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State Secrets and Military Procurement

[ 0 ] May 5, 2009 |

The State Secrets Privilege has been receiving an enormous amount of attention lately, mainly in connection with the Obama administration’s invocation of the privilege in the Jeppesen case. This invocation, which recalled similar invocations on the part of the Bush administration, incurred a substantial amount of criticism from civil libertarians and critics of Bush administration detention policies. Obama has also invoked State Secrets Privilege to protect the warrantless wiretap program from scrutiny. While the administration has made positive noises about narrowing its use of the privilege, actions have yet to match rhetoric.

As it happens, Professor Davida Isaacs and myself have a paper coming out in the Summer 2009 Berkeley Technology Law Journal on the use of the State Secrets Privilege in litigation on military procurement. Long story short, a small firm named Crater developed a coupler that could conceivably be used to help tap undersea cables. Lucent Technologies developed an interest in the coupler and played around with it for a bit until it decided that the device was, indeed, appropriate for a contract with the Navy. Lucent then, essentially, told Crater to go pound sand. Litigation resulted, and in discovery Crater attempted to gain access to documentation regarding the use of the device. The Navy claimed State Secrets Privilege in order to avoid disclosing such documentation. This eviscerated Crater’s case. The basic story is available in a Wired article by Kevin Poulsen from 2005. We go into the case in some additional depth, suggest that there are some troubling constitutional issues regarding the assertion of the privilege in such cases, and argue that widespread use of the privilege could have a significant negative effect on military innovation and procurement. On the former point, where the information involved constitutes “trade secrets”, the effective quashing of litigation through invocation of the privilege arguably amounts to an unconstitutional taking. On the latter, blunt use of State Secrets Privilege endangers the patent and intellectual property rights of companies interested in doing business with the military, and in particular of small companies that can’t depend for either on their connections with the Pentagon or on an expectation of repeat business for protection. This is particularly problematic given the stated interest of the Pentagon in pursuing non-traditional defense contractors for innovative technologies.

The upshot is that the negative effects to using State Secrets Privilege as a “blunt instrument” go beyond the obvious dangers to civil liberties. A lack of transparency, and the consequent arbitrary and capricious use of power, endangers many aspects of the government’s relationship with the public, including its interactions with contractors. Legislation intended to rein in government’s use of the privilege (through encouragement of independent judicial consideration of government claims) has been proposed, but we argue that, particularly in the arena of military innovation, this legislation does not go far enough.

The article is available through SSRN. For those without SSRN privileges, try this link.


Because Seriously, Kentucky Needs More Political Drama

[ 0 ] May 5, 2009 |

The 2010 Republican Senate primary may end up being the most entertaining race in the country. Last week, Republicans supporting Secretary of State Trey Grayson leaked word that Jim Bunning was planning to retire, rather than contest the Republican primary. It appears, however, that no one actually informed Bunning that he was retiring; the “leak” was intended to push him out in order to make way for the much more popular Grayson. Grayson isn’t a lock in 2010, but he has a much, much better shot than Bunning, who has failed to raise any money or excite any enthusiasm among the Republican faithful. Bunning has even threatened to resign immediately, opening the door for Governor Steve Beshear to appoint a Democrat to fill out his term.

Now, to add absurdity and general hilarity to the situation, it appears that Rand Paul (son of Ron Paul) may be throwing his hat into the ring:

Republican Rand Paul, son of former presidential candidate Ron Paul, said Friday he is poised to enter the race for U.S. Sen. Jim Bunning’s seat if the 77-year-old sports icon decides to retire.

“I’ve been traveling the state and giving speeches as if there is going to be a race,” he told The Associated Press. “Every bone in my body says there is going to be a race.”

There’s only one thing that could make this better: Reality TV! Anyone know a producer?

…it’s hard not to like Bunning when he lashes out at McConnell.

