The XX Factor: What women really think.

All the Single Ladies (In the Government)

The reliably wired Marc Ambinder flags National Journal's almost foolishly comprehensive, 366-person omnibus study of the folks working in every nook and cranny of the Obama administration (complete with phone numbers)! I've only carved my way through a third of it, but Marc dishes the important stats... (To read the rest of this post, visit our new website DoubleX.com!)

The Secrets We Keep from Ourselves

The Ninth Circuit Court of Appeals has just rejected President Obama’s claim of a wildly-overbroad “state secrets” privilege in Mohamed v. Jeppesen Dataplan, a suit filed by five victims of the “extraordinary rendition” program against the Boeing subsidiary that flew planes for the rendition program. The district court had dismissed the suit after the Bush administration claimed that everything about the program was a “state secret.” Then-CIA-director Michael Hayden told the court that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” The Obama Administration surprised us in February by continuing to assert the same privilege at the court of appeals.

But today the panel that heard that appeal said “no.” Remanding the case back to the lower court, all three judges agreed that the all-or-nothing “state secrets” doctrine advanced by the Bush and Obama administrations “has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad” and that “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.”

The panel added that it was “the central judgment of the Framers” that “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

By sending this case back to the lower courts, the Ninth Circuit has ensured that these rendition victims can finally have a day in court, and that there can be a judicial reality check on executive branch claims of secrecy. Most importantly, the appeals court reminds us today that the widely-known fact of a U.S. torture program can't be deemed a "state secret" just because the government doesn't want to talk about it.

Fox versus Everybody

Yet more high-powered support for Obama nominees Harold Koh and Dawn Johnsen: Endorsements from Douglas Kmiec, Jonathan Adler, and Glenn Reynolds for Johnsen (both Kmiec and Johnsen have blogged for Slate), and ones from Kenneth Starr and Ted Olson for Koh. In light of this growing split, it will be interesting to see whether John Cornyn continues to take his constitutional cues from these scholars and former government officials, or if he takes them from Glenn Beck.

The Red Cross on Torture

We knew, thanks to Jane Mayer's book The Dark Side, that the International Committee of the Red Cross called the Bush administration's treatment of certain detainees in CIA custody torture. Now we know, from the text of the ICRC's report leaked to writer Mark Danner, about the mountain of specifics behind that label. See here for Danner's shorter New York Times op-ed and here for his longer piece in the New York Review of Books.

The ICRC interviewed 14 high-value detainees in late 2006 at Guantanamo. The Red Cross points out that the "consistency" of their accounts "adds particular weight" to their credibility. Some details also match the stories of former British detainees who described what happened to them after release.

What repeats: a month of standing, arms over the head and shackled, in a frigid room with incessant noise. Little sleep. Face-slapping and head-smashing against walls. Doctors checking for vital signs during water-boarding. The ICRC also picks up on refinements. A towel around the neck of one detainee (Abu Zabaydah) during head-smashing turns into a plastic collar for detainees interrogated later. When Walid ben Attash is forced to stand shackled, the stump of his amputated leg hurts, and he kicks away his prosthesis. Then the pressure on his good leg increases, and he calls his captors to give him back his artificial limb. Afterward, they sometimes take away the prosthesis and then measure the swelling in the leg he has left to stand on.

In Israel in 1999, when a state report came out of the intelligence service's use of cruelly painful stress positions and sleep deprivation on Palestinian detainees, the country's Supreme Court essentially banned torture by forcing the government to plead a necessity defense for any interrogator who used it. Here and now, the Obama administration has forsworn water-boarding and is currently holding the CIA to the standards for interrogation of the U.S. military, which preclude the techniques in the ICRC report. But the government has left open what it will let the CIA do in the future, and at his confirmation hearing, CIA head Leon Panetta signaled that he is open to some harsher techniques, case by case.

Is it better for the executive branch to answer these questions itself, or for a court to step in, as Israel’s did? Does the leak of the ICRC report further the goal of truth-telling for the sake of telling, as Sen. Leahy has been arguing in favor of the truth commission he has proposed for the Senate judiciary committee? Or does knowing what happened mean wanting to know who exactly authorized it, at the highest levels? And then once we know that, how do we thread the president's needle of  “looking forward, not backward” and prosecuting the crimes we have evidence of? The questions are sharpening, not going away.

Hospital Corners

As Jessica just noted, the Obama administration has announced it’s moving to rescind one of the most troubling of President Bush’s “midnight regulations”—a vague and subjective “conscience” rule that allows seemingly everyone with an opinion about abortion and a job connected to health care, the right to make on-the-spot decisions about when and how to do their jobs. We’ve written about this issue here before, both pro and con. But the one thing nobody can claim about the "right of conscience” protected by the new HHS rules was that it afforded any legal clarity to a very rancorous and emotional issue. The Post story today suggests that the move to lift the conscience clause represents “the latest challenge to the Obama administration's attempt to find more of a middle ground on issues related to abortion.” But that strikes me as oversimplification. The decision to craft what an unnamed HHS official characterizes as “a tightly written conscience clause” (er, they already exist ...) isn’t really a capitulation to the abortion lobby. It’s simply a way of saying that health care workers, like everyone else, can’t make up the rules as they go along. Efforts to rewrite fuzzy laws with precision and clarity shouldn't be derided as partisan. Clarity benefits everyone I think.

Will Congress Help the Uighurs?

Another early test for Obama and the Democratic Congress on the war on terror front: The D.C. Circuit just stopped the release of the poor beleagured Uighurs, 17 Guantanamo Bay detainees whom the Bush administration admitted posed no threat but refused to let go. A district court had ruled in favor of releasing the men, saying that the president had no legal basis for detaining them. No threat, no detention—seems right. The problem is that it's not clear where the Uighurs should go. They're from a remote northwestern area of China. They're not fans of the Chinese government, and the government hates them right back. Which means they're at risk of torture if we send them home, according to both the government and their lawyers. That means that our government either has to look for another country to bear the brunt of China's anger by agreeing to take them—a deal that apparently hasn't gone well for Albania, which took five other Uighur detainees three years ago—or release them inside the United States.

Why not repatriate the Uighurs here, if the government has determined they're not dangerous? Today's court decision doesn't argue against doing that. Instead, it's about separation of powers. The D.C. Circuit said that a district court can't order the release of an alien from Gitmo without authorizing legislation from Congress. OK, Congress, are you going to move on this? And will the Obama administration support such a bill?