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”…
"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."
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