Rich White Men Just Can’t Catch A Break

[ 0 ] May 5, 2009 |

What Ezra, Digby, Eisgruber, and Atrios said:

…the explicit conversation and subtext suggesting underlying assumptions about race and gender in our world shows just how stupid and/or racist and misogynistic the Villagers are. The idea that for any job, especially something like Supreme Court judge, there’s one “most qualified” person who can be determined is just idiotic. When the white guy is chosen, all of the people who bemoan the evils affirmative actions, nod and clap at how “qualified” he is, despite the fact that generally white men are the greatest beneficiaries of various forms of affirmative action in this society, from inherited wealth and privilege, to the good old boys’ club, and to, of course, fluffing by our media.

A couple of additional points:

  • As has been noted before, many of the same conservatives who lament the possibility that diversity plays any role in hiring, hence foiling our perfect meritocracy, also revere Clarence Thomas, who almost certainly would not have been nominated to the Court had he been a generic white guy. And the thing is, Thomas does, in fact, prove the value of diversity, and that once someone has the ability comparisons of additional formal credentials don’t mean much. Leaving ideological congeniality out of it, does anybody think that Thomas hasn’t been a more intellectually impressive justice than the more formally “qualified” Anthony Kennedy? More controversially, I also agree that in many ways he’s made a more impressive contribution than the much more lauded Antonin Scalia.
  • It’s also instructive that to the Stuart Taylors of the world having a mainstream liberal position on the constitutionality of affirmative action is enough to mark you as a dangerous radical. (Apparently, written tests are such a foolproof method of determining which firemen are worthy or promotion that it’s beyond the pale for a city to consider the effects of having a lily-white cadre of top-rank firefighters at all.) And note as well that the concern with legal formalism and “judicial activism” with which Taylor usually conceals his preference for conservative outcomes and conservative judges goes straight out the window. The idea that the Constitution is “color-blind” is supported by literally no Supreme Court precedent and can be supported by “original meaning” only if principles are defined at a sufficiently high level of abstraction that William Brennan can count as an “originalist.” I, myself, don’t think that there’s anything inherently impermissible about using an open-ended constitutional provision to reach a politically mainstream, ideologically congenial result, but 1)Taylor often pretends to, and 2)it’s not clear why Scalia and Thomas can do this but Sotomayor can’t.

…see also Serwer, Hutchinson, and Greenwald.

The price of moral panic

[ 0 ] May 5, 2009 |

Certain candid obesity researchers will tell you in private, especially if you get a couple of G&Ts into them, that yeah, there really isn’t any increased mortality risk associated with BMI at all until you get into the mid-30s, but still it would be good for people to avoid getting fat because, um, well you know they could get really fat if they “let themselves go,” and what about “quality of life,” and well anyway people want to be thin, so what harm does it do to exaggerate a little (sic)?

Actually, a lot.

From Colony to Superpower XIX: First Rays of the New Rising Sun?

[ 0 ] May 5, 2009 |

This is the 19th installment of our 20 part series on George Herring’s From Colony to Superpower. Erik had the honors this week; check out his post first.

Reagan’s approach to Latin America was a touch more brutal than his immediate predecessors, but the disregard for human rights is only really notable for its contradiction with administration rhetoric towards the Soviet Union. The other difference was Congress; for the first time in a very long while, there was serious objection within Congress to administration Latin American policy. This resulted in a number of unsavory projects to limit the amount of information Congress possessed on US foreign policy, the most notable of which was the Iran-Contra affair. As the Cold War eased, so did US policy, opening some space for opposition movements in Latin America. When these movements no longer threatened to “tip the balance” towards the Soviet Union, they could tolerated and even supported to some extent.

