Victor Hansen

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May 28, 2007

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Bill

I want to thank Bobby for the opportunity to participate in this conversation. I believe that Bobby, myself, Ben, Jeremy and Amanda agree on much. Most of the disagreement between Bobby and the rest revolves around what amount of judicial investigation is proper, the competence of judges to estimate damage to national security, and when in the litigation process dismissal is required.

I like Bobby's proposal concerning HPSCI and SSCI. I'm all for anything that would get Congress involved. There would be substantial obstacles to the creation of such a process, but it might introduce the kind of doubt necessary for the executive branch to weigh matters carefully. Of course, the members would relegate such tasks to committee staff for recommendation on how they should vote. The process would be politicized, but the super-majority requirement would alleviate that problem.

Whichever way the Hepting case goes in the 9th Circuit there is a good chance that it will be taken up by the U.S. Supreme Court. My belief (to my sorrow) is that the plaintiffs would lose at the SC and that the Court may very well expand the holding in Tenet v. Doe beyond contractual relationships and limit trial court probing in cases where the privielge is raised.

Jeremy Telman

I too would like to thank Bobby for hosting this very interesting exchange. One area where I would probably differ from Bill and Amanda is that I am very pessimistic about a congressional solution to the problems posed by the SSP. I don't have great faith that Congress will act to rein in the privilege, and, even if it did, I don't trust Congress to value legal coherence over partisan convenience.

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