Tag: SCOTUS

State Secrets Case Proceeds

A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees.  (H/T SCOTUSBlog)

The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured.  The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.

This presents a split in federal circuit rulings on the State Secrets Privilege.  The Fourth Circuit held that the Privilege could bar a civil suit entirely.  This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds.  “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”

As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability.  All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.

Tuesday Podcast: ‘Anthony Kennedy’s Modest Libertarianism’

Author Helen J. Knowles calls Supreme Court Justice Anthony Kennedy a “modest libertarian” in her new book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, which analyzes Kennedy’s jurisprudence.

In Tuesday’s Cato Daily Podcast, Knowles explains why she chose to recognize Justice Kennedy as a “modest libertarian”:

If you line all the justices up and say… did they vote for the individual, or for the government? Kennedy is overwhelmingly in favor of the individual rather than the government, far more than any of his colleagues.

An Eminent Domain Injustice

“My name is Susette Kelo, and the government stole my home.”

That was how former New London, Connecticut resident Susette Kelo, who lost her home in one of the most troubling legal battles against eminent domain abuse, began her talk at the Cato Institute in January.

The court ruled that Susette Kelo’s little pink house in New London, and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect that the new use for her property could generate more taxes or jobs.

At this time, the property is still empty.

In this new mini-documentary produced by Austin Bragg and Caleb Brown, those who fought on Kelo’s behalf tell her story.

For an in depth look at Kelo’s case, read Little Pink House: A True Story of Defiance and Courage by Jeff Benedict.

For more videos like this one, subscribe to Cato’s YouTube channel.

Monday Podcast: ‘Challenging Domestic Military Detentions’

410px-ali_saleh_kahlah_al_marriAli Saleh Kahlah al-Marri, the exchange student from Qatar who was detained by the FBI with alleged ties to al-Qaeda, sat for years in a military brig in South Carolina as the only domestically detained enemy combatant.

The Bush Administration used al-Marri to test a legal theory aimed at keeping suspected terrorists in military prisons indefinitely.

President Obama has reversed that ruling, and has moved al-Marri into civilian courts. The Supreme Court is no longer hearing al-Marri’s appeal.

In Monday’s Cato Daily Podcast, Legal Policy Analyst David Rittgers says that there’s nothing that will stop future administrations from again reversing the policy.

This is creating this legal cul-de-sac where we can have military detention domestically…and the reason that they picked Al-Marri is, just as you would pick a sympathetic plaintiff to sue to overturn a law, if you want to keep a law…you would look for an unsympathetic defendant, and Al-Marri is as unsympathetic as you can get.

…He is the test case to keep this policy open.

The Cato Institute co-authored an amicus brief (PDF) at the Supreme Court supporting al-Marri’s challenge to the military detention.