Reagan’s Middle East policy was almost singularly inept. Neoconservatives don’t usually emphasize Beirut in their litany-of-appeasement-inevitably-leading-up-to-9/11 story, but the course of US intervention The Reagan administration clumsily handled the Iran-Iraq War, mostly favoring Iraq but leaning towards Iran at critical times. Re-reading the story of the Iran-Contra Affair remains shocking; it is remarkable that Reagan avoided impeachment. Herring’s discussion sheds some light on the unwillingness of the 1980s crop of neoconservatives to consider rapproachment with Iran. On both the US and the Israeli side, it was believed that the arms shipments to Iran would empower moderates and cause magical things to happen in Lebanon. The Iranians however, were simply playing the United States in order to get the weapons. It’s not terribly surprising that the advocates of the deal in the administration now view any effort to empower Iranian moderates as hopeless; if anti-tank weapons didn’t work, what will? However, it’s also remarkable the degree which Reagan and Bush were willing to put the screws to Israel. Both engaged in coercive foreign policy (condemnations, suspensions of aid) which are virtually unimaginable today.

Reagan entered office as a Taiwan hawk, and some in the administration pushed for a hard line with the PRC. However, as in Central America the desire to compete with the Soviet Union quickly eclipsed any interest in human rights. Reagan desired China’s cooperation against the Soviet Union more than his longstanding relationship with Taiwan, and thus largely ignored Taiwanese concerns. Happily, this corresponded with an important period in Taiwan’s long term democratization.

Herring makes clear that while Reagan deserves some credit for the end of the Cold War, the bulk of responsibility lies with Mikhail Gorbachev. The Reagan arms buildup did help convince some within the USSR that it could not compete military with the United States, and the arms control openings after 1984 helped convince some that the United States wasn’t a threat. But there was no coordinated strategy; the same people who strongly supported the first bitterly opposed the second. And of course there were also structural factors; the rapid decline of the price of oil in the 1980s helped to undermine the Soviet economy. In any case, the pressure produced by the United States wasn’t determinative; different Soviet leaders could have made much different choices, ranging from preventive war to hunkered isolation to Chinese style perestroika-without-the-glastnost. Reagan’s central achievement was recognizing the opening that Gorbachev offered.

More later on the first Bush administration…

I mean "yuck" in the most appreciative sense of the word

[ 0 ] May 4, 2009 |

Although the 2009 swine flu appears to have proven itself the Fred Thompson of pandemic disease, this is nevertheless quite cool.


Clarence Thomas Hearing

[ 0 ] May 4, 2009 |

Given Joe Biden’s promotion, Al Franken’s new job, and an upcoming Supreme Court Senate confirmation hearing, it would be almost criminal for NBC not to put this video up on the website…

The Immaculate Election?

[ 0 ] May 4, 2009 |

Well, it’s hard to imagine Franco Harris being worse than Specter or Sestak. The latter’s sole usefulness seems to be that his primary challenge may compel Snarlin’ Arlen to be slightly less of a wanker…

More Abstinence Only Clownery

[ 0 ] May 4, 2009 |

Joe has the tape; this guy is even more of a buffoon than the last one, and I don’t mean that in a good way.

While I suspect that complaining about abstinence only education will never result in the actual zeroing of federal funding (it’s a cheap way to pretend to appease social conservatives, which makes Broder and Brooks happy), challenging the claims made in the videos linked above nevertheless has positive effect. By rendering the claims made by abstinence only educators subject to discussion, and by demonstrating the utter idiocy of abstinence education methods, critics give tools to parents who could oppose inviting such charlatans to their own local schools.

Gunning For Sotomayor

[ 1 ] May 4, 2009 |

I am inclined to agree with Christy that Sonia Sotomayor is the most likely Obama nominee, given her compelling personal story and what seems to a moderate liberal record. Stuart Taylor, however, asserts that:

…the Republicans could bleed him some politically if he made an exceptionally controversial pick such as Sonia Sotomayor, a federal appeals court judge based in New York.

Excepitonally controversial? A long-serving (initially Republican-appointed) federal judge who rose from projects in the Bronx to Yale Law? Whose record is, as far as I can tell, if anything more moderate than other frontrunners like Wood and Kagan? So what’s the evidence? Well:

There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court. (Some conservatives claim she masquerades as a moderate because she is running for the Court.)

