Editore"s Note
Tilting at Windmills

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February 9, 2009
By: Hilzoy

Dear Obama Administration,

This is just wrong:

"In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

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.

During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantanamo Bay, Cuba. But a government lawyer, 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."

There are so many, many, many things wrong with this. For starters, It's a big, big mistake for any branch of government to have the power to simply declare that whole subjects are out of bounds, without any check on its veracity. We should have learned this from the very first case that established the state secrets privilege: the government said it could not divulge facts central to that case without jeopardizing national security, but when the documents involved were finally declassified, it turned out that it was just covering up for its own mistakes. The Obama administration cannot be expected to have reversed the court decisions on which this power depends in its first few weeks of office. But it can absolutely be expected not to use this power absent truly extraordinary circumstances.

It would be one thing if the state secrets privilege meant only that government officials could not be asked to provide evidence in a case. That would be bad, but not as bad as the state secrets privilege, which (if I understand it) allows the government to argue not simply that it should not be required to testify, but that plaintiffs should not be allowed to try to establish certain sorts of facts on their own, from the public record. When those facts are central to the plaintiffs' case, as they are here, the government can argue that that case should be dismissed. To allow the executive the power to make such claims simply on its own say-so, without any opportunity for anyone to verify them, is just plain wrong. Again, the Obama administration cannot be expected to have made this power go away, but it can absolutely be expected not to use it.

Moreover, I have read the government's filing (warning: link will download a pdf) invoking the state secrets privilege. Like every other Bush administration court filing I have read, it is striking not just for the breadth of the powers it claims for the government, but for the complete absence of any concern for justice. When the government has argued against Guantanamo detainees' petitions, including those of people it has itself found not to be enemy combatants, it always seems to consider only what is convenient for itself, never the fact that keeping people locked up for seven years for no reason is a sufficiently dreadful thing to do that it might be worth a bit of inconvenience to avoid it.

Likewise in this case. Here's what was done to one of the defendants:

"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 surely, someone might say, at least if that someone had spent the last eight years hiding under a rock -- surely a person to whom we did this must be one of the worst of the worst, right? Apparently not:

"A British 'resident' held at Guantanamo Bay was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon, it was revealed last night.

Binyam Mohamed, a former UK asylum seeker, admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.

It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist."

Here's a link to the article, written by famed nuclear physicist Barbara Ehrenreich. It's actually quite funny. Here, for instance, is how to enrich uranium in your own home (with so much less trouble than the Iranians seem to be going to):

"First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream. Repeat this step until you have the required 10 pounds of uranium. (Safety note: Don't put all your enriched uranium hexafluoride in one bucket. Use at least two or three buckets and keep them in separate corners of the room. This will prevent the premature build-up of a critical mass.)"

Now that you've read this paragraph, you too could be identified as a dangerous terrorist, be flown to Morocco, and have people slice open your penis and pour hot stinging liquids into the wounds -- and all at government expense! You won't even have to be beaten, hung by your wrists for a week, and have a gun held to your head -- you can just say you have read it straight away! And when it's all over, the government can argue, as they did today, that any examination of their conduct puts our national security at risk. It's too bad that people we turned loose on you turned your genitalia into shredded wheat, they might say, but hey: we have to set your interests aside in favor of our own. Just like we did before.

So much for justice.

I can easily see why we might not want to disclose which other governments we have asked for assistance, especially assistance that involves taking a scalpel to someone's genitalia. If we asked Morocco for help, Morocco might not take kindly to our turning around and publicizing that fact. And I can see why we might not want to disclose which companies work with the CIA.

But if the government cares about protecting these secrets, it ought to try very hard not to create situations in which disclosing them is the only way to remedy a horrific injustice. It is not OK for the government first to engage in the kind of conduct described above, and then to say that its victims can have no legal recourse, because of national security concerns. And one of the things that's really shocking about the DoJ position is its apparently complete lack of consideration for the rights of the people who were abducted and sent off to be tortured at our behest.

Sometimes, when you do something really appalling, you lose the right to complain that making things right will harm your interests. I think this is one of those times. The Obama administration apparently disagrees.

