State Secrets Litigation

Glenn Greenwald is up in arms about the Obama Administration's advancing the same, extreme interpretation of State Secrets Privilege as the Bush Administration:

It's really remarkable what happened. One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.

It's a double-edged sword, though, isn't it? By pushing the Bush Administration's interpretation, the Obama Administration ensures that there will be an appellate court ruling on that interpretation, likely followed by a Supreme Court ruling on that interpretation. Either the courts will reject the Bush/Obama Administration arguments, or they will find them constitutional.

Perhaps that's the worst case scenario for opponents of State Secrets Privilege - that the Supreme Court will give the Bush Administration's extreme views its seal of approval. But if the issue isn't litigated, the issue remains open. Even if Obama backs down, a future administration will reassert the extreme interpretation presently before the courts. Is it truly better "not to know"?

Habeas Corpus - A Victory For Judicial Conservatism

Like mythago, I can hardly wait to hear how the political right reinvents the proposed judicial activism of the dissenting justices into conservatism, and the majority's respect for the Constitution as judicial activism. It all seems to boil down into a giant, "How dare judges question the unlimited power the Constitution grants the king unitary executive!"

You know what? When you intentionally disregard the text of the Constitution, two centuries of historic practice, and two centuries of jurisprudence in order to try to create an entirely new system by which you can detain and try "enemy combatants", you shouldn't be too surprised when the courts occasionally take issue. Giving all due respect to Scalia's desire for deference to the Bush Administration's interpretation of Johnson v. Eisentrager, who but a judicial activist would argue that the Executive's interpretation of a judicial interpretation of the Constitution should take precedence over the Constitution itself, let alone that it should preclude the Court from clarifying its own prior opinion?

I take issue with the Chicken Little hysteria of Scalia's dissent. The sky isn't falling. The nation will survive. And if the best framework he can provide for his dissent is a dramatic pounding of the table, it's reasonable to infer that not even he thinks much of his legal argument.