The federal judiciary is further right than it has been at any time since the late 1930's.
In a 6-5 decision, the en banc panel dismissed a lawsuit against the government and contractors where the government had tortured the plaintiffs in secret prisons around the world.
The dissent had the proper understanding of the fascist legal doctrine now developing a strong ability to do away with government accountability and due process of law:
The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now(Ninth Circuit Opinion, page 42 of PDF, emphasis added). There is little wonder that poll after poll shows that the American people overwhelmingly see the nation going in the wrong direction.
presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.
The next post in this series is here.