King Kaufman's Sports Daily - All Salon

The NBA Finals finally offer up the close game we've been expecting, but this series continues to confound. Plus: Waltonism of the night, Kid Rock.

I knew if we all kept tuning in — all 23 of us outside of Texas and Michigan who are watching — we’d get to see a good game in the NBA Finals.

Game 5 Sunday wasn’t just good, it was great, an overtime thriller. Robert Horry, who has made something of a career out of this sort of thing, hit the game-winning 3-pointer with 5.8 seconds to go in the extra period to give the San Antonio Spurs a 96-95 win over the Detroit Pistons and a 3-2 lead in the series.

If the Pistons are going to defend their title, they’ll have to win back-to-back games in San Antonio, where they haven’t won since 1997, which isn’t as bad as it sounds. It’s bad, but it’s only 10 games.

One thing that hasn’t changed, now that the Pistons and Spurs have played a close one, is their ability to be confounding.

It wasn’t enough for these two evenly matched teams to play four straight blowouts, the most lopsided first four games in NBA Finals history, no game in doubt anywhere near the end.

It wasn’t enough for the Pistons to win Game 4 by 31 points, the biggest rout in the finals in five years, or for that win to be aided by an offensive explosion to the tune of 17 points by Lindsey Hunter, the defensive specialist who hadn’t scored in double figures in 52 straight playoff games and had shot a horrible 28.1 percent in 21 postseason games this season.

Detroit and San Antonio had to go and give us a Game 5 in which the Spurs pulled out a victory despite the play of their best player, Tim Duncan.

Who had that one in the pool?

Duncan played well to put the Spurs in position to win in the first place. He’d end up with 26 points and 19 rebounds. But down the stretch he looked like he was auditioning for the lead in “The Devean George Story.”

He missed six straight free throws in the fourth quarter and had a chance at a game-winning put-back on Manu Ginobili’s layup at the regulation buzzer, but he mistimed his leap a little bit and could only manage an awkward attempt, which missed.

In the overtime, Duncan missed a shot on each of San Antonio’s first two possessions as the Spurs fell behind by four and didn’t score for 2:50. Then, down by two with 55 seconds to go, he fumbled away a pass in the low post for a turnover.

But the Spurs got a break. Rather than running their offense after they got an offensive rebound, the Pistons had Chauncey Billups stand at the top of the key, guarded by Bruce Bowen, for 17 seconds, running the clock down from 33 seconds to 16. Then he drove into the lane and missed a difficult finger roll.

Duncan got the rebound and called timeout with 9.4 seconds to go, and that set up the inbounds play that led to Horry’s game-winning 3-pointer. It was Horry’s fifth three of the night, giving him 21 points. He’d had zero before hitting a 3-pointer at the end of the third quarter.

The real miracle of this game came on the Pistons’ last chance, when Rip Hamilton drove across the lane guarded by Tony Parker. Hamilton threw an elbow at Parker’s chin just before launching a 14-foot jumper and, incredibly, Parker wasn’t called for a foul.

So now the Flyover Finals fly back down to San Antonio, and the commentariat has to do another about face. Remember after Game 4 how the Pistons had taken over the series, had all the momentum, seemed like they couldn’t lose to the Spurs at home? The only question remaining would be whether the Pistons could get a win in the Spurs’ gym.

Now, thanks to Horry’s shot going in instead of rimming out, a matter of an inch or two, it’s the Pistons who have no chance. Sure, they just got done beating the Spurs by 17 and 31 points and came within an inch or two from sweeping three games at home, but win two straight in San Antonio? Are you kidding?

Well I, for one, wouldn’t put it past them. I don’t think the Pistons are going to win Games 6 and 7 on the road, but in a series in which Detroit has ridden Lindsey Hunter’s shooting to victory and San Antonio has overcome the play of Tim Duncan to get a big win, I’m no longer willing to be surprised by anything.

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Waltonism of the night [PERMALINK]

“I’m befuddled by your comments.” — Greg Anthony to Bill Walton.

Walton had just opened the halftime show with this comment about a game that was then tied 42-42: “Detroit is flat. Ben Wallace is their best offensive player. The Pistons are playing as if San Antonio is just going to give it to ‘em. San Antonio, they’ve got the belief, they’ve got the confidence back. They don’t need to win this game. All they need to do is just be competitive, and they’ve already done that.”

