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Obama Punts His First State Secrets Case
Surprising even a judge at the U.S. Court of Appeals for the Ninth Circuit, a lawyer for the Obama administration embraced the Bush administration's position in the first state secrets case since Obama took power. The case involves five accused terrorist detainees who are attempting to sue a subsidiary of Boeing for arranging flights to accommodate the Bush administration's "extraordinary rendition" program, which flew them off to be tortured by other governments.
Though it's now well-known that the practice went on and the details even of these particular cases have been well-documented, just as it did in the horrifying case of Khalen Masri the Bush administration invoked states secrets privilege to prevent the suit from coming to trial. State secrets is a judge-made law (based entirely on a lie, by the way) allowing the executive branch to exclude evidence in a case merely by stating it would be contrary to the interests of national security to allow the evidence to be admitted. Bush administration officials claimed judges are obligated to show the president "utmost deference" on state secrets claims, provoking a federal judge in a domestic spying/wiretapping case to ask if that means "the king can do no wrong," and that judges are supposed to "bow" before the president in such claims.
According to the Reporters Committee for Freedom of the Press, the state secrets privilege was invoked about 55 times from 1954 to 2001. In the first four years after the Sept. 11, 2001 attacks, the Bush administration invoked it 23 times.
Obama has promised to review Bush's invocation of state secrets privilege, including voicing his support for a reform bill working its way through Congress. But the case this week was his first opportunity to do something about it. He didn't. From the New York Times:
In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration's "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations...
Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
"Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
"No, your honor," Mr. Letter replied.
Judge Schroeder asked, "The change in administration has no bearing?"
Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said."
Lefty blogger hilzoy quotes from the ACLU brief that details Mohamed's account of what happened to him:
Early on the morning of July 22, 2002, a Gulfstream V aircraft, then registered with the FAA as N379P, flew Mohamed to Rabat, Morocco where he was interrogated and tortured for 18 months. In Morocco his interrogators routinely beat him, sometimes to the point of losing consciousness, and he suffered multiple broken bones. During one incident, Mohamed was cut 20 to 30 times on his genitals. On another occasion, a hot stinging liquid was poured into open wounds on his penis as he was being cut. He was frequently threatened with rape, electrocution and death. He was forced to listen to loud music day and night, placed in a room with open sewage for a month at a time and drugged repeatedly.
But let's not lose too much sleep over Mohamed. He's probably one of those "worst of the worst" we're always hearing about, right?
Mohamed's lawyers say he was turned over to the CIA and shipped to Guantanamo after admitting to Pakistani officials, while being tortured, that he had visited an Internet article with instructions on "how to build an H-bomb." Except the article was satire. It was written by three people, including labor advocate and food writer Barbara Ehrenreich. You can read it here (if you dare).
The U.S. has denied the evidence against Mohamed was obtained by torture, but the BBC is reporting today that U.S. officials have actually threatened to stop sharing information with British intelligence about terror threats to the U.K. if Britain allows the details of Mohamed's alleged torture to be made public. The Independent reported last month that Mohamed was soon to be released from Guantanamo Bay, but that report seems to be based on what Mohamed told his lawyers. He's still in Guantanamo now, though all of the terrorism charges against him have been dropped.
To their credit, many Obama supporters are livid. Glenn Grenwald writes that Obama has failed his first major civil liberties test "resoundingly and disgracefully." Andrew Sullivan writes that, "with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them." Hilzoy implores Obama, "you screwed this one up in a major, major way. Stop it. Stop it now."
VM|2.11.09 @ 10:59AM|#
dammit.
what a huge fucking disappointment.
kinda makes the "no torture" executive order moot.
c'mon, Obama - you're killing me here. you're supposed to be
undoing the kromplfux of the last administration. not punting or
any some such.
dammit. how. fucking. disappointing.
|2.11.09 @ 11:07AM|#
It's really not surprising. This is why I am astonished at people who were optimistic that things would change. Remember, the government cannot admit to wrongdoing (as an entity) because that opens it up to lawsuits and reduction of power. Even if Obama truly wanted to change this, the pressure from the intelligence community, government lawyers, and other politicians would be tremendous to not do so.
|2.11.09 @ 11:09AM|#
This is why the "no torture" executive order is pointless. Not
only is the treatment in Supermax prisons (both civilian, like ADX
Florence, and military, like Fort Leavenworth) torture (and IMO
worse than waterboarding because
there's more evidence of permanent psychological damage from
Supermax treatment), but rendition is simply outsourcing
"torture that Americans won't do." And rendition is going to
continue, according to new CIA chief Leon Panetta, just presumably
more "timely, targeted, and temporary."
