Editore"s Note
Tilting at Windmills

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November 8, 2007
By: Kevin Drum

GAG RULE....You may recall an incident a couple of weeks ago in which a circuit court opinion regarding an Egyptian national named Abdallah Higazy was partially sealed by the court. We know about this because the full opinion was accidentally posted on the web for a few hours before it was replaced with a redacted version, and the full version included passages in which Higazy described how he had been treated by the FBI. Marty Lederman comments:

The story about the publication, redaction, and attempted suppression, of the court opinion is, of course, very interesting and important in and of itself.

But let's not lose sight of the more fundamental problem: What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development — the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?

Actually, I can think of plenty of doctrines in law that permit this. Chinese law, Burmese law, and Zimbabwean law spring to mind. Nothing, until now, in American law, though.

Kevin Drum 2:54 PM Permalink | Trackbacks | Comments (51)

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Comments

As long as people like eggy and al are a-scared of mean brown people, laws are irrelevant.

Posted by: Gore/Edwards 08 on November 8, 2007 at 2:57 PM | PERMALINK

American law? How quaint.

Posted by: steve duncan on November 8, 2007 at 2:59 PM | PERMALINK

The 9/11 Doctrine?

Posted by: scarshapedstar on November 8, 2007 at 3:00 PM | PERMALINK

We're slocuing our way toward fascism.

If we don't stop it, we deserve it.

Posted by: SteveAudio on November 8, 2007 at 3:01 PM | PERMALINK

that's "slouching"

Posted by: SteveAudio on November 8, 2007 at 3:02 PM | PERMALINK

*

Posted by: mhr on November 8, 2007 at 3:02 PM | PERMALINK

Darkness at noon in America is not a potential actuality.

Posted by: Brojo on November 8, 2007 at 3:10 PM | PERMALINK

What would you expect from an administration lead by a man who says to Musharraf in all seriousness: "[Y]ou can't be President and head of the military at the same time."

At least Bush finally admits that he is not the head of the military.

Thank goodness, I don't think they can stand another minute of his "leadership."

Posted by: anonymous on November 8, 2007 at 3:10 PM | PERMALINK

stumbled across this recently. here's another interesting way they will spy on you:

I live in Austin Texas and the police have signed an agreement with the local utility company Austin Energy. They now have their own account login that they use without getting a subpoena. The narcotics department is using this to data mine the utility records for high utility usage. This in my opinion is a warrant less search. This is enough for them to get search warrants for those residents looking for marijuana indoor grows. They have performed dozens of raids based on this and are ramping up and expanding their task force due to the massive amounts of properties and $$$ seized in the raids. They are now getting the DEA involved which is splitting a slice of the pie because they have a lot less oversight and the overwhelming negative odds of winning at the Fed level.

http://www.iwasthestate.com/2007/10/pot-police-and-your-electricity-bill.html

Posted by: linda on November 8, 2007 at 3:12 PM | PERMALINK

George Will, commenting on the presidential motorcade during the inauguration of George Bush in 2004 (Names and Faces, Style Section, Washington Post, January 22).

"It looked like a military occupation proceeding through a hostile city, like the leader of a banana republic worried about a restive tank regiment."

So that's your answer. We are living in a banana republic.

Posted by: Pale Rider on November 8, 2007 at 3:15 PM | PERMALINK

What would you expect from an administration lead by a man who says to Musharraf in all seriousness: "[Y]ou can't be President and head of the military at the same time."

I find it more telling that GWB keeps asking Mush to take off his clothes....

Posted by: Disputo on November 8, 2007 at 3:31 PM | PERMALINK

We are living in a banana republic.

Crap! I can't afford decent clothes now, and I thought I was living in a Target.

Posted by: thersites on November 8, 2007 at 3:34 PM | PERMALINK

Regressing to a Banana Republic is hard work.

Posted by: ckelly on November 8, 2007 at 3:35 PM | PERMALINK

Kevin: Actually, I can think of plenty of doctrines in law that permit this. Chinese law, Burmese law, and Zimbabwean law spring to mind.