So, Obama administration: you screwed this one up in a major, major way. Stop it. Stop it now. Work your hearts out to get the State Secrets Protection Act reintroduced in Congress and passed into law. Try to do right by people like the plaintiffs in this case. Don't just say: it would be a problem for us to let people we shipped off to be tortured have their day in court. Try to make it right.

You have it in your power to make me proud of my government again. But this is really, really, really not a very good start.

Hilzoy 11:11 PM Permalink | Trackbacks | Comments (39)

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Comments

I don't know what to make of this story, other than we're getting conflicting reports of Obama's position about an overheard statement by one lawyer for the government. FWIW, here is an update from the ABC Jake Tapper report on the situation.

UPDATE: ABC News’ Jason Ryan reports that Justice Department spokesman Matt Miller said of the case, "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’" Miller said that Attorney General Eric Holder has started a review of all state secret privilege matters. "The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations. It is vital that we protect information that, if released, could jeopardize national security."
"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.

And I kind of doubt that the DOJ of Holder has really had time to review a seven year, reportedly extensive program with the Bush renditions. And also that they could hardly just waltz into court and say they were dropping the state secret claim out of hand, without a thorough review of what other classified info might be involved. And also that it would run completely counter to what Obama has been saying about torture and about being open. We shall see.

Posted by: Stuck on February 9, 2009 at 11:47 PM | PERMALINK

I'm surprised that you are surprised that an administration would follow the previous administration. This is a requirement of our system. Yes, we hate the previous decisions. Does this hate give us liberty to start over?

Posted by: tomj on February 9, 2009 at 11:56 PM | PERMALINK

confiscate their weapons
take them to their cells
keep them barely living
in their own private hells

take them to the border
nudge them with your gun
shoot above their heads
till they begin to run

lead them to the chambers
once their herded round
listen to the screaming
and now there is no sound

wasn't that you at auschwitz
or a thousand other deaths
one man kills another
before they've ever met

Posted by: estebanfolsom on February 10, 2009 at 12:11 AM | PERMALINK

It's also a very, very bad start because it will make the hardcore righties dance with each other in transports of glee: not because they think they might come to like this Obama character, but because it will sicken his supporters, and therefore be easier to dump him in the next election and get some fresh-faced 'Publican in the big chair. Maybe even Sarah Palin - I know it sounds incredible, but if they started working on her now (and they would, if they thought she had a realistic shot) they could whip her into some sort of half-decent political shape in nearly 4 years. The rapidity of her implosion came largely from her never having much time to correct her mistakes, as she was introduced so late. Granted, she didn't show much inclination in that direction, either, but the chance to be president could make her hit the books, I bet. The woman obviously loves power and the spotlight.

If not her, the 'Publicans could find someone just as terrible, because that's all they seem to have. Like Stephen King said once in an old book, I think it was "The Dead Zone" - under the beast-skin, a man....but under the man-skin, a beast. A dumb one, at that.

Posted by: Mark on February 10, 2009 at 12:21 AM | PERMALINK

We don't know where the new administration stands on the SSPA, do we? Specter and Kennedy co-sponsored it, which suggests it could get 51 votes, and while it was withdrawn in the face of a promised Bush perhaps that threat is gone now.

Posted by: Davis X. Machina on February 10, 2009 at 12:25 AM | PERMALINK

I'm sick. I knew Obama was just a Democrat, but I didn't expect his administration to defend the torture regime. That is what this assertion of monarchical power to suspend legal proceedings amounts to.

Posted by: janinsanfran on February 10, 2009 at 12:48 AM | PERMALINK

nice job, estebanfolsom.

Posted by: karen marie on February 10, 2009 at 12:51 AM | PERMALINK


Disclaimer first, I'll probably be stepping on some toes:

It is despicable what happened to those detainees. that the Bush Administration was dead wrong, is not news.

However...

I hope the case gets dismissed because nobody deserves to sue Boeing. Boeing did not do the torturing.

If the 'ambulance' chaser attorney wants justice; go after Bush, Cheney, CIA, and Morocco - where the actual torture occurred.

Do NOT go after a company because of the smell of easy money.

Posted by: bruno on February 10, 2009 at 1:11 AM | PERMALINK

Do NOT go after a company because of the smell of easy money.

