Legal Commentary

Did anything change? "No, your honor"

By Big Tent Democrat

That is the damning reply delivered by an Obama Justice Department official today in the oral argument in the Jeppesen extraordinary renditions flights case. The NYTimes reports this exchange:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied. “The change in administration has no bearing?” she asked.

“No, your honor,” he said once more.

The Obama Administration, trying to deflect the stain of this exchange, stated that:

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.

Putting two and two together, one of two things has happened - Holder reviewed and approved the state secrets assertion in the Jeppesen case (and indeed the government attorney arguing before the 9th Circuit said as much) or the government attorney misled the 9th Circuit panel.

The Justice Department spokesman is clearly, imo, misleading here. The Jeppesen case is clearly one where the state secret privilege is poorly invoked. Indeed, there is no secret anymore as to what happened.

Holder and the Obama Administration are BSing us on this issue. Unlike some, I believe that there are appropriate situations for application and invocation of the state secrets privilege. I think it serves an important function. The Jeppesen case is about as far a case as one could imagine where the invocation of the state secrets privilege can possibly be deemed appropriate.

Greenwald has wall to wall coverage.

Speaking for me only

Full post as published by TalkLeft on February 09, 2009 (boomark / email).