that the Judicial can legally review and decree unlawful? Is this, perhaps, a long-term game whereby they not only end up with Judicial review of Bus's State Secrets belief but also the power of the Presidency on a broader scale?

My only thread of hope is this, as Obama has proven to be willing to fight the Big Fight (i.e. his Healthcare policy seems to be aiming for universiality) and his language has been strongly Democratic in general. (Much stronger than I had feared.)

What is the chance that the Obama Admin is pursuing this so aggressively just so

that the Judicial can legally review and decree unlawful?

I addressed this in the post on the weekend. They've already lost their argument. If their Secret Good Motive is to lose on purpose in order to establishment good judicial precedent -- which means they're lying about what they're really doing and hiding from us their "true motive" -- then why are they still appealing and even suggesting that they can defy the court order?

They already lost. The "good precedent" is established. If that were their Secret goal, they would stop now and comply with the order. Yet they're not doing that. They're doing the opposite -- they're desperately trying to uproot the good precedent.

Isn't that pretty compelling evidence that this isn't really their secret plan? And if they did have a secret plan for doing this that is different than what that they are publicly stating are their motives, wouldn't that independently bother you? Do you want your government lying about its motives for the actions it takes?

I wonder if the theory being asserted here is really one of constitutional limits, as was the Yoo line of thinking. I admit to not having had time to do more than skim the brief, so I defer to your closer examination, GG. But it seems that classified information is currently regulated solely by Executive Order, and while the theory may be that this EO is a valid exercise of the President's Article II powers, I don't know that it necessarily entails an assertion that Congress could not limit that power by legislation. They just haven't done so. Asserting that the judiciary is not in a power to adopt such limits doesn't necessarily imply Congress couldn't.

In other words, maybe what we really need is a law to govern classified information and the state-secrets privilege. Actually, in my mind there's no "maybe" about it.

Glenn -- What is the chance that the Obama Admin is pursuing this so aggressively just so

that the Judicial can legally review and decree unlawful? Is this, perhaps, a long-term game whereby they not only end up with Judicial review of Bus's State Secrets belief but also the power of the Presidency on a broader scale?

This has been bothering me enough I finally feel compelled to jump in and comment. Assuming you really believe this and are not trolling, what is to stop me using identical reasoning to defend Bush/Cheney? How do we know that Bush/Cheney weren't so worried about the growth of an Unconstitutional degree Executive power that they did their best to push the envelop to a ridiculous extent in the hopes legal roadblocks would be created to prevent Executive power from ever being abused again? Hmmm maybe because we judged them by what they did rather than assuming they secretly had motives directly opposite to those motives indicated by their actions? Which would mean a failure to do the same for Obama is a grotesque symptom of partisan hackery.

Keep on fighting the good fight Glenn,

A pensive

Cinlef

Glenn,

What's your take on the admission in the Obama filings that the filings under Bush on this case included "inaccurate information"? Marcy has a long, informative post on that (linked at my name).

I agree that the position taken by DOJ has been just as awful now as it was under Bush, but this move (admitting the "inaccurate information") seems to me to have been made under the assumption that Walker will eventually see more classified information than he has seen to date. That makes it seem to me that the Obama DOJ is continuing to argue what it knows will be a losing point. That's totally baffling to me, other than the lame lines offered previously about protecting the "institution of the presidency".

It seems like shooter is filling in for Dawn Johnsen until she gets confirmed and is cranking out "Article 2" in response to everything.

not his empty promises or pretty words.

Although it is amusing to watch the Obama supporters twist everything he does into some kind of grand plan that only he knows and understands.

It's the same logic they use to justify the existence of their god.

But it seems that classified information is currently regulated solely by Executive Order, and while the theory may be that this EO is a valid exercise of the President's Article II powers. . . .

How could an Executive Order -- which, by its very terms, governs the executive branch -- possibly bind an Article III court and limits its powers to consider relevant evidence?

I don't know that it necessarily entails an assertion that Congress could not limit that power by legislation. They just haven't done so.

You're mistaken. Congress has enacted both a general statute governing the procedures for a federal court to evaluate classified information and a specific FISA-specific statute that governs exactly this case.

See 1806(f):

http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001806----000-.html

And the District Court has ruled exactly that.

What's your take on the admission in the Obama filings that the filings under Bush on this case included "inaccurate information"? Marcy has a long, informative post on that (linked at my name).

I'm hesitant to speculate about that. I assume that what happened is that the Bush DOJ lied to the court, assuming Walker would never see the documents, and now that the Obama DOJ realizes there's a good chance he will, they don't want to be responsible for the lie to the court, so they corrected it.

The Judge, in his last order, already threatened DOJ lawyers with sanctions if they don't comply with the Order to initiate the process to clear the plaintiffs' lawyers to see these documents. I just assume that Obama lawyers found the inaccuracy and didn't want to be responsible for it.