How about going after a company without whose cooperation the crime wouldn't have occurred? Is that OK?

Posted by: Tree on February 10, 2009 at 1:32 AM | PERMALINK

Hizoy, first, thanks for being honest and heartfelt here; I was wondering after last week's posts on Obama's executive orders.

===

Stuck, put down the Obamiac Kool-Aid.

===

Bruno, was that Obama's own thinking last summer when he flip-flopped on telco immunity?

Posted by: SocraticGadfly on February 10, 2009 at 1:47 AM | PERMALINK

What evidence is there that any of these things happened to Binyam Mohamed? Is there any physical proof? Any independent medical examination?

It seems that defense did ask for medical examination during trial, but that was denied. On what basis? Is anyone even interested in finding the answer?

Or are we using just his unsupported word? If so, do we now take the unsupported word of an enemy and use that against the US? If so, why?

ALL radical Islamic detainees will claim to have been tortured. Such a claim contains no information.

Posted by: am on February 10, 2009 at 2:37 AM | PERMALINK

Ah Hilzoy...what is so hard to take is that Obama and Holder know all this and DID IT ANYWAY.

There is no justifying or explaining it. We should not accept this or we stand the chance of a government "run" by the executive office again to which we are powerless to change.

Face it ...the set up is there. We all have state IDs or DLs with the identifying/tracking strips on the back. Road blocks are all that is missing to check for citizenship...yes it's that bad...just a matter of time now with Obama refusing to change it or hold anyone accountable for the terror Bush/Cheney created. State's Secret (SS for short). This 'is' our last stand. If it doesn't get changed with Obama then who else??? Who else??

Posted by: bjobotts on February 10, 2009 at 2:44 AM | PERMALINK

***Posted by: Stuck on February 9, 2009 at 11:47 PM |

God I hope you're right. You need to be right.

Posted by: bjobotts on February 10, 2009 at 2:46 AM | PERMALINK

It's nice to have a president who recognizes reality and makes decisions based on it. On the other hand, it sucks to have a reality-based president who continues to do this shit. We live in a depressing country.

Posted by: Shalimar on February 10, 2009 at 2:53 AM | PERMALINK

O.K., an unnamed "source" states to ABC "We wanna be just like FOX!" news that the Obama administration is no different than the Bush administration and we have no other independent source of information to substantiate this claim.

Sophomoric Horsefly dances with glee convinced that this proves his spit flecked rantings are correct. Hilzoy, proving her liberal convictions, caves completely and joins the lunatic choir with a "shame, shame, for being accused by anonymous rumors of something despicable."

My question, was Anthony D. Romero or Ben Wizner in the court room when this "representative from the Justice Department" stated this?

I'm going to guess, no, neither were there.

If that's all you got, Sophomoron, it's pretty feeble.

Posted by: Dr. Morpheus on February 10, 2009 at 3:09 AM | PERMALINK

BTW, that last comment wasn't directed at Hilzoy.

Posted by: Dr. Morpheus on February 10, 2009 at 3:12 AM | PERMALINK

As just a tiny footnote... thanks for the warning the link goes to a .pdf.

I just don't bother with .pdf's. Too hard to read, memory hogs, can't save a line or two if that's what you want.

Am I the only one who feels this way? Just wondering.

Posted by: Clem on February 10, 2009 at 4:12 AM | PERMALINK

Question for the legal scholars:
Is it possible that by backing the previous administrations assertion of state secrets in this way that Obama intends for the issue to be settled by the Supreme Court as a negation of this assertion? If he caused for the State's position to be materially revised, the legal challenge might become a moot point of law and not reviewed by the higher courts?

So, if Obama really and truly wants to limit the power of the executive office and restrict the use of state secrets not just by himself but also for the next and future holders of the office he must force the courts to rule on the matter, else it remains an issue of executive discretion. That might carry the undesirable consequence of recognition of these policies as practiced by Bush/Cheney as setting a precedent in themselves (by virtue of exercised practice) rather than a matter of decided law with the constitutional interpretation and limitation imposed by the Supreme Court?


