From Roger Fitch and our friends down under.3.23.22

 Bad news from SCOTUS ... Vaccines, climate and discrimination ... State secrets privilege applied in torture cases ... Partisan courts ... Forum shopping for flexible federal judges ... Political control of the state courts ... From Roger Fitch in Washington 

Bad decisions are flowing from the newly-stacked supreme court: notably, a decision overturning Occupational Health and Safety Administration regulations requiring employers to vaccinate employees. These unexceptional workplace regulations were blocked on grounds not found in the OSHA statute. American Prospect has more.

A case implicating climate change is now on the court's radar, threatening not only the EPA's authority to regulate, but the ability of Congress to delegate regulatory power to executive agencies. There's now a speculative Phantom Docket that reflexively questions administrative expertise. 

While undermining benign health regulations, the court may be contemplating new legal loopholes, e.g, a "homophobia exemption" from anti-discrimination law.

Sadly, the court backed the government in appeals supporting the "state secrets" privilege: CIA torture (Zubaydah's) and FBI surveillance (Muslim).  

An import from English law, the privilege was unknown in US law until 1953, when it was fabricated by the government and accepted by the supreme court. In US v Reynolds, the court found state secrets were an implied extension of executive privilege, another modern invention.

The Reynolds privilege afterwards proved to be falsely-claimed to conceal military negligence, yet the precedent remains, an absolute, unqualified rule of evidence. 

In Zubaydah, the government pleaded "state secrets" to block testimony by the psychologists James Mitchell and Bruce Jessen, in the Poles' investigation of the CIA facility in their country. The men were employed by the CIA to devise the torture program used against Zubaydah.

The CIA's Polish torture camp is no secret, and was described in the Senate Torture Report.  

Justices Sotomayor and Gorsuch vigorously dissented, with Gorsuch rightly characterising the state secret claim as seeking a judicial "rubber stamp" to avoid "further embarrassment for past misdeeds" of the government. 

Poland has already been forced to pay Zubaydah damages for collusion in his CIA detention and torture,  (so has Lithuania) and it's now following up with an investigation ordered by the European Court of Human Rights. The US signed the Hague Evidence Convention requiring cooperation.

President Obama also zealously pursued state secrets claims, even - to the surprise of many, including federal judges and the Times - those of George Bush. Curiously, the one legal proceeding where Obama did not plead state secrets was the one the ACLU brought against the very same psychologists whose evidence is sought by Zubaydah for the Polish inquiry.  

Absent a state secrets defence, the ACLU case proceeded to trial and was settled by Mitchell and Jessen, who had CIA indemnities. It's the only litigation where the CIA was forced to pay damages (indirectly) to victims.

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