Liberal Supreme Court Justice Stephen Breyer actually cited Zimbabwean law in deciding a case focusing on allowable delays of execution (Knight v. Florida). So, according to Justice Breyer, it seems we're already governed by Zimbabwean law.

Posted by: ex-liberal on November 8, 2007 at 3:36 PM | PERMALINK

Whoops. Commented before reading down to Pale Rider's "banana republic" reference. Honest.

Posted by: ckelly on November 8, 2007 at 3:37 PM | PERMALINK

When I think of that whole "banana republic" fashion look, I think of Glen Frey on Miami Vice, and who the fuck wants to think of Glen Fucking Frey?

Who was responsible for killing each and every member of the Eagles (except for Joe Walsh) before they recorded again? Who fell down on the job? How did we, as a nation, let THAT one get by us?

Posted by: Pale Rider on November 8, 2007 at 3:37 PM | PERMALINK

Well, in Tenet v. Doe, the government used the state secrets doctrine to deny (or really, refuse to admit) to any relationship with a pair of former Soviet spys. The law suit was dismissed because the very existence of a relationship between the CIA and the Does was secret, so even though the Does wanted to sue to enforce this, their suit was thrown out of court.

Different, but it just goes to show that the state secrets doctrine can be pretty broad. My understanding is that the claim of the Bush administration is that any knowledge of how the US treats its detainees is by definition classified because "then the terrorists would know what we do and prepare for it" or some such. It's meretricious bullshit of course. This stufff is classified because they want to keep it secret for political reasons. But it's easier to say that when a US attorney isn't fervently telling you how critical it is that this be hidden for public security reasons.

Posted by: IMU on November 8, 2007 at 3:41 PM | PERMALINK

Classifying info as secret is all and always about preventing the citizens from knowing what their gvmt is doing.

The people who we are screwing over already know exactly what our gvmt is doing to them.

Posted by: Disputo on November 8, 2007 at 3:46 PM | PERMALINK

So, according to Justice Breyer, it seems we're already governed by Zimbabwean law.

It just took your boy Bush and his bedwetting chickenhawk authoritarian crew to bring us the wonders of Chinese and burmese law.

Posted by: Gregory on November 8, 2007 at 3:50 PM | PERMALINK

Pale Rider: Who was responsible for killing each and every member of the Eagles (except for Joe Walsh) before they recorded again?

Their new CD is only available at Wal-Mart, so we might be safe.

I'm sure you've heard Mojo Nixon's "Don Henley Must Die" but if by some chance you haven't, it's worth looking for.

Posted by: thersites on November 8, 2007 at 3:52 PM | PERMALINK

Kevin, your BDS is blinding you to the real world impact of your argument. It sounds like you won't be happy until we're all Lynn Stewart for a day, bringing the blackjack down on any phone company or other person or institution that tries to assist our government.

Posted by: minion on November 8, 2007 at 3:58 PM | PERMALINK

I'm sure you've heard Mojo Nixon's "Don Henley Must Die" but if by some chance you haven't, it's worth looking for.

I own several versions of that song, but not the version where Henley got on stage and sang it with Mojo.

Posted by: Pale Rider on November 8, 2007 at 3:59 PM | PERMALINK

Who was responsible for killing each and every member of the Eagles

I thought it was Linda Ronstadt.

Posted by: Brojo on November 8, 2007 at 4:05 PM | PERMALINK

So, according to Justice Breyer, it seems we're already governed by Zimbabwean law.

Breyer also said "Obviously this foreign authority does not bind us. After all, we are interpreting a “Constitution for the United States of America.” and "this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances"

Of course that didn't prevent the rightards from howling and frothing - nor deter ex-lib from dishonestly rehashing it here.
It never does.