The camp in Guantanamo Bay is open to journalists, far more open
than Fort Leavenworth, ADX Florence, or any of the foreign prisons.
Waterboarding, the worst thing done at Guantanamo (and not to all
the prisoners) is better than the typical supermax treatment or
Moroccan or Egyptian treatment. Yes, most in the supermax prisons
have actually been convicted, but that doesn't make a difference to
torture, does it?
It's all just for show. I've never been in favor of closing
Guantanamo because all the proposed alternatives seemed at least as
bad or worse to me.
The one thing you could say is that less wars means less prisoners,
though the President has promised to step it up in Afghanistan.
VM|2.11.09 @ 11:10AM|#
epi- was hoping that he'd take that one for the team...
well, you may be right, but it's still a disappointment.
*looks for Mr. Steven crane Blow Up doll to beat*
spambot|2.11.09 @ 11:10AM|#
Did you hear about them raising troop levels in Afganistan by
30k? That is doubling the number there. The Surge was just over 20k
troops. None story on the news by comparison.
Main diff between Obama and Bush seems to be a (D) instead of an
(R), and sadly to most fools that is all it takes to make him the
good guy.
So much for antiwar candidate Obama.
|2.11.09 @ 11:11AM|#
I feel for all of those true believers out there, but I hope
this stream of bad news helps them dump the idea that faith-based
politics is in any way valid. Skepticism is best, because it keeps
us on guard.
It takes a tremendous level of courage and principle for a
president to give up presidential prerogatives in the face of
intelligence claims that to do so will get us another Pearl Harbor
or 9/11. We haven't had anyone like that in a long while. And we
most definitely don't have that now.
VM|2.11.09 @ 11:13AM|#
skeptical and hope for the courage you cite, ProGLib.
and a pony. with rich, savory bar-b-que sauce.
pony.
Jonas|2.11.09 @ 11:14AM|#
I'm actually a little surprised that Andrew Sullivan managed to
eek out a minor criticism of Obama over this. What courage he has,
speaking truth to power!
Sarah Palin's Down baby was *clearly* worth more outrage than
Barack Obama's complicity in the Bush-Cheney torture regimen.
tekende|2.11.09 @ 11:14AM|#
Are you believing in the change yet?
I am believing in this change SO HARD.
|2.11.09 @ 11:17AM|#
Obama has promised to review Bush's invocation of state
secrets privilege,
Reviewed, and approved.
For our Parsin' President, this counts as a promise kept.
Bundle this up with Panetta's statement that as CIA director he
will continue rendition so long as the receiving country gives
assurances that the prisoner won't be tortured, and this is one
aspect of the Bush security regime that leftists hate, and that
Obama campaigned against, that won't be changed at all.
I've never been in favor of closing Guantanamo because all the
proposed alternatives seemed at least as bad or worse to
me.
I'm still waiting to hear one that is better. Throw in that Obama
suspended the SCOTUS approved due process being meted out in
Guantanamo, and this early date, I would say he has moved backward,
not forward, on that front.
VM|2.11.09 @ 11:18AM|#
fair enough, epi!
plus - isn't this obama ruling a slap against his "do it in
america" job creation government expansion
scheme?
so, he's busted his "no outsourcing" pledge, too.
the obamanauts must be going apeshit now!
BakedPenguin|2.11.09 @ 11:22AM|#
spambot - the Taliban attacked us, or at least gave a great deal
of aid to those who did. We have a lot more reason to be there than
Iraq. Of course, if we would stop with our insane policy of
destroying Afghani farmer's crops, those troops would probably be
unecessary.
You have to give Obama credit - he must have set a record for
"fastest breaking of campaign promises" ever.
And since Xeones isn't here, I'll say it: yo, Fuck Obama.
bonsomme|2.11.09 @ 11:23AM|#
The real change is going to kick in soon, I'm sure of it, it's just got to.
|2.11.09 @ 11:23AM|#
You just don't understand. There's a PLAN; it's very
complicated, and there's no time to explain it to you.
