PEOPLE FOR BLOG

New Hampshire Joins the Fight for Marriage Equality

As you may know, Governor John Lynch of New Hampshire signed a marriage equality bill into law yesterday. Previously, Gov. Lynch had supported civil unions, but not not same-sex marriage. In a statement released yesterday, the governor made clear that his feelings on the matter had shifted course, thanks to the case made by activists, same-sex couples, and the general public:

"Two years ago in this room, I signed civil unions into law. That law gave same-sex couples in New Hampshire the rights and protections of marriage. And while civil unions was recognized as a step forward, many same-sex couples made compelling arguments that a separate system is not an equal system.

They argued that what might appear to be a minor difference in wording to some, lessened the dignity and legitimacy of their families."

New Hampshire joins the growing list of states that have passed laws supporting full marriage equality: Massachusetts, Connecticut, Vermont and Maine, along with Iowa.

The governor signed the bill amid cheers of praise, as he was joined in the Executive Council Chamber by lawmakers and activists who had fought so hard to make marriage equality a reality.

Bishop V. Gene Robinson, an openly gay religious leader who heads the Episcopal Diocese of New Hampshire, spoke at a celebratory rally. He "told supporters to savor the moment so they can tell their children and grandchildren 'you were here and you made it happen.' "

Gov. Lynch didn't miss out on an opportunity to point out that same-sex couples still face unequal treatment from the federal government:

"Unfortunately, the federal government does not extend the same rights and protections that New Hampshire provides same-sex families, and that should change."

The law will take effect January 1, 2010, and by that time, hopefully, more states will have followed suit.

PFAW

Wendy Long May Have More in Common with Sotomayor Than She Thought

If you’ve been following the nomination of Sonia Sotomayor to the Supreme Court, the term “reverse-racist” has undoubtedly appeared in a story you’ve read. Rush Limbaugh branded Sotomayor a ‘reverse-racist’ on his radio show, while Newt Gingrich labeled her a racist when he posted a statement on his Twitter account.

Some right wing groups claim that Sotomayor is a judicial activist who will bend the law based on her own personal views.

Wendy Long of The Judicial Confirmation Network, a conservative-leaning organization involved with judicial nominations, sent a letter to Senators yesterday outlining these concerns:

“Judge Sotomayor challenges the belief that the law needs to be knowable and predictable . . .” 

Long accused Sotomayor of embracing judicial activism, and claims that “when judges drive such change, based not on the written Constitution and laws enacted by the people, judges use their own sense of personal "justice," based on their own experiences, personal views, feelings, and backgrounds.”

Sadly, the facts get in the way of Long’s argument. Take, for instance, Sotomayor’s ruling in the case of Pappas v. Giuliani. In short, the case involved Thomas Pappas, an employee of the New York City Police Department, who was fired for mailing racially offensive, anonymous letters to organizations that had solicited him for donations.

A reverse-racist, judicial activist, such as Sotomayor, must have ruled in favor of the city, claiming that Thomas violated the rights of others through his offensive remarks, right?

Wrong. It turns out that Judge Sotomayor did exactly what Wendy Long would have wanted―she made her ruling based “on the written Constitution and laws enacted by the people.” Citing the NYCLU’s briefing on the case, Sotomayor and her Second Circuit panel concluded that: 

“The reduced free-speech protections accorded to public-employee speech related to the workplace also extended to private and anonymous speech by employees that took place away from the workplace and that was unrelated to the workplace” 

 Rather than let her personal beliefs get in the way of her ruling, Sotomayor upheld one of America's oldest laws by defending a bigot’s right to be a bigot.

PFAW

Confirm Sonia Sotomayor

You may have heard that President Obama nominated Judge Sonia Sotomayor to fill the Supreme Court vacancy left by the retirement of David Souter.

Sotomayor is a superb choice, and we're working with our allies to help introduce her to the country. 

And don't forget to sign our petition calling on the Senate to confirm Judge Sotomayor to the Court!

PFAW

Empathy as the Enemy

Taking a cue from Karl Rove’s playbook, the Right is trying to transform one of the key strengths of a top-quality jurist – empathy – into a serious flaw. For example, earlier today, Michael Steele told an audience that "the President is looking to put Doctor Phil on the Court."

Last Friday’s Washington Post reported on the Right’s strategy:

An early line of attack emerged last week when Obama told reporters that his eventual nominee would have, among other characteristics, a "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. "What he means is he wants empathy for one side, and what's wrong with that is it is being partial instead of being impartial," said Long, a former clerk to Justice Clarence Thomas. "A judge is supposed to have empathy for no one but simply to follow the law."