Anthony thought things were looking good for the Pistons because the Spurs played “perfect basketball in essence for about 18 minutes of that half, yet you look at the score and it’s tied.” He didn’t for a minute buy Walton’s idea that the Spurs were “thinking big picture” and just looking not to get blown out in Game 5, so they could go home and win two straight.

“I’m befuddled by your comments.” That was a good one.

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I hear Omerica singing [PERMALINK]

Kid Rock sang “Omerica the Beautiful” again before Game 5. It was exactly the same as his performance last year, so I’ll refer you to my comments from that magical night.

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America’s billionaire-run democracy

Whichever candidate wins the 2012 presidential election will have been bought and paid for by the 1 percent

By Bill Moyers and Michael Winship

(Credit: AP)

Topics:2012 Elections, Campaign Finance, Citizens United

Watching what’s happening to our democracy is like watching the cruise ship Costa Concordia founder and sink slowly into the sea off the coast of Italy, as the passengers, shorn of life vests, scramble for safety as best they can, while the captain trips and falls conveniently into a waiting life boat.

We are drowning here, with gaping holes torn into the hull of the ship of state from charges detonated by the owners and manipulators of capital. Their wealth has become a demonic force in politics. Nothing can stop them. Not the law, which has been written to accommodate them. Not scrutiny — they have no shame. Not a decent respect for the welfare of others — the people without means, their safety net shredded, left helpless before events beyond their control.

The obstacles facing the millennial generation didn’t just happen. Take an economy skewed to the top, low wages and missing jobs, predatory interest rates on college loans: these are politically engineered consequences of government of, by and for the 1 percent. So, too, is our tax code the product of money and politics, influence and favoritism, lobbyists and the laws they draft for rented politicians to enact.

Here’s what we’re up against. Read it and weep: “America’s Plutocrats Play the Political Ponies.” That’s a headline in “Too Much,” an Internet publication from the Institute for Policy Studies that describes itself as “an online weekly on excess and inequality.”

Yes, the results are in and our elections have replaced horse racing as the sport of kings. Only these kings aren’t your everyday poobahs and potentates. These kings are multi-billionaire, corporate moguls who by the divine right, not of God, but the United States Supreme Court and its Citizens United decision, are now buying politicians like so much pricey horseflesh. All that money pouring into Super PACs, much of it from secret sources: merely an investment, should their horse pay off in November, in the best government money can buy.

They’re shelling out fortunes’ worth of contributions. Look at just a few of them: Mitt Romney’s hedge fund pals Robert Mercer, John Paulson, Julian Robertson and Paul Singer – each of whom has ponied up a million or more for the Super PAC called “Restore Our Future” — as in, “Give us back the go-go days, when predators ruled Wall Street like it was Jurassic Park.”

Then there’s casino boss Sheldon Adelson and his wife Miriam, fiercely pro-Israel and anti-President Obama’s Mideast policy. Initially, they placed their bets on Newt Gingrich, who says on his first day in office he’d move the American Embassy in Israel to Jerusalem, a decision that would thrill the Adelsons, but infuriate Palestinians and the rest of the Muslim world. Together, the Adelsons have contributed ten million to Newt’s “Winning Our Future” Super PAC.

Cowboy billionaire Foster Friess, a born-again Christian who made his fortune herding mutual funds instead of cattle, has been bankrolling the “Red White and Blue Fund” Super PAC of Rick Santorum, with whom he shares a social right-wing agenda. Dark horse Ron Paul has relied on the kindness of PayPal founder Peter Thiel , a like-minded libertarian in favor of the smallest government possible, who gave $900,000 to Paul’s “Endorse Liberty” Super PAC. Hollywood’s Jeffrey Katzenberg has so far emptied his wallet to the tune of a cool two million for the pro-Obama Super PAC, “Priorities USA Action.”

President Obama — who kept his distance from Priorities USA Action and used to call the money unleashed by Citizens United a “threat to democracy” — has declared if you can’t beat ‘em, join ‘em. He urges his wealthy supporters to please go ahead and back the Super PAC. “Our campaign has to face the reality of the law as it stands,” his campaign manager Jim Messina said. To do otherwise, he added, would be to “unilaterally disarm” in the face of all those Republican Super PAC millions. So much for Obama’s stand on campaign finance reform — everybody else is doing it, he seems to say, so why don’t you show me the money, too?