If you read that last sentence carefully, it seems to be a nicely unfalsifiable claim that Sotomayor’s record, while moderates, hides some sort of secret liberal agenda underneath the robes. Oh. And, horrors, she may be somewhat more liberal than other members on a court where the most liberal pole is “Rockefeller Republican.” And this evidence comes from people with an obvious interest in undermining a nominee who looks almost impossible to stop, which certainly wouldn’t lead Taylor to question their motives, heavens no. At any rate, I’m sure these assertions are about as convincing as his claims that Sam Alito was a moderate who would “disappoint conservatives.”

After this silliness, we get to the heart of the issue — Taylor doesn’t like Sotomayor because she disagrees with Stuart Taylor about affirmative action. This is, of course, a field of “acceptable” activism in which conservatives are free to abandon long-standing theoretical commitments to impose conservative policy outcomes on public officials.

Perhaps her biggest problem is her vote in the potentially huge Ricci reverse-discrimination case in New Haven that was heard at the Supreme Court last week. It was an extremely pro-reverse discrimination decision and appeared sneakily (if unsuccessfully) designed to escape notice. And the Supremes seem very likely to reverse it (probably 5-4, with Kennedy joining the conservative bloc), possibly with a good whack at the lower court decision.

Ah, yes, so the shocking news is that Sotomayor issues a plausible, mainstream liberal vote in an affirmative action case, one plausible enough to get 4 votes at the Supreme Court. But…with a good whack! I doubt it will be as good a wack as the Casey plurality gave then-Judge Alito’s claim that states could force women to notify their husbands before seeking an abortion, but funny, I don’t recall Taylor talking about what a political disaster that would be for Bush.

So, anyway, there’s nothing here to suggest that Sotomayor will actually be any more controversial than any other nominee. But Taylor’s contempt has to be considered a major point in her favor. And this is without mentioning her most compelling credential…

The Supreme Court and diversity

[ 0 ] May 3, 2009 |

One of the many interesting things about Obama is that he took such an unusual career path once he left Harvard. I don’t know how many other presidents of the Harvard Law Review haven’t either clerked, or joined or an elite firm, or become tenure-track law professors , or taken a big deal job in the federal legal bureacracy, but my guess would be zero.

Anyway, we’ll see if that maverick streak is on display when he picks Souter’s replacement.

Red State: We Need Bigots To Carry Our Banner Against "Judicial Activism"

[ 0 ] May 3, 2009 |

Digby beat me to it, but it was amusing to Red State touting Jeff Sessions as the ranking minority member on the judiciary committee. Digby got most of the good stuff, but here’s another tidbit from the Sarah Wildman’s article:

It got worse. Another damaging witness–a black former assistant U.S. Attorney in Alabama named Thomas Figures–testified that, during a 1981 murder investigation involving the Ku Klux Klan, Sessions was heard by several colleagues commenting that he “used to think they [the Klan] were OK” until he found out some of them were “pot smokers.” Sessions claimed the comment was clearly said in jest. Figures didn’t see it that way. Sessions, he said, had called him “boy” and, after overhearing him chastise a secretary, warned him to “be careful what you say to white folks.” Figures echoed Hebert’s claims, saying he too had heard Sessions call various civil rights organizations, including the National Council of Churches and the Southern Christian Leadership Conference, “un-American.” Sessions denied the accusations but again admitted to frequently joking in an off-color sort of way. In his defense, he said he was not a racist, pointing out that his children went to integrated schools and that he had shared a hotel room with a black attorney several times.

Hye-larious. Well, giving Sessions the job would at least provide a useful reminder that the roots of contemporary reactionary critique of “judicial activism” grew out of judicial opinions that opposed apartheid and white supremacy. Oh, wait, I’m sorry — all those “Impeach Earl Warren” signs sprung up because the Court would issue a popular ruling holding bans on abortion unconstitutional years later under a different Chief Justice. My mistake!