Wednesday
Quis custodiet ipsos custodes
Marc Ambinder talks to an unnamed Obama administration member (or possibly multiple officials, they're unnamed, so it's unclear) about the Obama/Holder DOJ's continued assertion of a broad and dangerous version of the state secret privilege, referenced in the post immediately below (the part about "there oughta be a law"). I'd really like to believe that what the administration is doing in Jeppesen Dataplan is ok, but a large part of the argument made by the administration member Ambinder talks to seems wrong as a matter of law, and so far I can't help but think that what they're doing is just covering up for evil and further harming the people (the plaintiffs) that evil was done to.
Ambinder summarizes what he's going to say in the rest of the post, when in the third paragraph, he says, “Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.” Maybe I'm confused, but I'm pretty sure this last part, about the domino effect, is false. How could deciding that the privilege was improperly asserted in one case prejudice the DOJ's ability to decide that it was properly asserted in other cases, or to assert it in the future? One of the main things lawyers do is distinguish the ways in which different cases are relevantly different, it just seems crazy to say that a retraction here has any consequences for other cases. The reason not to retract in Jeppesen Dataplan has to be that privilege is proper in that case, not that it might be proper in other cases.
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Ambinder summarizes what he's going to say in the rest of the post, when in the third paragraph, he says, “Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.” Maybe I'm confused, but I'm pretty sure this last part, about the domino effect, is false. How could deciding that the privilege was improperly asserted in one case prejudice the DOJ's ability to decide that it was properly asserted in other cases, or to assert it in the future? One of the main things lawyers do is distinguish the ways in which different cases are relevantly different, it just seems crazy to say that a retraction here has any consequences for other cases. The reason not to retract in Jeppesen Dataplan has to be that privilege is proper in that case, not that it might be proper in other cases.
