Comments on: More on Holder’s “New” State Secrets Policy

By: Clavis

Clavis — Thu, 24 Sep 2009 11:08:23 +0000

The new policy is clear: it says that an opaque bureaucracy exists to supervise the other opaque bureaucracy, and that you have the right to ask Bureaucracy B to consider investigating Bureaucracy A if you have concerns *and* those concerns are shared by Bureaucracy B. Maybe. Sometimes.

What could be clearer than that?

By: tbau

tbau — Thu, 24 Sep 2009 10:58:11 +0000

absolute disgrace.

i wish obama more jowls and more neck flap. it’s coming–he’ll get the face he deserves

By: freepatriot

freepatriot — Wed, 23 Sep 2009 18:20:31 +0000

we can not put law and justice aboard ships in books

honor and justice must reside in the captain, or they be not aboard

hey, captain Obama, you got some splainin to do …

for the record, it’s from the 50s version of “Mutiny” staring Brando

By: Mary

Mary — Wed, 23 Sep 2009 18:17:11 +0000

I guess for some reason this delivery didn’t get nearly the attention as the selection of the puppy.

By: 4jkb4ia

4jkb4ia — Wed, 23 Sep 2009 18:10:51 +0000

I think I am beginning to see this. Given the shenanigans in al-Haramain, even if the judge could see the evidence and wants to, the judge may not be able to control whether the lawyers see it or not because the agency(say, DOD) has the power to grant the lawyers the security clearance to see the information.

By: bmaz

bmaz — Wed, 23 Sep 2009 18:00:12 +0000

If the Justice Department signs off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government’s reasoning. A judge could request access to particular pieces of underlying evidence.

The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.”

That is functionally exactly what happens already.

By: MadDog

MadDog — Wed, 23 Sep 2009 17:58:05 +0000

I see it the same way you do. A totally backasswards repudiation of the DOJ’s own exclusive criminal prosecutorial responsibilities.

And I don’t know how anyone, including the legal beagles in DC, could see it any other way.

Did Eric Holder even read this before he signed it?

By: 4jkb4ia

4jkb4ia — Wed, 23 Sep 2009 17:51:42 +0000

Charlie Savage has more, since I just read it:

“If the Justice Department signs off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government’s reasoning. A judge could request access to particular pieces of underlying evidence.
The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.”

He then rounds off with a quote from Nadler: “Congress must still enact legislation that provides consistent standards and procedures for courts to use when considering state secrets claims.” I.e. the executive branch doesn’t have the power to order Article III to evaluate classified evidence or claims.

By: MadDog

MadDog — Wed, 23 Sep 2009 17:49:06 +0000

I see it more like EW and bmaz where the DOJ is attempting to again work the refs (i.e. Judge Walker, Judge Sullivan, Judge Bates, etc.) in stating that the Judiciary cannot ever determine what is classified and who is entitled to access said classified material.

By: bmaz

bmaz — Wed, 23 Sep 2009 17:36:14 +0000

When you put it that way, what’s not to love?