Emily Bazelon and Dahlia Lithwick discuss the state-secrets privilege and other issues facing Obama's Justice Department.

Real-time discussions with Slate writers.
Feb. 12 2009 12:39 PM

Courtroom Confidential

Emily Bazelon and Dahlia Lithwick take your questions on the state-secrets privilege and other tough issues facing Obama's Justice Department.

(Continued from Page 1)

Dahlia Lithwick: I think if you ask someone like Philippe Sands, the British lawyer who wrote The Torture Team, there is more than a real possibility, under the principle of universal jurisdiction that people like Donald Rumsfeld and others who approved the US interrogation policies will be prosecuted in other countries. Especially now with Susan Crawford and Eric Holder calling what was done to these prisoners "torture" it becomes likely.

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Bethesda, Md.: Do you think that, in order to show a true respect for the law, the White House should cooperate in a full investigation of any potential crimes by the previous administration? Because it seems like in order for the law to have merit, it has to apply all the time, not just when it's politically expedient.

Dahlia Lithwick: Well Bethesda, I couldn't agree more. The problem I have with the (apparent) decision not to investigate potential criminal wrongdoing in the previous administration, is that I hear few LEGAL arguments to support it. I hear a lot of pragmatic arguments: people don't want it; the economy is too bad; it would tear the country apart; the wrongdoers meant well . . . but no legal ones. Like you I feel that if we can invent reasons not to look into the wrongdoing at the highest levels, it becomes hard to justify prosecuting bankrobbers or drug dealers.

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Pensacola, Fla.: In today's tumultuous economic times when Americans are struggling with home foreclosures and credit debt, will the Obama Administration make a push to abolish the "means test" as a prerequisite in Federal Bankruptcy Courts?

Emily Bazelon: Obama certainly called for getting rid of the means test during the campaign. The way the means test currently works—as a result of the changes Congress made in 2005, which made it harder to file for bankruptcy—is that you undergo a means test if you're filing for Chapter 7 bankruptcy. T he court assesses your income level and expenses. Then if you don't qualify, you have to file under Chapter 13 instead of Chapter 7, which means that you have to set up a plan for repaying your creditors.

As I understand it, if the administration wants to modify the terms of housing loans to give people relief on their mortgages, the means test is a problem. That's because it doesn't allow for the deduction of mortgage payments from monthly expenses, even if you're not keeping your house.

Obama voted against the 2005 bankruptcy bill. Reforming this area of law is a natural reform for him to take on, given the extent to which foreclosures are driving the economic downturn. The means test also sometimes causes problems for people seeking bankruptcy for medical reasons. It's hard to say what Obama will push for first right now, since we don't know much about his plan to combat foreclosures. And the reform of bankruptcy law has opponents with lots of money behind them, like the credit card companies, as we saw when it fell out of the first round of TARP legislation. But now the Democrats should have the power to make some of these reforms happen.

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Washington, D.C.: So what's next in challenging the use of the state secrets privilege? Is the current round over?

Emily Bazelon: Next is a couple of fronts. In the Jeppesen case, the Ninth Circuit will rule, and that will determine the next stage of litigation about how the rule is imposed.

Another state secrets case in the pipeline is that of Maher Arar, another detainee who experienced extraordinary rendition—he was flown to Syria, and tortured there. The Canadian govt has apologized to him and paid him $10 million in damages. The U.S. govt (the Bush administration) founght his civil suit in court. The full 2nd Circuit reheard Arar's case in December. The new administration could tell the court that it doesn't have to make a ruling, because the government is going to settle with Arar. And as part of the settlement, the government could agree to disclose some of the evidence covered by the invocation of the state secrets privilege.

Then there is Holder's review of all 39 of the Bush uses of the privilege. It will be really interesting to see which cases the new administration changes course on, and which, like Jeppesen, it doesn't.

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Washington, D.C.: I was gravely disappointed by the John Roberts appointment as Chief Justice. Can President Obama nominate someone as chief justice, as opposed to an associate judge? Can the position be taken away?

Dahlia Lithwick: Washington. My question back to you would be: why does it matter who the chief is? He only gets one vote after all! His powers are wholly administrative. And whatever your views on Roberts, you would, I think, have to say he's been incredibly fair about assigning opinions and running conference (powers abused by Warren Burger in his time). Being chief has more to do with being fair and organized than ideology and Roberts is both.

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Alexandria, Va.: I think the problem with investigating outgoing administrations is that it will start a trend...with each incoming administration (of a different party) investigating the previous one. Good grief...if we didn't prosecute Nixon for his crimes because of the good of the country (pardon notwithstanding, I don't think he would have been prosecuted) then I think we should just leave the Bush administration to the history books and get on good governance by the Obama administration.

Emily Bazelon: Your argument has merit. Expending a lot of energy on investigating the past makes a lot of people nervous—including President Obama and AG Holder. There's some complexity here, however. The administration clearly has decided not to launch full-bore criminal investigations. But does that mean that it also refuses to disclose information that might lead to such investigations, simply to prevent them? There are ongoing lawsuits that raise these questions; Congress is also asking them, most recently via Sen. Leahy's call for a truth commission. My point is that even if you don't want a big and messy investigation, you might want to think about whether drawing a veil over the whole last eight years is also a mistake.

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New York: What do you think is the legal future for gay rights during the Obama administration?

Emily Bazelon: I think much of the next stage of gay rights is going to play out without much involvement by the Obama administration. This government is not going to get behind the gay marriage movement. But that doesn't mean the courts or state legislatures won't confront these questions. There was an interesting ruling in the Ninth Cirucuit last week, calling into question the constitutionality of the Defense of Marriage Act. These developments stem from cases brought by gay couples. They are forcing the questions they care about—which is one of the ways change is made.

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