CT Blue

The Constitution really is on life support.

Citing the Obama administration’s evocation of the state secrets privilege, a divided federal appeals court agreed Wednesday to toss a lawsuit against a Boeing subsidiary accused of helping the CIA transport detainees to secret foreign prisons where they allegedly were tortured.

Ruling 6-5, a panel of the 9th U.S. Circuit Court of Appeals said it was bound by a 1953 Supreme Court precedent requiring judges to dismiss cases if litigating them could expose government secrets and imperil national security.

“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,” Judge Raymond Fisher wrote for the majority. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.

“On those rare occasions, we are bound to follow the Supreme Court’s admonition that ‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake,’” Fisher continued.

The honorable judge doth protest too much, methinks. In fact, the States Secret Privilege was first adopted in a case in which the United States government committed a blatant fraud on the court, and it has been successfully employed for just that purpose ever since. It may be a “rare” case in which it is raised, but it is an even rarer case where, once raised, the claim is seriously examined. It’s hard to believe that any judge really believes that there are state secrets involved in these cases; the privilege is raised for the purpose of avoiding responsibility and publicity. As in the case above, the government’s real motivations are always painfully obvious.

It’s truly depressing that the Obama administration has utilized these doctrines, though I suppose one could argue that Justice Department lawyers are only taking advantage of a legal principle that a misguided Supreme Court established. It is expecting too much, I suppose, to hope that Obama would break the mold, take the long view, and attempt to preserve a republican form of government.