(Note to Clem: Actually, you can copy and paste from a PDF file, even just a line or two if that's all you want. At least in the version of Acrobat reader I have (v8).)

Posted by: Conjoman on February 10, 2009 at 4:32 AM | PERMALINK

There's only one way to get politicians to listen, and that's to cut off their campaign money. I was a staunch Obama contributor for the last election and for the Democratic Party for the last three elections. That has now ended until I start seeing results I voted for instead of results I voted against. I suggest that everyone else who's disappointed by this Obama administration decision, as well as by the telco immunity vote, do the same.

Posted by: jns-alex99 on February 10, 2009 at 5:41 AM | PERMALINK

Clem - Acrobat is dog of a program. Preview on OS X makes pdfs a pleasure to read in my experience. On Windows, I've heard similarly good things about foxit reader: http://www.foxitsoftware.com/pdf/rd_intro.php

The problem isn't pdf, but the terrible software most people use to view them.

Posted by: christor on February 10, 2009 at 6:44 AM | PERMALINK

the supreme court would not negate the state secrets privilege. the ninth circuit could reverse the trial court, however. this was easy to predict, right? given that rendition itself will continue....rendition is not an open process by definition. that's the real battle - getting rid of rendition (which people seem to support).

Posted by: tony smith on February 10, 2009 at 6:44 AM | PERMALINK

I'm not sure this end-run lawsuit is necessary any longer.

...Nor that the lawyer really is protecting the torture aspect by protecting the evidence. The lending of planes to the CIA might show other agents' use.

Posted by: Crissa on February 10, 2009 at 7:08 AM | PERMALINK

This administration has been in for two weeks. Holder has been in DOJ for a week. They have clearly stated that they are against torture in general. The case in question has been going on for years. Reports indicate that the Bush administration does not have organized case files for many (most?) of the detainees in Gitmo, making review by the new administration difficult. Under the circumstances, they chose not to do anything until they know the facts. (This in itself is a change, as we all know that the Bushies paid no attention to real facts, they just made up their own.) I submit that what we are seeing is the same prudence and due diligence that has characterized Barack Obama and his associates since the beginning of his campaign. My favorite campaign graphic was a photo of Obama walking off the stage, waving, with a balloon added saying "Chill the fuck out, I got it." I suggest that the hand wringers here do exactly that.

Posted by: jhh on February 10, 2009 at 7:10 AM | PERMALINK

jhh -- I AGREE with you!

Obama has been president for less than a month. We don't know what info he has that we don't. We should not make judgment without knowing all of the facts.

Posted by: pol on February 10, 2009 at 7:22 AM | PERMALINK

JHH - the quotation from the oral argument says that this case was "fully vetted" before the new administration. This is not a surprise at all. There are other processes for transferring a detainee that do not permit secrecy (like extradition). The key is to challenge rendition - not to try to turn it into an open process.

Posted by: Tony Smith on February 10, 2009 at 7:30 AM | PERMALINK

ALL radical Islamic detainees will claim to have been tortured. Such a claim contains no information.

Not exactly, am -- before the Bush Administration, such claims would have been dismissed out of hand. Thanks to the torture policies of the Party you shill for, they now will be given the benefit of the doubt. Nice going there, jackass.

Posted by: Gregory on February 10, 2009 at 7:55 AM | PERMALINK

We should not make judgment without knowing all of the facts.

We cetainly can make a judgment about the Administration trying to conceal the facts.

Posted by: Gregory on February 10, 2009 at 7:57 AM | PERMALINK

The lending of planes to the CIA might show other agents' use. - Crissa

Not pushing to close down this particular case might also discourage companies from doing any business with the CIA or other US agencies. One of the keys to this case is whether the transporter (Boeing) is abetting the crime. From a practical standpoint, I don't know how the DOJ can say that we'll help put the blame on them.

Posted by: Danp on February 10, 2009 at 7:59 AM | PERMALINK

@Tony Smith:

Would you have expected the administration to say "we've been so busy unshitting the bed that we didn't have time to review"?

Of course they have to say the case was "fully vetted", but the whole thing feels like they punted. I don't agree with the arguments made, but thus far the Obama admin have made some very positive steps in the right direction.