When all is said and done, this race for the White House may cost more than two billion dollars. What’s getting trampled into dust are the voices of people who aren’t rich, not to mention what’s left of our democracy. As Democratic pollster Peter Hart told The New Yorker magazine’s Jane Mayer, “It’s become a situation where the contest is how much you can destroy the system, rather than how much you can make it work. It makes no difference if you have a ‘D’ or an ‘R’ after your name. There’s no sense that this is about democracy, and after the election you have to work together, and knit the country together.”

These gargantuan Super PAC contributions are not an end in themselves. They are the means to gain control of government – and the nation state — for a reason. The French writer and economist Frederic Bastiat said it plainly: “When plunder becomes a way of life for a group of men living in society, they create for themselves, in the course of time, a legal system that authorizes it and a moral code that glorifies it.” That’s what the Super PACs are bidding on. For the rest of us, the ship may already have sailed.

: Bill Moyers is managing editor of the new weekly public affairs program, "Moyers & Company," airing on public television. Check local airtimes or comment at www.BillMoyers.com. More Bill Moyers
: Michael Winship is senior writing fellow at Demos and a senior writer of the new series, Moyers & Company, airing on public television. More Michael Winship

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The bishops go off the deep end

Rejecting the Obama contraception compromise, they display their irrelevance to moral and political dialogue

By Joan Walsh

Archbishop Timothy Dolan (Credit: AP/Patrick Semansky)

Topics:Catholicism, Contraception

Just as I was publishing my post about Catholic tribalism on Friday, predicting that the brilliant White House “accommodation” on contraception wouldn’t mollify the U.S. Conference of Bishops, the bishops released a statement that made them seem, well, mollified, at least a little. The new Health and Human Services regulations were “a step in the right direction,” their statement read, and so I softened an assertion that the bishops would continue to wage war against the compromise.

I needn’t have soft-pedaled. Only a few hours later the bishops came out, guns blazing, insisting the only solution they would accept would be for “HHS to rescind the mandate for those objectionable services.” By any employer, for any employee in the entire country — a country where the vast majority of voters, and of Catholics, support Obama’s stand. And at Sunday Mass, bishops and parish priests throughout the nation read aloud the stunningly political letters about the controversy they already had planned. Now, with the bishops’ blessing, Republican are hard at work on legislation that would force HHS to strip the contraceptive coverage requirement for all employers, not just religious employers. Sen. Roy Blunt would allow employers to decline to cover any service they deem objectionable; Sen. Marco Rubio would restrict the legislation to contraception coverage.

I have a couple of reactions to the bishops’ extremism. First of all, as someone raised Catholic, I wonder why they’ve never read letters about any of their social justice priorities: universal healthcare, increased protection for the poor, labor rights, or action to curb climate change? Why does this topic – not even the morally challenging issue of abortion, but the universally accepted practice of birth control – merit such a thundering reaction from the pulpit?

Second, as an American, I also wonder: How do they continue to demand tax-exempt status when they’re railing in their churches about blatantly political – and divisively partisan – public concerns? As the first writer on my remarkably sane Catholic tribalism letters thread remarked, their public support for the extremist GOP position makes me think they should register as a Republican political action committee rather than remain a tax-exempt religious institution outside the bounds of politics.

Even as the bishops became more shrill and extreme, the debate over contraception coverage became smarter and calmer last week. Major Catholic organizations supported Obama’s Friday move, including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA. Before the president’s announcement, famed attorney David Boies did the most to usher in the new tone by framing the HHS rules as a matter of labor law. Boies doesn’t believe, by the way, that HHS is in any way required to provide the exemption for churches it wrote into its regulations even before the compromise. If the church is employing people, whether co-religionists or not, it has a responsibility to comply with employment law. He proved that even the administration’s initial regulations, exempting churches, was a strong attempt at accommodating anti-contraceptive religious groups.