Now, lie back, and try to relax.
|2.11.09 @ 11:28AM|#
You know, if there were one thing that I could get Americans to adopt--just one thing--it would be to distrust the government. Which was once a core American value. That alone would get us back on course, I think.
|2.11.09 @ 11:28AM|#
It's all about political capital, which must be conserved for important stuff, like making federal office buildings more comfortable, don'cha know.
Reinmoose|2.11.09 @ 11:30AM|#
I haven't so much as mildly discussed anything Obama has done since Jan 20th with any of my friends who supported him. I don't think I have the control to hold my tongue, and even if I can, I don't want to give them the opportunity to incite me to speak.
Xeones|2.11.09 @ 11:36AM|#
Jeez, BP, have a little faith. A dude has to work
sometime.
Also, fuck Obama.
|2.11.09 @ 11:38AM|#
It's all about political capital, which must be conserved
for important stuff, like making federal office buildings more
comfortable, don'cha know.
Na, this and support for the drug war are important to keep them in
power so they can raise marginal tax rates, which is The Most Moral
Thing Govt Can Do. Right, joe?
VM|2.11.09 @ 11:38AM|#
this is worse than pulling yer thumb out of yer ass and, instead
of finding the pomegranate you were playing with fell
on, you find a really, really old shoe from last week that you
forgot about.
sure, you should have known better, and that shoe on the end of yer
thumb is a lesson you won't soon forget.
|2.11.09 @ 11:41AM|#
I opined on these very pages that I thought Obama would be
better on transparency and civil rights than the alternative. I
also said I had doubts that he would just surrender executive
prerogatives asserted by the Bush administration.
Continued medical reefer raids (Too busy to pick up the phone, Mr.
President?) and now invoking the state secrets lie indicates I was
mistakenly optimistic on the former and cynically correct on the
latter.
.500 is hell of a B.A. but it really sucks for political
prognostication. I'm certain others will be by to admit their
Obamistakes.
¢|2.11.09 @ 11:41AM|#
To their credit, many Obama supporters are livid.
What's this "credit" for? Their continued support? Because it
continues.
Also, livid means red. So, hey, you made a funny.
Barrack Obama|2.11.09 @ 11:42AM|#
you think you're gonna to live your life alone in darkness and
seclusion yeah I know you've been out there tried to mix with those
animals and it just left you full of humiliated confusion
so you stagger back home and wait for nothing but the solitary
refinement of your room spits you back out onto the street and now
you're desperate and in need of human contact and then you meet me
and you whole world changes
because everything I say is everything you've ever wanted to hear
so you drop all your defenses and you drop all your fears
and you trust me completely I'm perfect in every way cause I make
you feel so strong and so powerful inside you feel so lucky but
your ego obscures reality and you never bother to wonder why things
are going so well
you wanna know why?
cause I'm a liar
yeah I'm a liar
I'll tear your mind out
I'll burn your soul
I'll turn you into me
I'll turn you into me
cause I'm a liar, a liar
a liar, a liar
I'll hide behind a smile and understanding eyesand I'll tell you
things that you already know so you can say I really identify with
you, so much and all the time that you're needing me
is just the time that I'm bleeding you don't you get it yet?
I'll come to you like an affliction and I'll leave you like an
addiction you'll never forget me
you wanna know why?
cause I'm a liar
yeah I'm a liar
I'll rip your mind out
I'll burn your soul
I'll turn you into me
I'll turn you into me
cause I'm a liar, a liar
liar, liar, liar, liar
I don't know why I feel the need to lie and cause you so much pain
maybe it's something inside maybe it's something I can't explain
cause all I do is mess you up and lie to you I'm a liar
oh, I am a liar if you'll give me one more chance I swear that I
will never lie to you again because now I see the destructive power
of a lie they're stronger than truth I can't believe I ever hurt
you I swear I will never to you lie again, please just give me one
more chance I will never lie to you again I swear
that I will never tell a lie I will never tell a lie
no, no
ha ha ha ha ha hah haa haa haa haaa
sucker
sucker!
