The Courts get Two out of Three Right

But that still only adds up to 50%. While judges wisely issued a stay on DADT and dropped a stay on stem cell funding, they still fell down on the big decision: the appeals court ruling to allow the state secrets defense to utterly trump the right to bring suit against the government.

Why is this such a big deal? Andrew Sullivan:

The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

And this leviathan moves on, its budget never declining, its reach never lessening, its power now emboldened by the knowledge that this republic will never check it, never inspect it, never hold its miscreants responsible for anything, unless they are wretched scapegoats merely following orders from the unassailable above them.

And this means almost certainly that torture will return. The GOP base loves it, as long as it is done against people with dark skin and funny names in places they can look away from. And they know now something they didn't know in 2008. They will always get away with it. Even a liberal Democrat will protect you for ever with a golden shield that creates two classes of people in this country: one above the law - even a law as profound as that against torture - and those outside the government obliged to obey it.

This knowledge tells me one thing. If we are to recover as a nation under law rather under a prince, it will not be through the channels of the two major parties or through any president acceptable to the mainstream of either party. It will require a citizenry so enraged and protective of its core liberties against this security Leviathan that it compels dismantling this machinery and exposing it to the light of day - not recklessly, not abruptly, but by close examination, judicial review, press inquiry, protest. There are legitimate trade-offs between national security and liberty. But the protection of war criminals where no secrets are at stake except the scandal of torture itself is not one of them. Alas, there are few such citizens around. And, most tragic of all, those who say they care about liberty above all - the tea-partiers who invoke the founders - seem only too willing to surrender every liberty for the prize of a security against a threat we cannot even measure, and to bow down before a new king (and probably warrior-queen) rather than elect a new president.