A judge who is willfully blind to impact of the law on real people would be a throwback to the type of jurisprudence that once kept women from becoming lawyers, that kept blacks and whites in separate schools, that kept Japanese Americans in detention camps, and that kept gay men in constant fear of arrest and imprisonment.

Just take a look at Plessey v. Ferguson, the 1896 case that upheld racial segregation. The Court deliberately ignored the real-world effect of segregation:

We consider the underlying fallacy of the plaintiff's argument [that state-mandated segregation violates the Constitution] to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

African Americans living under Jim Crow would have to wait more than a half century before Justices with empathy would reconsider the issue.

Empathy is not a strike against a judge: No jurist committed to our core constitutional values can be without it. And that’s the type of jurist we need on the Court.

PFAW

Proposition 8: Open Season on Minorities?

We’re all waiting to see how the California Supreme Court rules on the constitutionality of Proposition 8. Equality advocates argue that stripping lesbian and gay people of the right to marry was what California law calls a revision: a constitutional change so fundamental that it should not have been allowed on the ballot without first being approved by a constitutional convention or a legislative supermajority.

In contrast, Proposition 8’s far right supporters claim it was a constitutional amendment: a non-fundamental change that properly went directly to the voters. Supporters of Prop 8 have also loudly condemned equality advocates for going to court after the election, saying that such a move is illegitimate because the people have already spoken.

The Right is wrong on both counts.

First, Prop 8’s sponsors conceded the legitimacy of post-election judicial review last summer. That’s when equality advocates first went to court and argued that Prop 8 was a revision and should, therefore, be taken off the ballot. In response, the Proposition 8 sponsors told the California Supreme Court:

Judicial review of petitioners’ claim that Proposition 8 is a constitutional "revision" should be deferred until after the impending election. …

The availability of postelection relief in this case makes it preferable to leave the challenge for resolution with the benefit of full, unhurried briefing, oral argument, and deliberation that generally will be available after the election instead of resolving the case in the often charged and rushed atmosphere of an expedited preelection review. (emphasis added, internal quotations removed)

As we all know, the California Supreme Court refused to strike the initiative from the ballot. So now that it’s "after the impending election," Prop 8’s sponsors are in no position to accuse progressives of bad faith as far as timing is concerned.

They are also wrong on the substance.

Last year, the California Supreme Court determined that sexual orientation is a suspect classification under the state’s Equal Protection clause: Any law treating people differently due to sexual orientation must be subjected to the strictest level of scrutiny in order to be constitutional.

With Prop 8, a suspect classification (sexual orientation) can now be used to deny certain people a fundamental right (the right to marry). In other words, the California Constitution was changed to eliminate the requirement that all receive equal protection under the law, surely the most fundamental of changes in the state’s governing compact.

The purpose of the Equal Protection clause is to limit the ability of popular majorities to take away the basic rights of the less powerful or popular. Before the election, the right of gays and lesbians to marry was a fundamental right protected by the state’s Equal Protection guarantee.

So Proposition 8 did far more than "simply" redefine marriage. Through Proposition 8, a simple majority vote took away fundamental rights from a minority. If the underlying purpose of the Equal Protection clause can so easily be ignored, then the constitutional guarantee of Equal Protection has been de facto eliminated.

That cannot be considered anything except the most fundamental of constitutional changes – a revision under California law, not an amendment.

The implications of the Right’s arguments are terrifying.

If the fundamental right to marry can be taken away from gay people by simple majority vote, what right can’t be taken away from gay people that way? Can voters prohibit gays from getting driver’s licenses? From opening restaurants? From owning property?

And why limit this to lesbians and gays? Under California law, voters would be able to “redefine” marriage to be the union of people of the same race. Or they could prohibit women from driving. And they could do it with nothing more than a simple majority vote. Surely the California Constitution prohibits these outrages.

The California Supreme Court should not open this Pandora’s Box. Proposition 8 must be struck down.

PFAW

Maine Becomes Latest State to Make Gay Marriages Legal

Today, Maine became the latest state to affirm the freedom to marry for same-sex couples, joining Massachusetts, Connecticut, Iowa, and Vermont when Gov. John Baldacci signed into law LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom. People For the American Way applauds Gov. Baldacci for recognizing that this is about fairness and equal protection under the law for all citizens of Maine. In a public statement, Gov. Baldacci said:

“In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.

“Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’

“This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State.

“It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government.”

This news comes a day after the D.C. Council voted 12-1 to recognize same-sex marriages performed in other states. Congratulations to the Maine Legislature and all those who are working hard to make fairness and equality for same-sex couples in Maine a reality.

PFAW

Does the Anti-Gay Movement in DC think that Congress should run the District?

