Wednesday, October 27, 2010

When Even the Execution Isn't the Worst of It

The federal government has a legitimate and overriding interest in protecting national security.  It's right there in the Preamble to the Constitution (that part about "provid[ing] for the common defence").  And it's clearly implicit in the provisions giving Congress the power to declare war, raise an army, provide a navy, oversee the militia (and the army and navy), and making the President Commander and Chief of the Army and Navy and (when it's called into national service) the Militia.  Elsewhere, too, but you get the point.
So when you sue the government and responding to the lawsuit would necessitate the government revealing military secrets and thereby endangering national security, the government gets to claim the State Secrets Privilege and, if the court buys it, the information gets to stay secret, and the case is either dismissed or goes forward but without the information being revealed.  (That's an oversimplification, but it's close enough for where I'm going with this.)
The idea of the privilege makes perfect sense.  So does reigning it in, which is what the Supreme Court tried to do in 1953 in US v Reynolds.
A military plane crashed in Georgia.  Three civilians on the plane were killed, and their widows sued the government.  When they asked the government to turn over its accident investigation report and the statements of surviving crew members, the government objected, eventually asserting that this was a top secret mission and they couldn't reveal this stuff without giving away military secrets.  Ultimately, the Supreme Court agreed.  (I'm omitting footnotes and the beginning of the first quoted paragraph and end of the last.)
Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.
Of course, even with this information before him, the trial judge was in no position to decide that the report was privileged until there had been a formal claim of privilege. Thus it was entirely proper to rule initially that petitioner had shown probable cause for discovery of the documents. Thereafter, when the formal claim of privilege was filed by the Secretary of the Air Force, under circumstances indicating a reasonable possibility that military secrets were involved, there was certainly a sufficient showing of privilege to cut off further demand for the documents on the showing of necessity for its compulsion that had then been made.
In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. 
There's no clear standard in that, just a balancing test that starts with the assumption that the government is playing fair and telling the truth.  It turns out that in Reynolds it wasn't.  The accident report was eventually declassified and examined in 2004.  No military secrets at all.  But it did show that the plane was in terrible shape, which would have been embarrassing and would likely have ensured that the government would have lost the case.*
Over the next few decades, the privilege was occasionally invoked.  It's been raised far more often in this century than the last.  The Bush administration (that's the Shrub version, not Pappy's) raised it almost routinely, and Obama decried that in his campaign for President.  Transparency, he called for.
Ah, but as Mario Cuomo said,
You campaign in poetry but govern in prose.
Prose, in this case, means invoking the doctrine.
All of that is a backdrop for what's happened in Arizona.

Jeffrey Landrigan was due to be executed.  Except, you know, Hospira had no thiopental for Arizona.  That's a problem not unique to the Grand Canyon State, of course.  As I've discussed before, it's a problem (or soon to be one) in all the killing states.  But somehow, the folks in Arizona got hold of some.  It's not clear just where, some foreign source, but the particular thiopental was not FDA approved.
So Landrigan asked the Arizona Supremes to make the state tell him about that thiopental.  The court, without explanation, said no.  So Landrigan sued in federal court.  Tell me about the drugs, he said, so I can tell that they won't violate the 8th Amendment.  Here's the 9th Circuit's summary of the relevant law. 
In Baze v. Rees, 553 U.S. 35 (2008), the Court considered an Eighth Amendment challenge to Kentucky’s lethal injunction protocol. Upholding Kentucky’s protocol, the three justice plurality articulated a standard that requires the inmate to establish a “substantial risk of serious harm.” Id. at 52. The plurality instructed that “[a] stay of execution may not be granted . . . unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain.” Id. at 61. A risk that procedures will not be properly followed can qualify as cruel and unusual punishment, but to establish a violation of the Eighth Amendment, “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 50 (quoting and adding emphasis to Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)).
The problem is that while FDA approved thiopental might not generate that risk, who knows about the thiopental manufactured with a Gilbert Chemistry Set in some kid's basement in Transyvania.  (And yes, I apologize to all the Transylvanians out there.  I had to pick someplace to round out the sentence.) 
Anyway, Landrigan sued in federal court and the district judge told Arizona either to tell him what he needed to know about the thiopental or to explain why it wouldn't or why the information was irrelevant.  Arizona's response:  None of the above.
So the judge tried again.  Again Arizona refused, citing a statute it said prohibited disclosure.  It wouldn't exactly explain why, though presumably the reasons are like those proffered by the Lone Star State.  You know.
State security.  If we told you where we got it or how we got it or which international company made it of whether it comes in at Galveston Bay or DFW airport, the terrorists would win.
Anyway, here's the 9th Circuit again explaining Arizona's response to the district court.
[T]he state represented that its sodium thiopental is in 500 mg vials with an expiration date of May 2014. It also represented that “the process of shipping and receiving the chemicals was cleared and approved by U.S. Customs and FDA officials.” Beyond this, the state maintained that the court’s October 23 order improperly engrafted a requirement that the state use FDA approved drugs, and failed to address protections that are in place to ensure that an inmate is unconscious following administration of sodium thiopental. The state also adhered to its position that Ariz. Rev. Stat. § 13-757(C) preserves confidentiality of entities involved in functions ancillary to the execution process.
Alternatively, the state requested permission to file the information required to be disclosed under seal instead of publicly, as the October 23 order directed. It moved to file under seal and for a protective order, which Landrigan opposed.