Posted by: ckelly on November 8, 2007 at 4:18 PM | PERMALINK
Liberal Supreme Court Justice Stephen Breyer actually cited Zimbabwean law... ex-lax at 3:36 PM
This is a big talking point among the loony right. Breyer likes to examine examine many opinions

...Breyer maintained that the controversy surrounding the topic is magnified because of the nature of the cases in which foreign law has played a role. In 1999 he cited a Zimbabwean judge in a death penalty decision.
“Is it cruel and unusual punishment to hold a person on death row for more than 20 years before executing them?” Breyer said, recalling the case. “Where do I look? Your own moral views are not the answer, [so] you look to other places. I found opinions in England, Canada. I cited things both ways. I don’t think that’s controlling. On this kind of an issue you really have a human question. The Americans are humans and so is everyone else.”...

Of course, one should compare to the nonsense that ends up in opinions written by Clarence Thomas of Antonin Scalia.

Posted by: Mike on November 8, 2007 at 4:24 PM | PERMALINK

Mike and ckelly, I watched that debate between Scalia and Breyer. They were both wonderful - collegial, geniaol, intelligent, and knowledgeable. They were even funny at times.

In my opinion, Scalias trounced Breyer. The debate made it clear that Breyer uses foreign precedents as an excuse to reach the result he wants to reach.

E.g., Roe v. Wade sets a standard for abortion that's more liberal than just about any other country. If Breyer consistently followed foreign precedent, he'd vote to cut back on the right to abortion, but he never will.

Posted by: ex-liberal on November 8, 2007 at 4:38 PM | PERMALINK

Brojo: I thought it was Linda Ronstadt.

No, she only murders songs.

Posted by: thersites on November 8, 2007 at 4:42 PM | PERMALINK

Shorter minion: Criminal conduct in the assistance of an authoritarian government is no vice!

Bonus wingnut points for the BDS reference, of course.

The debate made it clear that Breyer uses foreign precedents as an excuse to reach the result he wants to reach.

Whereas Scalia just fabricates his excuses, as in Bush v Gore.

Posted by: Gregory on November 8, 2007 at 4:44 PM | PERMALINK

ex-lib: If Breyer consistently followed foreign precedent,

That's just the point. He doesn't. So what are you and the other wingers carrying on about?

Posted by: thersites on November 8, 2007 at 4:47 PM | PERMALINK

Honestly, why do you guys try to engage ex-lib with reason? He or she - it? -- is just here to yank people's chains. You shouldn't give it the satisfaction.

Posted by: Glenn on November 8, 2007 at 4:53 PM | PERMALINK

thersites: what are you and the other wingers carrying on about?

What we're carrying on about is the SC abusing its power to rule in favor of policy that they they prefer. It's also called Legislating from the Bench.

Roe v. Wade is a great example. There's nothing in the Constitution about abortion, one way or the other. There's nothing about when human life begins. The SC made no real effort link their decision to the Constitution. They legalized abortion because they thought it was good policy, not because the Constitution demanded it.

Arguably Bush v. Gore may be another case. The liberals voted for Gore and the conservatives voted for Bush. It's possible that all 9 of them were swayed by who they wanted to win, rather than purely legal arguments.

Posted by: ex-liberal on November 8, 2007 at 5:00 PM | PERMALINK

Arguably Bush v. Gore may be another case. The liberals voted for Gore and the conservatives voted for Bush.

Yeah, the liberals voted for a state's right to conduct a recount and the conservatives legislated from the bench. You're right. Liberals really are evil.

And Glenn: Yeah I know. But after two days of the followers of He Who Shall Not Be Named Lest The Googles Find Us, ex-lib is kind of relaxing.

Posted by: thersites on November 8, 2007 at 5:09 PM | PERMALINK

Dumbass ex-fuck, he didn't cite it as *precedent*.

You really are too dumb to be breathing on your own.

Posted by: Disputo on November 8, 2007 at 5:19 PM | PERMALINK

Did anyone see the AT&T whistleblower on Countdown night before last? He was an electrical technician who understood from his experience and the info he needed to do the wiring exactly what was going into AT&T's 'secret room.' He said all internet and phone communications, both domestic and foreign, were routed through that room. He was supposed to testify before the Senate Judiciary Committee yesterday. I don't think it was a closed hearing yet C-span didn't televise it nor I have seen anything about it in the MSM. Somebody's putting a very big lid on top of a very big garbage can. How do they keep getting away with it???

