Thursday, September 9, 2010

Hello checks and balances; it's me: Mr. Grey

Unsurprising but depressing news: U.S. courts now agree that they shouldn't have the ability to review the executive's use of power. Yesterday, in a 6-5 decision, the Court of Appeals for the 9th circuit (one below the Supreme Court) ruled that people kidnapped by the CIA and subsequently tortured could not have their day in court because it is too dangerous for the terrists or somesuch. As Judge Fisher put it:

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security... Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

So what exactly does this "state secrets doctrine" mean? It does not just mean that some intelligence or operational details are too sensitive to be revealed to the public in a open court. Indeed, I'd have to agree that it would be mad that ongoing-operations might be jeopardized as part of hearing. But the ruling is far more sinister than that. The state secrets privilege means argues that some information is too sensitive for a day in court and so cases should be dismissed before they are seen. The logic of the doctrine is that even judges should not be allowed to look at information and thus determine whether or not it can be used in court as evidence. Ergo, the case gets shut down.

In other words, these judges agree with the executive branch that they if the President says some information is "too sensitive" then judges should just believe him. Bear in mind, aside from the various illegal detentions, tortures, and disappearances over the years, the executive recently ordered the assassination of an American citizen for national security reasons. Now the Court of Appeals for the 9th circuit agrees that not only should ordinary people have no way of finding out why, nor should the courts - the ostensible check over executive power.

Em, Court of Star Chamber much?

Also remember, this is Obama's DOJ that's arguing this. Imagine how much worse such abuse could be in the future.

Thomas Jefferson must be whizzing in his grave.