As a supporter of marriage equality for all people, I'm thrilled at the almost-unanimous vote of the DC City Council to recognize marriages of same-sex couples performed elsewhere.

As a supporter of marriage equality for all people and voting rights for the residents of DC (myself included,) I'm a little concerned about the response from the anti-marriage forces on the right.

Another protester, C.T. Riley, added: "This is not over. We are going to the Hill with this issue."

. . .

Bishop Harry Jackson, senior pastor of Hope Christian Church in Beltsville, who opposes gay marriage, said opponents are developing a "political and legal strategy" to block same-sex marriage in the District.

Does this imply that right wing activists are going to attempt to ignore the decision of the elected representatives of the District of Columbia by asking a body in which District residents have no representation to overrule the decision?

I look forward to discovering how this jives with the right's opposition to pro-gay rulings from "unelected judges" and allegations that it's the pro-gay rights community which is "usurping" the legacy of civil rights movement.

PFAW

Don’t Believe the Right’s Propaganda on the Supreme Court

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

PFAW

Justice Souter to Retire at the End of the Term

Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.
 

PFAW

Rep. Virginia Foxx (R-NC) claimed on the House Floor yesterday that Matthew Shepard, whom the Hate Crimes bill is named after, was killed "in the commitment of robbery," not because he was gay. Rep. Foxx went on to say, "the hate crimes bill was named for him, but it's, it's really a hoax, that that continues to be used as an excuse for passing these bills."  

Even more reprehensible, she said all of this while directly across from Judy Shepard, the mother of the Matthew Shepard. 

Un-be-lievable.

A quick look at her voting record, and you can see she marches in lockstep with Rush Limbaugh and the far right base of the party. She earned a 100% rating by the Naitonal Right to Life Committee for her pro-life stance; a 0% rating by the Human Right Campaign for her anti-equality votes; and 19% rating by the NAACP for her anti-affirmative-action votes. In September 2005, Foxx was one of 11 members of Congress to vote against the $51 billion aid package to victims of Hurricane Katrina. In July 2006, she joined 32 of her Republican colleagues to vote against the extension of the landmark Voting Rights Act championed by Dr. King.

She earned every bit of Keith Olbermann's designation for her as yesterday's "Worst Person in the World." North Carolinians deserve much better.

Find out the truth about hate crimes here.

PFAW

Good Questions for Jay Bybee

Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”

Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”

These are excellent questions. The American public deserves to have the answers.

Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004, concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month, authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.

PFAW

During floor debate on the Hate Crimes House Bill, Rep. Bobby Scott entered into the record the good work of our African American Ministers in Action. He held up our letter in support of the Hate Crimes legislation, and our fact sheet on the bill.

Thanks to Rep. Scott for the shout out, and to the ministers for their hard work on this critical legislation!

PFAW

Springtime of Marriage Equality

Spring 2009 continues to be a historic season of equality. Earlier today, the New Hampshire Senate passed a marriage equality bill. The House passed the bill last month. However, because of a small amendment made by the Senate, the bill has to go back to the House.

According to the Manchester Union Leader:

A bill legalizing same-sex marriage in New Hampshire passed the Senate today on a 13-11 vote.

The bill, amended on the Senate floor, draws a distinction between civil and religious marriage, and says that any two individuals have a right to join together in a civil marriage.

Last week Senate Judiciary Committee chair Sen. Deborah Reynolds, D-Reynolds, opposed the bill and voted with a committee majority that it should be killed. She said voters in her district told her they favor the legislation, and urged the Senate to vote for an amendment that was drawn up Tuesday night.

She said the wording “gives everyone in the state the right to seek a civil marriage … This is a compromise that is respectful to both sides in this debate and meets our shared goals of equality in state laws for all the people of New Hampshire. The people of this sate share the core values of equality for all, tolerance and acceptance regardless of our differences”

In neither the House nor the Senate did the bill pass with anything approaching a veto-proof majority. So what will the governor do once the bill reaches his desk?

It’s not clear how Gov. John Lynch will handle the bill. He has he said thinks the word marriage should be reserved for a traditional heterosexual relationship. He has argued that the state’s civil unions law already protects the rights of gay and lesbian couples.

Nothing requires Lynch to sign the bill into law. He can let it take effect without his signature once it arrives on his desk.

If the governor is watching the polls to see what the electorate wants him to do, he should know that most support marriage equality. According to the Advocate:

The New Hampshire Freedom to Marry Coalition has released a poll showing that 55% of New Hampshire voters support marriage for lesbian and gay couples, while 39% are opposed. ...

