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."

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  1. Say it ain’t so, joe!

  2. Meet the new boss…

  3. Damn, Tulpa. Beat me to it.

  4. 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.

  5. Damn, Warren. Beat me to it.

  6. 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.

  7. 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.

  8. 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*

  9. 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.

  10. 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.

  11. skeptical and hope for the courage you cite, ProGLib.

    and a pony. with rich, savory bar-b-que sauce.


  12. 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.

  13. Are you believing in the change yet?

    I am believing in this change SO HARD.

  14. VM, I’m cynical for a reason: because I’m almost always right in my cynicism.

  15. 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.

  16. 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!

  17. 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.

  18. The real change is going to kick in soon, I’m sure of it, it’s just got to.

  19. 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.

  20. 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.

  21. It’s all about political capital, which must be conserved for important stuff, like making federal office buildings more comfortable, don’cha know.

  22. 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.

  23. Jeez, BP, have a little faith. A dude has to work sometime.

    Also, fuck Obama.

  24. 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?

  25. 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.

  26. And joe for the defense in three… two… one…

  27. 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.

  28. 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.

  29. 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
    oh, sucker
    I am a liar
    yeah, I am a liar
    yeah I like it
    I feel good
    ohh I am a liar
    I lie
    I lie
    I lie
    oh, I lie
    oh I lie
    I lie
    ohhh I’m a liar
    I lie
    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

  30. I am shocked. SHOCKED!

    Ok, not that shocked.

  31. 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.

  32. 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:
    (if you dare).

    Yours less blissfully ignorant,

  33. But.. but… but… he’s Our First Black President!

  34. 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.

  35. ProGLib: QFMFT!


  36. 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.

  37. Motown. Shit. I didn’t know. Sorry, J sub.

  38. 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.

  39. … and the bulls beat the pistons…
    (can’t stand the bulls)

  40. …joe?

    Seriously though, if you’re surprised you’re an idiot.

  41. Cock-slicing you can believe in!

  42. 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.

  43. This sucks.
    At least we get to find out now who’s actually pro-liberty and who was just anti-Bush.

  44. … 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?

  45. I fear that anti-Bush beats pro-liberty 100-to-1.

  46. Excellent post, Radley.

    Also: Fuck.

  47. 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.

  48. 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.

  49. 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 Guant?namo?

    Obama, of course, has decided to shut down Guant?namo, 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.

  50. McCain would have been worse.

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