But maybe the best argument on behalf of the Obama administration’s position comes from a very unlikely source, as Jay Bookman points out: Supreme Court Justice Antonin Scalia. In two different decisions, the conservative Catholic Scalia has sided with the court majority in finding that religious teachings can’t justify religious employers – or employees — failing to comply with labor law. In the 1990 Employment Division v. Smith decision, regarding an employer’s ability to fire a Native American employee who used peyote, despite the employee’s claim that using the drug was a religious rite, Scalia wrote:

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” In an even more directly relevant 1982 decision holding that Amish employers must comply with Social Security and withholding taxes, though their faith bars participation in government support programs, Scalia wrote:

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

I’ve written repeatedly that my inability to quit the Catholic Church entirely comes from the fact that its social teachings formed my social conscience, and to this day some of the people doing the most good for the poor and the excluded are devout Catholics. But the bishops are impossible to defend. Today, they are working on behalf of the Republican Party. “They have become the Pharisees,” says Andrew Sullivan, a conservative practicing Catholic. “And we need Jesus.”

I’ll be discussing the bishops’ GOP politicking on MSNBC’s “The Ed Show” at 8 pm ET.

: Joan Walsh is Salon's editor at large. More Joan Walsh

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No, Newt, don’t quit to make room for Santorum

Never, ever listen to the National Review

VIDEO

By Alex Pareene

Newt Gingrich and Rick Santorum (Credit: AP)

Topics:2012 Elections, Rick Santorum, Republican Party, National Review, Newt Gingrich

The National Review has attracted some attention today for publishing an editorial suggesting that Newt Gingrich abandon his presidential run in order to allow Rick Santorum to fly free and destroy Mitt Romney. (Ramesh Ponnuru contests the notion that the editorial calls on Gingrich to quit the race but “the proper course for him now is to endorse Santorum and exit” seems pretty unambiguous even if it’s prefaced with a reminder that Gingrich told Santorum to do the same thing last month.)

Gingrich should not listen to them. At all. (Not that Gingrich listens to anyone, besides perhaps his wife, but still.) This editorial can be safely ignored for the following reasons:

First of all, everyone should always do the opposite of whatever a National Review editorial says to do. The opposite of what “The Editors” want is invariably the correct choice, morally and politically. If politicians always made “doing the opposite of what The Editors of the National Review want” a top priority, there would be universal peace and prosperity and kick-ass super-trains crisscrossing the nation.

Second, The Editors don’t even have the facts of Santorum’s surge correct: As Dave Weigel points out, Gingrich, contrary to The Editors’ claims, has won more delegates than Santorum thus far. Santorum has three delegates. Three. The press likes to cover caucuses and primaries even when they’re meaningless and non-binding and feature negligible turnout because those are the only actual events to cover in a primary race, but the result is that a couple of random wins are massively over-imbued with supposed import, leading even the politically savvy Editors of the National Review to believe that Rick Santorum has actually won a bunch of delegates because he got some old people into some auditoriums in suburban Minnesota.

Third, there is nothing about the Santorum surge that makes it any more sustainable or solid than all the previous candidate surges, except that it’s happening while primary contests are actually happening instead of last September. In other words, a Santorum collapse could be imminent, and it could come whenever Mitt Romney gets around to seriously devoting his attention to destroying him with money. Santorum has a lot of room to be attacked from the right, especially since he’s got the Rust Belt Republican politician habit of occasionally sounding sympathetic to working-class resentment of rich people. And his political history is filled with assorted crimes against current fanatical GOP dogma. Weigel posted a good one earlier: An old campaign ad in which Santorum actually admits to loving newspapers.

Oh also something about supporting Amtrak, despite trains being part of the UN plot to destroy American sovereignty.

Finally, there is the fact that Rick Santorum is an unambiguously awful candidate. He is not just a “social conservative,” he is a paleolithic anachronism of reactionary thought. The American people, despite the fervid wishes of a couple bishops and Kathryn Jean Lopez, are not actually remotely anti-contraception. Most voters — especially since the ratification of the 19th Amendment — think women should be allowed to have jobs outside the home. The last time the Republicans won a presidential election, they had 48% of the female vote, and I imagine they’d like to tie or beat that number this year, maybe? Rick Santorum is decidedly not the man for that job, unless scientists invent some sort of mind control ray that falls into the hands of Phyllis Schlafly.

So, no, Newt Gingrich, don’t quit just yet, and I’m not just saying that because having Gingrich around makes a political writer’s work marginally more colorful. All Gingrich really needs to remain “competitive” in the media race through Super Tuesday is one more big check from his rich uncle Scrooge McAdelson.

(Not that Gingrich is going to be the nominee! It’s still going to be Romney unless something unprecedentedly hilarious happens at the convention.)