On October 25, the district court denied the state’s request to file under seal and granted a temporary injunction restraining the state from carrying out Landrigan’s death sentence until further order of the court.

The court also ordered the state to disclose to Landrigan the documents provided to the court. The court reasoned that in the unique circumstances of this case, the state’s refusal to provide discovery, that is, to provide information to Landrigan about the source and efficacy of its drug, effectively deprived him of the opportunity to try to carry his burden of proving entitlement to injunctive relief.
So without any evidence that Landrigan was wrong when he said that using the secret thiopental would violate the 8th Amendment, the judge had no basis to dismiss his case.  And the judge issued a stay.  He wrote:
This Court has never experienced a situation such as this where a defendant opposes a motion for emergency relief by claiming it has the evidence necessary for resolution of the matter but that evidence should not be produced.
Clearly, the court hadn't been dealing the State Secrets Privilege.  (Which, you'll recall, is where I started.)  Even though, you know, he's a judge in the state that claims to be overrun by undocumented immigrants who need to be locked up because, as John McCain explained to Bill O'Reilly
[D]rivers of cars with illegals in it that are intentionally causing accidents on the freeway. Look, our border is not secured. Our citizens are not safe.
You know, the state where the governor falsely claimed that those same undocumented immigrants (OK, maybe not the same individuals, but you know what I mean) were littering the Arizona desert with decapitated bodies.
So the judge granted a stay and the state appealed and the 9th Circuit affirmed.
Although the state provided some information for in camera review by the district court, it did not ask this court to file those materials under seal, or otherwise. See Circuit Rule 27-13; Fed. R. App. P. 10(b)(2). Nor has the state offered any indication of what those materials might be or how they might inform a decision about whether the drug would function as intended. Because we do not know what was before the district court due to the state’s failure to provide the materials, we cannot say the district court abused its discretion in granting a temporary stay.
Essentially, they made the same point as the district court. 
The state claims to have evidence sufficient to show there's no problem, but it won't let us know what it is.  Trust us isn't good enough.  
Which seems a proper application of the law.  And a generally fair claim.  Except that SCOTUS disagreed.  5-4, of course.  You know the lineup.
Here's the complete text of the unsigned order they issued last night.
The application to vacate the order by the district court granting a temporary restraining order, presented to Justice Kennedy and by him referred to the Court, is granted. There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. See Order Granting Motion for a Temporary Restraining Order in Landrigan v. Brewer, No. CV–10–02246–PHX–ROS (D Ariz.), Doc. 21, p. 15 (“[T]he Court is left to speculate. . .whether the non-FDA approved drug will cause pain and suffering.”). But speculation cannot substitute for evidence that the use of the drug is “‘sure or very likely to cause serious illness and needless suffering.’” Baze v. Rees, 553 U. S. 35, 50 (2008)
(quoting Helling v. McKinney, 509 U. S. 25, 33 (1993)). There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect. The motion to file documents under seal is denied as moot.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application to vacate the order granting a temporary restraining order.
It's turning the process on its ear.  The burden is on Landrigan.  There's an order from a court saying that the state must provide Landrigan with the information that will allow him to go forward (or to dismiss his case as meritless).  The state refuses to comply.  Therefore the state wins.
It turns a privilege invented for national security into an invitation to all governments simply to defy court orders.
Jeffrey Landrigan was murdered by the state of Arizona late last night.  I'm an abolitionist, so I think that was wrong, regardless, and for many reasons.
But what the Supreme Court did last night was far worse.  Arizona killed a man.  SCOTUS perverted the rule of law.
*Reynolds specifically said that the privilege was inapplicable to criminal cases where its use would be "unconscionable."
The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.
Ah, for the good old days when the courts still thought that way and we didn't authorize secret trials (and even semi-public ones) based on secret evidence while spouting mantras of freedom and liberty and patriotism and how we have to give up our rights to protect ourselves against those who hate us for our rights.  But that's another post (which is why this is a footnote).


  1. i agree with you once the govt violated the law to continue this became MURDER and if he has family and friends they have every legal right to remove these CRIMINALS ANYWAY THEY CAN with WHATEVER VIOLENCE IS NEEDED.

  2. I think you hit the most important aspect regarding the shifting of the burden to the condemned here to attempt to prove something without information which the state is withholding. I have deep concerns that this leaves states the ability to begin using new and mysterious cocktails without the ability to test those procedures in court, especially while there is a shortage of the "approved" drug. It's Russell's Teapot and a logical fallacy. Not to mention, that before full discovery, everything is speculation under this standard.

  3. Good observation Mr. Gamso.

    As you may know I support the death penalty and oppose the quasi-legal system used to railroad the condemned. This instance is an example of government at its worst, and should serve as an example of a supreme court gone bad.