This is an effort to pre-empt legislation. And, I fervently hope, it’s an unsuccessful effort. In fact, I hope the transparent effort to pre-empt just stiffens the spines of the Congressional advocates.

Plaintiff’s end-run around this kafkaesque gambit to this point has, with the help of Judge Vaughan Walker, been masterful. It’s also been comical, much as parts of Watergate were. The minuet exposes the state secrets privilege for the farce it is, or can be. Here it’s every bit as cynical as Nixon’s claims of executive privilege. Many state secrets cases are weird, but here the embarrassment is already out. It’s like watching someone trying to stuff drugs back into his pocket with the police looking him straight in the eye, then asking them where their search warrant is with a “Who, me?” look on his face for good measure. But there’s also a world of evil here, as bmaz notes.

If the 2009 model of the doctrine is being rolled out for al-Haramain it’ll be like the last gasp of executive privilege in Watergate. Judge Walker has had the stamina of Judge Sirica, whose persistence brought out Richard Nixon’s shenanigans. And he’s vetted his procedures through the Ninth Circuit.

If the government wants to take this all the way up, the heat will be on SCOTUS because so much of this will be new to the public. The juicy facts will hit hard. That’s the flip side of its having stayed below the radar to this point. Wait till Jon Stewart and Stephen Colbert sic their writers on this case.

I’m betting on al-Haramain.

But then the big reason to do THAT is bc Horn would be remanded to Lambreth, who would rule against the government, who would then appeal to SCOTUS, who would then rewrite state secrets that way.

Is that a certified EW prediction, or a fear?

Bob in AZ

His state secrets policy, which, like torture policy, sounds better when described in the original German, simply continues whatever Obama inherited. As does Shrub with the 150 years of trust funds he will one day inherit, he wants to keep it all intact because that’s what works for him. He’s president, after all, but he’s no Kennedy, let alone a supremely confident FDR or TR; he’s more like Ike, but with less candor.

Obama does respond to political pressure. He’s comfortable accepting what comes from the right, but glad-hands what comes from the left, then washes his hands. (Ask Dawn Johnsen.) As he admits to Europeans, he’s not a socialist and no one in Europe or outside a Fox studio would mistake him for one. He’s a center-right politician and a reactionary, except when it comes to his own career and nuclear family.

Practical pressure, political, legal and news media pressure, he will respond to. That’s why he and Rahm are so anxious that liberals stop applying it. Thank you, bmaz, EW and Jane for turning a deaf ear to such pleas.

It wouldn’t surprise me to learn that this new policy was being presented before Walker this morning, and either the intelligence agency is being given a on OK to make secrets claims, or an investigatio”underway” would provide an excuse to delay the court proceedings until such a determination can be made.

If it’s the latter, and they disagree with the decision, they’ve got the ugly choice of swallowing hard and going along with it or reversing the filings and representations made in court. Neither would be palatable, but I’d guess that the former would win out every time with BushCo.

For me, it boils down to this: if Addington inserted himself into the work of OLC via Yoo et al., going around the AG, why do you think he would hesitate for a moment to do the same elsewhere at DOJ? They didn’t hesitate to overrule doctor’s “no visitors” orders at Ashcroft’s hospital bedside, nor Ashcroft’s own wishes in naming Comey as Acting AG. Why would they be filled with such respect for the AG in these cases so as to get him on board before the fact?