: Alex Pareene writes about politics for Salon. Email him at apareene@salon.com and follow him on Twitter @pareene More Alex Pareene

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Whose Wisconsin recall is it?

Veer to the populist left or hug the middle of the road: That's the choice facing the campaign against Scott Walker

By Josh Eidelson

Retired firefighter Jim Cerro, second from right, of Madison, cheers the effort to recall Wisconsin Gov. Scott Walker, Tuesday, Jan. 17, 2012, in Madison, Wis.

Retired firefighter Jim Cerro takes on Wisconsin Gov. Scott Walker (Credit: AP/Andy Manis)

Topics:2012 Elections, Wisconsin, Scott Walker, Editor's Picks

The Scott Walker recall is already historic. Last month, organizers submitted signatures from over a million Wisconsinites, the largest portion of an electorate to ever petition for recall of a United States governor. The total – nearly double the number required – means near-certain certification by the state’s election board of what will be the third gubernatorial recall in American history. Last week’s $700,000 pro-Walker ad buy by the Koch brothers’ Americans for Prosperity was the latest confirmation that the Walker recall will be a marquee race. But what kind of race will Walker’s opponents seek: a battle of competing centrist appeals, like the fall presidential election, or something very different?

Last winter, the three-week occupation of Wisconsin’s capitol brought into sharp relief what would become two of the year’s defining forces: Emboldened far-right state governments and emergent left populist movements. After Walker successfully pushed through his “budget repair” bill to cripple public workers’ collective bargaining rights, much of the energy of the capitol occupation shifted to efforts to recall the bill’s midwives in the Senate. Though they took place in Republican-leaning districts, last summer’s recall campaigns against six GOP senators were marked by fierce populism rather than cautious moderation.

TV ads, door-to-door canvassers, and some of the Democratic candidates themselves portrayed Republicans as rich people out to screw the 99 percent. Their effect, Wisconsin AFL-CIO secretary-treasurer Stephanie Bloomingdale told me during the campaign, would “determine how we do these kinds of populist messages in other states.” The result was a split decision. Two Senate Republicans went down, and four held on (all three Democrats facing similar recall elections survived). The effort fell one success short of the announced goal of flipping the state Senate, but it was a striking victory against senators who had weathered the Democratic wave of 2008. And it laid the groundwork for the recalls now facing more GOP senators, the lieutenant governor and Walker himself.

Will the campaign against Walker pick up the populism where those recalls left off, making class-based appeals and drawing sharp contrasts? Or will it pander to the moderate sensibilities of an imagined middle 5 percent? A few factors will make the difference.

First will be the selection of a candidate. “The key to winning is to have a candidate who is a champion,” says SEIU Healthcare Wisconsin vice president Bruce Colburn, “and not somebody who is more of the same, or wants to be in the middle of the road.” Once Wisconsin’s elections board certifies the petitions, dates will be set for a general election (expected in spring or summer) and a Democratic primary preceding it. By then, there could be a consensus candidate – or not.

In an early sign that “Anybody but Walker” won’t cut it, a rumored candidacy by Walker’s 2010 Democratic opponent, Milwaukee Mayor Tom Barrett, has been met by public and private discouragement from unions charging that his own hostile relations with public sector workers should be disqualifying.

“I would hope that Tom Barrett understands the issues here, and why he might not fit the matrix of what a champion looks like,” says Marty Biel, executive director of the largest local of the state’s largest district council of the American Federation of State County and Municipal Employees (AFSCME).

One public face of the Wisconsin uprising, Fire Fighters Union president Mahlon Mitchell, has been publicly weighing his own run, though it appears unlikely. Assembly Minority Leader Peter Barca, a prominent Walker antagonist, is a potential candidate. State Sen. Kathleen Vinehout, who has often sided with the GOP, announced her candidacy on Wednesday and touted her role as one of the “Wisconsin 14” senators who fled the state last year in opposition to Walker’s bill.

The state’s largest teachers union announced Wednesday it’s backing the other declared candidate, former county executive Kathleen Falk. But Madison Teachers Inc. president John Matthews, whose union’s mass walkout helped jump-start the capitol occupation, says he wants more candidates to join the race. If there’s a theme here, it’s this: Labor expects to play a major role in vetting a candidate, and electability alone won’t be enough this time.