oh, sucker
I am a liar
yeah, I am a liar
yeah I like it
I feel good
ohh I am a liar
yeah
I lie
I lie
I lie
oh, I lie
oh I lie
I lie
yeah
ohhh I'm a liar
I lie
yeah
I like it
I feel good
I'll lie again
and again
I'll lie again and again
and I'll keep lying
I promise
VM|2.11.09 @ 11:46AM|#
ROLLINS!!!!!!!
however, this situation is more like:
MacArthur Park
with a RickRoll.
and it doesn't have anything to do with the "too cool for the room
oh, just don't trust government, man" crowd, rather, it is a
heartfelt belief that torture is wrong, and it's upsetting that
we're still doing it.
that's why this sucks donkey doo doo.
fuck. and it's too foggy to see the lake today.
Jim Gannon|2.11.09 @ 11:49AM|#
Radley,
Your posts usually ruin my day (but please keep up the good work),
but learning that the "State secrets is a judge-made law [that is]
based entirely on a lie" might ruin my entire week. Everyone should
read the Cato report that Radley links to:
http://www.cato.org/pub_display.php?pub_id=3145
(if you dare).
Yours less blissfully ignorant,
Jim
|2.11.09 @ 12:05PM|#
Jim,
I read it. Typical of the government--any government. They did
something wrong, completely unrelated to national security, then
hid behind claims of national security to avoid admitting
responsibility.
Listen people! "National security", as often as not, means "keeping
the government out of trouble" not protecting America from evil
dudes. There. . .is. . .no. . .national. . .security. . .exception.
. .to. . .the. . .Constitution. The courts should tell any
administration that tries this crap to pound sand.
|2.11.09 @ 12:23PM|#
fuck. and it's too foggy to see the lake today.
It was foggy this morning in Motown as well. Being one of the urban
undead, I like the fog.
|2.11.09 @ 12:36PM|#
Also today, solicitor general nominee Elena Kagen
agreed that enemy combatants could be held indefinitely according
to the rules of military justice.
So we'll be closing Guantanamo (in year, in the meantime all trials
will be suspended) but we'll still be holding the prisoners. A
Change of Venue you can believe in.
Fred|2.11.09 @ 2:14PM|#
Hah! Where's that shill joe at now? Where is he telling us that
we're taking this wrong way?
How can you give Obama supporters "credit" for anything? I give
them "credit" for being naive, hero-worshipping ideologues. I
relish the opportunity to watch their hopes crushed and be reborn
into becoming enemies of the state.
DannyK|2.11.09 @ 2:39PM|#
This sucks.
At least we get to find out now who's actually pro-liberty and who
was just anti-Bush.
|2.11.09 @ 2:47PM|#
... and the bulls beat the pistons...
(can't stand the bulls)
The Pisons are not going to go anywhere in the playoffs this year.
They won't get past the second round. After six (seven?)
consecutive conference finals appearances, the Pistons are
rebuilding. Allen Iverson won't be around next year, Joe Dumars
will have money under the cap to spend, and the Pistons will again
be contenders for another title.
Was that off topic?
|2.11.09 @ 3:51PM|#
this is worse than pulling yer thumb out of yer ass and, instead of finding the pomegranate you were playing with fell on, you find a really, really old shoe from last week that you forgot about.
sure, you should have known better, and that shoe on the end of yer thumb is a lesson you won't soon forget.
And VM wins the thread.
johnl|2.11.09 @ 6:06PM|#
Anyone remember the good old days when the bad guys ran torture camps and the USA was against that? Really it was once completely uncontroversial that torture was unamerican.
D.R.M.|2.11.09 @ 10:19PM|#
Anyone remember the good old days when the bad guys ran
torture camps and the USA was against that?
Oh, yeah. Back in the good old days of the Clinton Administration,
when we simply handed people over to foreigners and let them
torture 'em instead.
You did note the ACLU brief mentions that torture of Mohamed
happened in Morocco, less severe abuses happened in a
U.S.-administered camp in Afghanistan, and no abuses beyond mere
detention were mentioned as happening in Guantánamo?
Obama, of course, has decided to shut down Guantánamo, but keep
doing rendition. Moral outrage thus has moved us onto a policy
course that will guard people from being indefinitely detained in
Cuba while still sending them out to other countries to have their
genitals sliced open.
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