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."