But it won’t just be the candidate setting the tone; so will the tactics. To channel, and resemble, an actual popular movement, much of the campaign will have to take place in face-to-face conversations rather than just on TV. The more progressives take the campaign door to door, the more populist it will be – and that may be where the campaign is won or lost. Activists expect the message on the doors will be more aggressive than whatever the candidate’s own message is. “It’s pretty clear that when people call him ‘1 percent Walker,’ that resonates,” says Colburn, who adds that labor will supplement traditional voter canvassing with rallies around the state.

Then there’s the message of the TV ad wars, of which Americans for Prosperity’s $700,000 is just a harbinger. Much the advertising in the Senate recalls came not from the Democratic candidates or party, but from the labor-community We Are Wisconsin coalition.

“Historically it was labor and the Democratic Party that partnered in the political process,” says Biel. “But here the change is, it’s labor and the community that partner in the political process.” We Are Wisconsin’s ads helped establish the campaign’s populist edge, and some Democrats’ ads reinforced it. The more third-party groups dominate advertising, the more populist it’s likely to be. A spokesperson for Democracy for America says the national group will support We Are Wisconsin’s efforts.

All of these influences will be mediated by the events unfolding outside the campaign over the next few months. Positive economic signs that buoy Obama’s reelection chances would do the same for Walker. If the economy improves, progressives may be more hesitant to skewer Walker as representing the 1 percent — but that kind of contrast will become even more important.

Even more significant may be the metastasizing corruption controversy embroiling Walker. One of the former Walker aides charged with illegal campaigning Tuesday pled guilty as part of a deal in which she’ll testify against other Walker associates. Walker himself has retained a pair of criminal defense attorneys to accompany him to a meeting with Milwaukee’s district attorney. If the scandal intensifies, it could become the centerpiece of a cautious, moderate campaign that skirts ideology and makes the case Walker is just too corrupt and divisive to serve. Or the scandal could be folded into a populist narrative in which Walker’s alleged crimes are portrayed as an extension of his corporate agenda.

“The message we started here has gone out [through] the Occupy movement and really resonated,” says Democracy Addicts founder Ed Knutson, who’s been active in last year’s capitol demonstrations and Occupy Wall Street. Knutson expects “a strong populist element” to the campaign. “There’s a real opportunity here to … move it a little bit further back to the left.”

The AFL-CIO’s Bloomingdale says the work of the recall – long days volunteering in the cold – has raised activists’ expectations. “People didn’t go out and collect those signatures in those conditions for nothing.”

: Josh Eidelson is a freelance journalist and a contributor at The American Prospect and In These Times. After receiving his MA in Political Science, he worked as a union organizer for five years. More Josh Eidelson

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U.S. v. Pakistan on transparency and accountability

A Pakistani Supreme Court ruling does something unthinkable in the US: compels disclosure of detainee abuse

By Glenn Greenwald

Virtually without exception, the American judiciary has refused to allow any victims of America’s War on Terror abuses — whether foreign national or American citizen — to even have their claims heard in court. Federal courts have repeatedly shielded government officials from any accountability for these abuses, not by ruling in their favor on the merits, but by ruling that they need not answer for their actions at all. Courts have accomplished this whitewashing by accepting the Bush and Obama DOJ’s arguments that government actions undertaken as part of the War on Terror are completely shielded from judicial review — i.e., from the rule of law — by both secrecy doctrines (it’s too secret to risk having a court examine) and immunity prerogatives (government officials cannot be sued even for egregious wrongdoing committed while in office). Here are just a few illustrative examples:

Findlaw, November 19, 2007 – U.S. court bars judicial challenge to warrantless eavesdropping brought by victims:

Last week, in Al-Haramain Islamic Foundation, Inc. v. Bush, the U.S. Court of Appeals for the Ninth Circuit ruled that the “state secrets privilege” forbids plaintiffs from going forward with their challenge to the National Security Agency’s (“NSA’s”) warrantless wiretapping program. In order to make their case, the court ruled, the plaintiffs would have to rely on evidence that would compromise national security.

New York Times, September 8, 2010 – U.S. court bars judicial challenge to torture program brought by victims:

A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information. The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. . . .

