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From Discovery to Concealment

No Associated Press content was harmed in the writing of this post

All presidents are unpopular with a good part of the electorate, but there seems to be little skepticism towards the office itself. There is plenty of distrust and even outright revulsion towards particular presidents based on, for instance, whether one is more outraged by extramarital sex – by a political opponent, not by an ally – or war crimes. (Ironically, Republicans’ approach with Mark Sanford has been to censure and move on; their refusal to use precisely that remedy with president Clinton was key in launching the first highly visible netroots site.) I am not even referring to the lunacy now coming into full bloom in some quarters. All those examples are about who a particular president is or what he has done. I am referring more to what a president ought to be able to do, which has trended almost exclusively towards greater deference and larger grants of authority in the last few years.

It is possible to argue, as Dana Nelson details in her book Bad For Democracy, that the presidency has been slowly but steadily aggrandizing since 1832 when Andrew Jackson "detoured from his predecessors who viewed the president as a mere executive by expanding his power when a clear mandate was expressed to him from ‘the people.’" The president has increasingly come to be central to American political life and even viewed as the personification of the country. For as troubling as that is, though, we recently seem to also have added the idea that the president can act with impunity as long as it can be rationalized (however fabulously) as in the national interest. Presumably blowjobs are still verboten.

The courts have at times been all too eager to assist in this project, and on Monday the New York Times reported (via) their willingness to do so has unleashed some unintended consequences. The Supreme Court’s Ashcroft v. Iqbal decision in May was a civil rights damages lawsuit against former Attorney General John Ashcroft. Javald Iqbal was swept up along with more than 1,000 other mostly Arabic people in America right after 9/11. He claimed mistreatment and filed suit against Ashcroft on the theory that responsibility goes to the top. The Court ruled that essentially unless Ashcroft was physically present and ordering the abuse he was not liable. In other words, in its eagerness to shield the executive branch from being held responsible for this or any other covert lawbreaking it substantially raised the evidentiary bar for lawsuits. Or as the Times described it, the ruling eviscerated discovery:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath…The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible…In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

The article notes it has already been cited as precedent over 500 times and quotes Stephen Burbank, an authority on civil procedure at the University of Pennsylvania Law School: "This is a blank check for federal judges to get rid of cases they disfavor." It is a clear and substantial act of judicial activism, and yet another example of how the nice-sounding principles of conservatism (see also fiscal probity, sound management and prudent foreign policy) never seem to make it into practice.

The suppression of discovery was a key motive behind last year’s execrable FISA Amendment Act (FAA) as well. Its retroactive immunity provision nullified lawsuits which "had provided some hope that through the process of discovery, the public would at last learn about the extent of the illegal spying program." Discovery means transparency; the telecom companies who pushed the FAA arguably had more to fear from the PR apocalypse that discovery might have produced than an actual jury verdict against them. This week we learned CBS may also feel its sting as well. Discovery promised perhaps the best avenue for getting the details of Bush-era violations of civil liberties and human rights out in the open, and both the legislative and judicial branches have bent over backwards to shield the executive from it. It suggests an outsized understanding of the presidency that considers it superior to the other two branches. The judicial chaos unleashed by Iqbal is just one example of the mess that can be created in defense of that concept, and the latest reason why it truly is bad for democracy.

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