Good news on the Government Front

NO, I am not talking  about Arlen Specter’s switch from R to D – forgive my wet-blanketness, but I don’t think it’s that significant. 60 nominal Democratic-caucusing Senators (when, not if, Franken gets seated) does not make a “filibuster-proof majority” as all  the overexcited pundits claim.

60 Republicans might, since those guys are so good at marching in lockstep, but Democrats are a herd of cats to begin with, and a number of those cats are Blue Dogs aka DINOs, and Specter isn’t even trying to hide the fact that he’ll be an even less reliable Dem In Name Only than LIEberman (who isn’t a Democrat at all, lest we forget – he’s the sole Member of the Connecticut-for-Lieberman Party). Apart from discombobulating the Republican Rump Specter’s nominal switch doesn’t actually mean that much.

He’s still committed to opposing EFCA, which is easily among the top handful of Democratic initiatives, for example, and he’s still opposing Dawn Johnsen as head of the Office of Legal Counsel. Speaking of which, that somewhat relates to what I do consider good news – a defeat for the Obama Administration’s Department of Justice courtesy of the Ninth Circuit Court Of Appeals.

I see some heads asplodin’ back there, I’ll wait while you gather up the pieces… Yes, I’m an Obama supporter, and I worked my ass off getting him into office, but that doesn’t mean I uncritically think his Administration is always in the right, and in this case they did a complete 180 degree turn from what candidate Obama ran on. He’s a better-than-average politician but he’s still a damn politician and you can’t ever trust them completely.

For those who don’t want to wade through the pdf, there’s a long-standing and reasonable practise of allowing the government to classify documents as secret when national security concerns dictate they should be, even in cases where the government is a party to the action. This has historically been done on a document-by-document basis in consultation with the judiciary; as was their wont in so many arenas, the Bush Administration expanded the scope of this abusively and beyond all reasonable bounds (see also ‘Executive privilege’ and ‘Recess appointments’).

Along with other Democrats candidate Obama questioned the appropriateness if not the legality of the Bush DOJ’s claim that they were entitled to dismiss entire lawsuits, sight unseen by the Judiciary, simply by claiming that the very grounds for the suit were secret matters of national security. Think about that claim a moment, until you realise how very Kafka-esque it is; the suit cannot even be presented because its subject matter is declared secret. Why is it secret? Can’t tell you.

Candidate Obama opposed such abuses of the state secrets doctrine, but having succeeded a Presidency that had largely gotten away with it, President Obama’s DOJ (verbally supported by the Big O himself) proceeded to fully endorse it and even sought to expand it in some cases.

Well, to make a long story shorter than I could make it, today the Ninth shot that notion down and made the understanding of the state secrets doctrine as understood prior to Little  Boots’ ascendancy explicit. Entire suits cannot be dismissed on a claim of secrecy,pertinent  documents must be classified on an individual basis, and the need for secrecy must be argued to the Judiciary, not simply  declared ex nihilo by the Executive.

It’s a great step toward restoration of the genuine rule of law, allowing the alleged torture victims in the case their day in court. It’s a damn shame that it happened in spite of Obama’s DOJ, rather than with their support, and it’ll be a damneder shame if they have the further gall to appeal the ruling – but somehow, I suspect they will.


~ by B.T. Murtagh on April 28, 2009.

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