In April 2009, a three-judge panel on the Ninth Circuit adopted the narrower view, ruling that the lawsuit as a whole should proceed. But the Obama administration appealed to the full San Francisco-based appeals court. A group of 11 of its judges reheard the case, and a narrow majority endorsed the broader view of executive secrecy powers. They concluded that the lawsuit must be dismissed without a trial — even one that would seek to rely only on public information.

David Cole, New York Review of Books, June 15, 2010 - U.S. court bars judicial challenge to rendition program brought by victim:

On Monday, June 14, the Supreme Court declined to hear Maher Arar’s case, conclusively shutting the door on the Canadian citizen’s effort to obtain redress from US officials who stopped him in September 2002 while he was changing planes on his way home to Canada and shipped him instead to Syria, where he was tortured and imprisoned without charges for nearly a year. In so ruling, the Court refused to reconsider the decision of the US Court of Appeals for the Second Circuit, sitting en banc, which had ruled in November 2009 that Arar’s case raised too many sensitive issues of national security and confidential information to permit its adjudication in a court of law. . . .

[W]hen we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution. Regrettably, the courts agreed with the Bush administration position—and so has Obama’s Department of Justice.

New York Times, December 7, 2010 - U.S. court bars judicial challenge to targeted assassinations of citizens:

A federal judge on Tuesday threw out a lawsuit that had sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric in hiding overseas who is accused of helping to plan attacks by Al Qaeda’s branch in Yemen. The ruling, which clears the way for the Obama administration to continue to try to kill Mr. Awlaki, represents a victory in its efforts to shield from judicial review so-called targeted killings, one of its most striking counterterrorism policies. . . .

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” [the ACLU's Jameel] Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

AP, January 23, 2012 - U.S. court bars judicial challenge to due-process-free imprisonment of citizens:

A federal appeals panel on Monday turned away efforts by a U.S. citizen who was detained for nearly four years as an “enemy combatant.” Jose Padilla’s efforts to reinstate a lawsuit against former Defense Secretary Donald Rumsfeld and other government officials were rejected by the 4th U.S. Circuit Court of Appeals in Richmond.

Padilla contended that he’s entitled to sue because the government deprived him of other ways to seek remedies for his treatment. The appeals panel affirmed a federal judge’s dismissal of Padilla’s lawsuit, ruling that Congress, not the court system, has jurisdiction over military detention cases and that Congress has not explicitly provided a remedy for civil damages.

But consider the extraordinary — and now distinctly un-American — event that just happened in Pakistan, from CNN, today:

Seven men detained by Pakistan’s spy agency, the ISI, appeared in court Monday in a landmark case that places one of the nation’s most powerful institutions under the scrutiny of its highest court.

The men — who appeared to be in pain and poor health — hobbled into the courthouse, surrounded by dozens of armed police officers and family members. . .

Pakistan’s Supreme Court ordered the government to give each detainee a medical exam and report the results in four days. The court also ordered the spy agency to produce all documents related to the detention of the men by the first week of March. . . .

The ISI has also been ordered to explain the deaths of four other detainees. . . .

The Supreme Court case breaks new ground in that the ISI has long been thought untouchable. Legal proceedings in the nation’s highest civilian court could expose the inner workings of the secretive agency like never before.

Few people have ever challenged the ISI, Pakistan’s most feared and shadowy institution. The spy agency has been accused of backing and toppling politicians, using militant groups as proxies and backing extrajudicial killings.

The ISI has denied the accusations, but no one from the agency ever speaks publicly on camera and no one from the ISI has ever been put on trial.

One constantly hears in American political discourse that Pakistan is so terribly un-democratic because the shadowy, omnipotent ISI functions with no accountability or transparency. Yet here they are being ordered by that nation’s highest court to account for serious detainee abuse (this, despite the fact that Pakistan’s problems with Terrorism are, at the very least, as pressing as those faced by the U.S.). Yet this type of accountability just brought to Pakistan’s intelligence service is simply inconceivable in the United States. It is virtually impossible to imagine the U.S. Supreme Court ordering the CIA to disclose documents about its treatment of detainees or, even more unrealistically, to permit the victims of CIA abuse to have their grievances heard in court. Anyone who doubts that can simply review the past decade of full-scale immunity bestowed by the Justice Department and subservient American federal courts on all executive agencies in the War on Terror. We should think about that the next time some American pundit, politician, or media figure righteously holds forth on how undemocratic and oppressive is Pakistan as opposed to the U.S.