Posted by: nepeta on November 8, 2007 at 5:42 PM | PERMALINK

A Zimbabwean friend once asked me, incredulously, if it were true as she had heard on CNN that the US Congress had introduced legislation to impeach judges nerely for citing to cases from non-US courts, and if so, was it also true that this was at least in part b/c Justice Breyer had once cited a Zimbabwean case?

Answer: Yes, and yes.

The friend who asked me the question was working to bring the rule of law to Zimbabwe. Every time a US judge cites to (obviously non-bindinig) cases from other jurisdictions, s/he is showing that words matter, that thinking matters, and that judging matters -- that a judge in one country makes the effort to understand and reflect on the opinions of judges in another.
Yet somehow this issue has become a flashpoint for the right. Since when did the US become so weak that our judges can't read other countries' decisions without becoming somehow overpowered by them?

Posted by: Genevieve on November 8, 2007 at 6:21 PM | PERMALINK

Trust us, we're from the government. We're here to help you. You do not need to know what we are doing. You do not need to know what other people say we did to them. Step away from the tinfoil hat....sorry, BDS flaring up again.

Posted by: out on bond on November 8, 2007 at 6:55 PM | PERMALINK
Actually, I can think of plenty of doctrines in law that permit this.

Quod Bush vult, lex fit.

Posted by: cmdicely on November 8, 2007 at 7:04 PM | PERMALINK
Liberal Supreme Court Justice Stephen Breyer actually cited Zimbabwean law in deciding a case focusing on allowable delays of execution (Knight v. Florida). So, according to Justice Breyer, it seems we're already governed by Zimbabwean law.

Citing foreign cases, law treatises, non-legal reference books, or any other source of persuasive authority in a decision does not suggest that that authority is binding law on the Court rendering the decision.

Posted by: cmdicely on November 8, 2007 at 7:08 PM | PERMALINK

There's nothing in the Constitution about abortion, one way or the other.

There's nothing in the Constitution about the Air Force, one way or the other, either. And yet we seem to have one....

Posted by: Stefan on November 8, 2007 at 7:18 PM | PERMALINK

You really are too dumb to be breathing on your own.

I'm inclined to concur with Disputo's diagnosis.

Perhaps you should enlist the aid of a respirator just to be on the safe side.

Or not.

It sounds like you won't be happy until we're all Lynn Stewart for a day, bringing the blackjack down on any phone company or other person or institution that tries to assist our government.

No need to be Lynn Stewart, just a need to bring the hammer down on any phone company or other person or institution that tries to assist our government in committing crimes against the American people, the Constitution, or the Bill of Rights.

It's difficult to predict if such an outcome would make any of us "happy" in the complete sense, but I surmise that seeing justice fulfilled by the exercise of rational judgment in accordance with virtue would definitely bring with it a certain amount of satisfaction contributing to our collective eudaimonia.

Posted by: trex on November 8, 2007 at 7:20 PM | PERMALINK

That prick was in San Antonio today and visited some rich asshole about a mile up the road from me. Someone, either the secret service or the local cops, took down my for sale sign, and I don't see any others as I look up the street. No notice or anything, they just walked onto private property, did whatever the hell they wanted, and moved on.

God forbid he should see evidence of the real estate bust. Or maybe they were protecting the eyes of his worshipful press corpse.

Posted by: jussumbody on November 8, 2007 at 7:28 PM | PERMALINK

What if telephone technicians took the law into their own hands and decided to listen in on Republicans telephone calls without a warrant?

I guess that would be OK too.

Posted by: Diane on November 8, 2007 at 8:51 PM | PERMALINK

He was supposed to testify before the Senate Judiciary Committee yesterday. I don't think it was a closed hearing yet C-span didn't televise it nor I have seen anything about it in the MSM.

