the Bush administration sought to evade accountability for its violations of the law and the Constitution under the cover of battling terrorism, one of the most appalling was its attempt to use inflated claims of state secrecy to slam shut the doors of the nation’s courthouses. Sadly, the Obama administration also embraced this tactic, even though President Obama criticized the cult of secrecy while running for office, leaving it to the courts to stand up for transparency and accountability. And that is just what a panel of the federal appeals court in San Francisco did on Tuesday by firmly rejecting the claim that the government can prevent a judge from even hearing those who say they were hurt by federal polices and actions.

The unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit reinstated a civil lawsuit brought against a government contractor by five victims of the extraordinary rendition program, under which foreigners were kidnapped and flown to other countries for interrogation and torture. The panel said the government can ask a judge to decide on a case-by-case basis whether disclosing particular evidence would jeopardize national security. But it recognized the affront to civil liberties and the constitutional separation of powers in the Justice Department’s argument that the executive branch is entitled to have lawsuits shut down whenever an official makes a blanket claim of national security. Michael Hayden, the former director of the Central Intelligence Agency did that, quite unconvincingly, in this case.

“According to the government’s theory, the judiciary should effectively cordon off all secret actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law,” Judge Michael Hawkins said in the opinion. Doing so, Judge Hawkins said, would “perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of the judicial process”…
Appropriate to the last post, this decision is about the Rule of Law. Rather than "the Bush administration … attempt [ed] to use inflated claims of state secrecy to slam shut the doors of the nation’s courthouses. Sadly, the Obama administration also embraced this tactic…" I would have said that the courts are finally reasserting their dominion over such matters. As we’ve discussed the roots of the Bush Administration’s  assault on America, we’ve mainly focused on the Neoconservatives at the American Enterprise Institute, or the offshoot Project for the New American Century, or the Republican Party, or the secrecy and duplicity that whirls around any place that opens its doors to Dick Cheney. But there’s another dark force in Washington, maybe at the root of more mayhem than any other – the Federalist Society.
We’ve been reading a lot about the Bush Administration lawyers. They come from a group called the Federalist Society, or at least represent its views. It is a group of conservative lawyers that are the force behind many of the odd ideas that came to us during the Bush Administration. – for example, the "Unitary Executive." Their mantra was to stop "liberal judges from legislating from the bench." Their M.O. is, however, to place their own judges on the bench [Scalia, Thomas, maybe Alito and maybe Roberts] who legislate in a right-wing way.

No discussion of the great "right wing" conspiracy theories is worth its salt without a thorough look at the Federalist Society. And no look at the Federalist Society is complete without a look at Robert Bork, Reagan’s failed nominee to the Supreme Court. Said Ted Kennedy on the Senate Floor on hearing of Bork’s nomination:
"Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice."
The point of this decision isn’t what the DoJ did, or Eric Holder, or Barack Obama. The point is that Judges are back to doing what Judges do – make judgments. With Bush and the Republicans out of office, the next big roadblock is the Federalist Society. They have an idiosyncratic reactionary view of our legal system that lurks behind the judicial paralysis of the Bush years. They’re still here, all over the place…

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