The judge does a very good job in bringing in just about every relevant piece of case law on point, and of explaining the different ways that the privilege applies. I won't go through every bit of it, but I find her scholarship very thorough on the matter. I was curious that she put a Sixth Circuit ruling (Tenenbaum v. Simonini, referenced on page 9 of her opinion) in the middle of everything without pointing out that of all the cases she cites (aside from the USSC cases of course) it is the only one that controls her. (A map of the Circuits can be found here.)

That case seems to put the burden of proof on the plaintiff to prove that the matter is not a state secret once the defendant says "I could defend myself were it not a state secret." However on pages 12 and 13 of the judge's ruling she seems to place the burden of proof on the defendant. I suspect (and I reiterate that I have not seen the rulings) that she severed the state secrets in question from the admission of the President, and did not come to the conclusion that the secrets being kept back could qualify what was already admitted to. (And indeed she seems to say as much on page 14.) If you accept her initial premise about the AUMF being on par with FISA instead of superceding it, her logic isn't bad. (But it still counts as a forfeit rather than a win, hence my choice of title.)

Part 3 is coming soon. Here's a links roundup to keep you busy until then:

As I said in my original post, I think that there are some serious problems with the standing section, but enough standing remains (I was thinking in the attorney-client privilege area) to keep the suit viable. Debbie Schlussel disagrees here. The Washington Post has there own problems with the opinion here. According to S. Cotus in a post here, the Plaintiffs agreed to the stay of injunction. He also links to a post here that says the Sixth Circuit has reversed a similar case. One of the better Constitutional Blawgs has a nice round-up piece on the opinion here (which puts what I am doing to shame) with nice links to differing opinions. Oddly, the Sixth Circuit Blog has had nothing to say on this, I hope they'll post something next week. Kip at A Stitch in Time (perhaps the best libertarian Blawg there is) defends the ruling very strongly in a post here. If you disagree with what I have written you are likely to enjoy his work.