That guy was interviewed on NPR either today or yesterday.

Posted by: Disputo on November 8, 2007 at 9:27 PM | PERMALINK

I lived next to a phone installer who used to brag that he could listen in any time he wanted.

I didn’t believe him until he showed me how easy it is.

He wasn’t bragging.

Posted by: Brian on November 8, 2007 at 9:46 PM | PERMALINK

Here's a link to an ABC story on the AT&T whistleblower. He testified to the Senate Judiciary Comm. today, not yesterday, so maybe there will be more tomorrow.

"Klein was on Capitol Hill Wednesday attempting to convince lawmakers not to give a blanket, retroactive immunity to telecom companies for their secret cooperation with the government."

Big Brother Spying on Americans?

Posted by: nepeta on November 8, 2007 at 9:46 PM | PERMALINK

How about Nazi-Law?

Posted by: John Crandell on November 9, 2007 at 1:42 AM | PERMALINK

Techies here, don't miss this on the AT&T spying case. Klein's evidence is discussed:

Whistleblower's Evidence, Wired

Posted by: nepeta on November 9, 2007 at 2:11 AM | PERMALINK

Interesting thing is that although some Zimbabwean law is just as harsh as American law (Internal Security is every bit as bad as Patriot), senior Zimbabwean judges tend to be a lot more willing to challenge their executive than American judges.

That's why Mugabe had to sack his Chief Justice.

Not a lot gets out from Zimbabwean prisons, but that's more because the press is all government-owned than because the law forbids it.

Posted by: MFB on November 9, 2007 at 3:14 AM | PERMALINK

One of the weirder corners of the PATRIOT act is that the gov't could look at your library records and the librarian could not divulge this information.

Lead to some cute work-arounds, like a sign that said, "The gov't hasn't requested that we show them you records. Watch this sign" The sign disappeared later, but probably someone just got tired of it.

Posted by: M. Peachbush on November 9, 2007 at 12:04 PM | PERMALINK

Personally, I felt the redaction respresents the court's implicit approval of the CIA's use of threats against the family as a legitimate interrogation method. Not in this specific case, mind you. In this specific case, the CIA tried to introduce a coerced confession in an American court. That is not permissible. But it doesn't necessarily follow that the underlying act - the threats - were illegal in the context of intelligence gathering.

Here's the deal: it's not clear that rendition is illegal under US law. You can argue it's illegal, certainly. But it's been going on openly for years without a legal challenge, so plainly it is NOT illegal as a practical matter. Nor is it clear that issuing threats against this guy's family was illegal. Should it be illegal? Yes. Would a confession obtained through such a coercive method be admissible in an American court? No (that's what this case was all about). But was the threat itself illegal? Not at this particular point in history.

I know Lederman says the redaction should not have occurred even if the interrogation method was legal. And he's right. But his assumption that the CIA's interrogation technique was "illegal" in this case is just that...an assumption. I agree that the state secrets argument evaporates if the government is attempting to cover up its own illegal conduct. But that is not what we have here.

Posted by: owenz on November 9, 2007 at 12:05 PM | PERMALINK
Here's the deal: it's not clear that rendition is illegal under US law.

"Rendition" is just a term of art for giving someone over to the custody of another country, it is, as such, rather clearly not illegal under US law.

It is often used as a euphemism (to avoid announcing the illegality) for handing over people to be tortured by another country for the purpose of the US administrationing getting the "benefits" of the torture with a veneer of deniability for the torture itself; in this case, it is clearly illegal under U.S. law. The act is torture, as defined at 18 U.S.C. § 2340, which is made criminal specifically when committed outside of the U.S. (18 U.S.C. § 2340A(a)), and conspiracy to commit torture outside of the US is a crime (18 U.S.C. § 2340A(c)). Rendition for torture isn't something that isn't clearly illegal, its something that makes proving illegality more challenging, which is its purpose.

Posted by: cmdicely on November 9, 2007 at 4:40 PM | PERMALINK
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