President Obama and State Secrets: It's Different, When You're in Charge

I was impressed, after reading that President Obama had authorized the raid that freed the Maersk Alabama's Captain. Barack Obama may be more solidly attached to the real world than might have been expected.

I'm not as surprised as I might be, though. Last August I wrote about Obama's failure to live down to the Congressional Black Caucus' standards. I could be wrong about this, but I think that many members of the CBC have never quite gotten over the passing of the sixties.

War Isn't Nice: Neither is the Taliban - Deal With It

Like it or not, organizations like Al Qaeda and the Taliban are

1. Not nice
2. Determined to make their version of Islam the only version
3. Not at all inhibited when it comes to killing people who get in their way

Since America, Western civilization in general, and - judging from the number of Muslims killed by these lions of Islam - quite a bit of the Islamic world don't see eye-to-eye with Al Qaeda and the Taliban, there is a conflict going on.

It may not, officially, be the "War on Terror" any more, but the fact is that Al Qaeda quite happily killed around 3,000 people in New York City a few years ago, and hit the Pentagon. The physical damage can be repaired: the people stay dead.

I realize that "war" isn't a nice word, and that it would be nice if there wasn't any war. But that doesn't change the unpleasant reality that everyone on Earth is living with right now: that the freedom to wear trousers (for men), and drive cars (for women); and freedom to decide how, or whether, to worship, is at stake.

Calling it a misunderstanding, or some other euphemistic term, might make a few people feel better - but it doesn't change the deadly nature of what's actually going on.

President Barack Obama: Keeping State Secrets?! The Horror!!

What seems to be brewing today is a refusal by the White House to say whether or not President Barack Obama supports the State Secrets Protection Act.

As The Atlantic put it, "...As a candidate, Obama supported the principles espoused in a similar piece of legislation, but he did not sign on to the bill as a cosponsor...." (The Atlantic)

The State Secrets Protection Act (S 2533) is "A bill to enact a safe, fair, and responsible state secrets privilege Act." (GovTrak.us) Who could possibly be against that?

'The Devil's in the details.' Good or bad, what matters in legislation is not its lofty goals and aspirations, but what it actually says. In the case of S2533, even the summary starts looking dicey.

"State Secrets Protection Act - Amends the federal judicial code to: (1) require a federal court to determine which filings, motions, and affidavits (or portions) submitted under this Act shall be submitted ex parte; (2) allow a federal court to order a party to provide a redacted, unclassified, or summary substitute of a filing, motion, or affidavit to other parties; and (3) require a federal court to make decisions under this Act, taking into consideration the interests of justice and national security...." (GovTrak.us S 2355 summary)

To those who truly believe in the ineffable perfection of federal judges to make wise, true - and reasonably prompt - decisions, S2355 is probably quite acceptable.

I grew up in the sixties, and although I acknowledge that America needs federal judges: I would very much rather not trust the lot of them to make sensible decisions about whether or not all the umbras of emanations were aligned correctly to permit eavesdropping on terrorists - probable or actual.

The last I checked, 221 people who had been tried and convicted of rape in American courts have been freed because of DNA testimony. I don't know how many were executed.

Then there's that wonderful bit: "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance...." I know: "Penumbra" does have a legal definition: one that's as shadowy as the name implies. "In an 1873 article on the theory of torts, Justice Holmes used the term penumbra to describe the 'gray area where logic and principle falter.'..." A Penumbra these days seems to be "The rights guaranteed by implication in a constitution or the implied powers of a rule." (TheFreeDictionary)

There may be times when something that vague is needed in law - but it can also, I think, result in very groovy judicial legislation.

From the point of view of either bleeding heart liberal or a heartless conservative: American courts don't have a particularly good track record.

Perhaps more to the point, the courts aren't particularly noted for their speed. I wouldn't feel particularly safe, learning several weeks after the next 9/11 happens, that some federal court judge finally decided to approve listening in on the terrorists' messages.

Checks and Balances are a Good Idea

I'll admit that my apprehension over S2355 stems in no small part from the farcical antics of judges - many of them at the federal level - during my lifetime.

Sober, rational decisions have been made. On the other hand, just a few years ago a judge in Becker County, Minnesota, set a laughably low bail for a convicted sex offender. Thanks to Judge Thomas Schroeder's kind attention, Joseph Edward Duncan III was free to go to Idaho, where he wound up facing three murder charges. The last I heard, he's been sentenced to death. (About.com Crime/Punishment) (My views on capital punishment: "Capital Punishment: Killing Those Who Deserve to Die " A Catholic Citizen in America (October 2, 2008).)

I'm willing to trust American security to responsible grown-ups. That lot: I'm not so sure.

More-or-less related posts:

• "No More "War on Terror" - Officially?"
  (March 30, 2009)
• "Obama Backs Bush Policy, Guantanamo up to Geneva Convention Standards: It's Different, When You're in Charge"
  (February 21, 2009)
• "Barack Obama: Upstart Young Whippersnapper?"
  (August 26, 2008)

News and views:

• "Obama's Authorization of Force Against Pirates Is a Defining Moment"
  U.S. News and World Report (April 13, 2009)
• "Obama's Coming Clash With Congress On 'State Secrets' "
  The Atlantic (April 13, 2009)
• "Obama Administration Maintains Bush Legal Argument for Terrorist Surveillance Secrecy"
  FOXNews (April 13, 2009)