The poll also found that 63% of Independent and 34% of Republican voters in New Hampshire support marriage for lesbian and gay couples. Only 32% responded yes to a question asking if they would be “bothered” if same-sex couples could get a marriage license.

This comes one day after marriage equality legislation in Maine won a key joint committee vote. The bill now advances to the full House and Senate, which may vote on it as soon as next week.

The history of America is one of constant improvement, as each generation reaches out to some who have been treated as a threatening “other” and at last recognizes “them” as part of “us.” It’s a beautiful thing.

PFAW

NAMUDNO In the Supreme Court

This morning the Supreme Court heard oral argument in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, a case involving a small municipal district in Austin, Texas seeking to invalidate a key provision of the Voting Rights Act of 1965 - one of the most important civil rights laws in American history.

With the passage of the Voting Rights Act, Congress finally acted to prevent discriminatory tactics designed to prevent minorities from exercising their fundamental right to vote. Section 5, in particular, is the centerpiece of the Act, and requires certain covered jurisdictions where voting discrimination has been the most flagrant to seek a preclearance from the Justice Department or a three-judge panel of the federal court in DC for any voting related changes. According to the statute, preclearance will be given as long as the proposed change does not have the purpose or the effect of denying or infringing on the right to vote because of one’s race or color.

In this case, the party seeking to invalidate Section 5 is a municipal utility district in Travis County, Texas, that conducts elections to select the members of its board of directors. Because the State of Texas is a covered jurisdiction, the district is subject to the preclearance requirements of Section 5, and sought relief under the Act’s bailout provision in federal court in the days following the reauthorization of the Act in 2006. Alternatively, the utility district sought to invalidate the provision if it could not bailout from its requirements. It failed on both counts in the courts below.

Today’s arguments confirm that Justice Kennedy again holds the deciding vote on whether the Court will weaken or invalidate a provision upheld by the very same Court four times in the past.

To those who argue that Section 5 is no longer needed because racial discrimination no longer exists, as evidenced by the election of the country’s first African American president, look at the facts. Because of Section 5’s sunset provisions, Congress was required to re-examine whether the statute is needed and last conducted an examination of this type in 2006. The House and Senate Judiciary Committees held a combined 21 hearings over 10 months and received testimony from over 90 witnesses, including state and federal officials, experts and private citizens. And although they concluded that significant progress had been made, they recognized that “[d]iscrimination today is more subtle than the visible methods used in 1965” and concluded that discrimination continues to result in “a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” Congress voted 390-33 in the House and 98-0 in the Senate that, among other things, Section 5 was still necessary.

We hope that Justice Kennedy will remember the extensive record finding Congress performed in 2006 and remember his words earlier this year when he wrote in Bartlett v. Strickland, “Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions. . .”


Deborah Liu is General Counsel to People For the American Way, which is a defendant-intervenor in the case.

PFAW

Victory for the Rule of Law

Great news on the accountability front: Today, a unanimous three-judge panel of the Ninth Circuit Court of Appeals gave the thumbs-down to the blanket invocation of the pernicious "state secrets" doctrine.

According to the San Francisco Chronicle:

A federal appeals court rebuffed the Obama administration's assertion of secrecy today and reinstated a lawsuit by five men who say a Bay Area subsidiary of Boeing Co. helped the CIA fly them to foreign countries to be tortured.

A lawyer from President Obama's Justice Department argued to the court in February that the issues surrounding the "extraordinary rendition" program, including government-sanctioned interrogation methods and the company's alleged connection to the CIA, were so sensitive that the very existence of the suit threatened national security.

The Bush administration had taken the same position and persuaded a federal judge in San Jose to dismiss the suit.

In today's ruling, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said the government and the company could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the Bay Area company to defend itself, the court said.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Citing last year’s Boumediene Supreme Court case, the court writes that

while security depends upon a sophisticated intelligence apparatus, it subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. [internal quotations omitted]

So now the lawsuit against the Boeing subsidiary can proceed. Perhaps it will see some light shed on the Bush Administration's frightening "extraordinary renditions" program.

In a nation governed by the rule of law, we cannot allow the government to shield its illegal actions from judicial scrutiny simply by claiming -- with no supporting evidence required -- that allowing a lawsuit will threaten national security. This "state secrets" doctrine was one of the many ways the Bush Administration evaded responsibility for its own lawbreaking, slammed the courthouse doors on victims of injustice, and arrogated extra-constitutional power to the president. Sadly, in the Ninth Circuit case, the Obama Justice Department took the same approach to this as did Bush's.

Those who knowingly sent people abroad to be tortured by foreign governments, just like those who ordered and enabled torture American style, must face the consequences. Otherwise, America will have become a far different nation than the one that I have always loved.

PFAW