Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
This may be the single best description of the reality of the Bush/Obama doctrine of the state secrets privilege, which says that the moment the executive branch says that a given subject is a secret, the courts must immediately adjourn the case and refuse to hear any further arguments on the matter.
This is the opening statement in an ACLU brief filed in the Mohamed v. Jeppesen Dataplan case, brought by five men who were tortured after our government flew them to other countries and turned them over specifically for that purpose (apparently, the Bush administration was outsourcing torture at the same time they were engaging in it themselves for some reason):
Much is at stake in this appeal. Should the government's overbroad and premature assertion of the state secrets privilege prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
Spot. On. The brief continues:
According to the government's proposed framework, it is the CIA Director who decides - before the case has even begun - what evidence will be "central to the allegations and issues in th[e] case," and it is the CIA Director who determines what information is classified and thus off limits for judicial scrutiny. Although the government pays lip service to the "essential independent Article III responsibilities" of this Court, it appears that the Court's "responsibilities" begin and end with dismissing the case when the CIA Director so insists.
I simply can't imagine how any federal judge, who pledges to uphold the constitution, could possibly dismiss this argument. It is so obviously true that holding the contrary is utterly perverse. Yet that is precisely the position taken by both the Obama and Bush administrations.
Politics
Comments
B-B-But....Obama's a liberal! They say so on t.v., so it must be true.
Posted by: jws | December 22, 2009 9:42 AM
I think the trick here is to convince the republicans that this state's secret thing is all a liberal/muslim/commie/fascist plot to take over the country and allow them to torture good 'murkins and, of course, Patriotic Republicans (redundant, I know...).
If we could get the party of 'no' to come out and demand investigation into the coverups and abuses of the states secret privelege, maybe we could make some headway.
Now, how do we get Faux Noise to convince the teabaggers??
Posted by: FastLane | December 22, 2009 10:25 AM
Tell them that Obama's real birth certificate has been declared a state secret.
Posted by: Jeremy Shaffer | December 22, 2009 11:01 AM
Tell them that Obama's real birth certificate has been declared a state secret.
LMAO!
Posted by: Madrocketscientist | December 22, 2009 11:48 AM
There is no more significant case working its way through the court system right now than this one. An unconstrained executive -- free from meaningful oversight by an independent judiciary -- reduces the rest of the Constitution to a mere matter of executive discretion and convenience. At that point, we cease to be a nation of laws.
Posted by: Dan | December 22, 2009 1:54 PM
@FastLane: Convince them it's a fascist plot? They know it is - they're the fascists that put it in there; Cheney is laughing his ass off.
Posted by: MadScientist | December 22, 2009 3:13 PM
apparently, the Bush administration was outsourcing torture at the same time they were engaging in it themselves for some reason
Actually, there's a very _good_ reason for that: Those other countries would torture the detainees much worse then we would. Bush and company figured they could get away with water-boarding and sleep deprivation, but not beating peoples genitals with rubber hoses, or cutting off body parts.
Posted by: Mike Crichton | December 22, 2009 6:18 PM
I'm surprised there are so few comments on this.
Ed, this is the kind of stuff that I really appreciate getting from you. I admit that when I first came across your derision for Obama's Justice Dept stances, I was skeptical. But there have been enough obvious examples of it that I'm forced to agree. I find myself forced to agree, also, with PZ's explanation a few days ago, along the lines of, "We didn't elect a liberal Democrat, we elected a moderate Republican." I still have hopes for him on an international level, but I've pretty much thrown in the towel on anything domestic.
Too bad.
Posted by: Kris | December 24, 2009 6:23 PM
jws: B-B-But....Obama's a liberal! They say so on t.v., so it must be true.
Well... he was not merely a lawyer, but a law professor. So, it's possible that he's directing the Justice Department to take a position that he knows is Constitutionally indefensible in the hope of getting a ruling from the Judiciary to put this sort of antics thoroughly (barring constitutional amendment) beyond the reach of the Executive in the future.
(I'm not betting on it, mind you.)
Posted by: abb3w | December 27, 2009 8:14 PM