Until I start to see a track record of this type of behavior, I will withhold judgment and refrain from the chorus of "for shame".

Posted by: John S. on February 10, 2009 at 8:04 AM | PERMALINK

John S.,

Well stated.

Posted by: tanstaafl on February 10, 2009 at 8:48 AM | PERMALINK

Stuck, put down the Obamiac Kool-Aid.

Mr. Gadfly.

Your ratf**king trollfu needs work.

Posted by: Stuck on February 10, 2009 at 9:12 AM | PERMALINK

How do we entertain the notion that the government can just say "state secrets" and get the case dismissed outright? Assuming it does not lead to abuse, shouldn't the proper response of a court if the government asserts the state secrets privilege to enter a default judgment against the government and grant the remedy the plaintiffs seek?

Posted by: Suggestions4Obama.com on February 10, 2009 at 9:49 AM | PERMALINK

There is no way that the Justice Department has had time to review these files. And no way they were able to look at them prior to the change in administration. Regardless of whether the incoming attorneys for the administration have a different take on the state secrets doctrine, and I strongly believe they do, the rule of thumb is tread carefully and slowly.

Look I am all for transparency to a point. But lets face reality. The state secret doctrine exists for a reason. Merely because it was overused by the past administration does not mean it is going to go away.

This case goes to the heart of the use of torture by the Bush administration. It has implications not only for the litigant but former officials as well. I don't think we have any idea how widespread and pervasive the use of torture has been in this administration. When Obama says he wants to be forward moving on this issue, he might very well be signalling that it is better that we don't know.

Posted by: Scott F. on February 10, 2009 at 10:13 AM | PERMALINK

Sounds like a variation on a 20 year old joke from rec.humor.funny: http://www.netfunny.com/rhf/jokes/89q2/origtopfus.366.html

Posted by: Alan on February 10, 2009 at 11:57 AM | PERMALINK

In this nation of violence-addicted ghouls, it's really hard to imagine a bigger political loser than taking an aggressive stance against torture. That doesn't absolve Obama of failing to bring the Bush chambers to light, as right and wrong are clear here apart from public opinion. But it helps to know what manner and degree of ingrained atavism he'd face if he chose to make an issue of the crimes of the previous administration.

Posted by: kth on February 10, 2009 at 12:08 PM | PERMALINK

To everyone who wants to claim that this position was taken due to the new DOJ not having enough time to review things:

It's simply not the case. Or at least, it's the opposite of what the DOJ themselves are saying.

Read Hilzoy's post:

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."

"Thoroughly vetted". This isnt a "wait until we have more time to review things" deal. If they had wanted more time, they could have asked for more time. They feel they have had enough time, and they're sticking with the Bush view.

See Glenn Greenwald's blog for more details.

The Obama DOJ is staying the course of the Bush DOJ. We must face that. What we must do now is get them to realize that they must change course or get Congress to force them to change course.

Posted by: TG Chicago on February 10, 2009 at 2:24 PM | PERMALINK

Scott F. said: "When Obama says he wants to be forward moving on this issue, he might very well be signalling that it is better that we don't know."

Let's say that you're right. How do you feel about that? If that's what Obama is saying to me, I would reply "No, I think it's better that we do know."

How are we better off by sweeping torture under the rug? How do we ensure that it doesnt happen again if we ignore the fact that is happened previously?

Posted by: TG Chicago on February 10, 2009 at 2:28 PM | PERMALINK

I don't know if I am going to worry about this just yet we haven't even gotten though the first month of the new administration. I have a feeling that the administration just doesn't want to blanket toss stuff from Bush - especially in this area - without thinking about what comes next.

Capturing the Evils that the Bush administration unleashed when it opened Pandora's Box is going to take a bit of strategy and thought. Obama is not Bush. He thinks of consequences and he likes to plan. Running off and going with his gut without the facts is not what Obama does.

Maybe it will turn out that in this area he doesn't go a far as though out all of Bush's policies but I am not going to write him off yet.

Posted by: ET on February 10, 2009 at 2:47 PM | PERMALINK
The state secret doctrine exists for a reason.

It exists because the government lied about national security in the very first “state secrets” case.

It’s like “executive privilege”. When it’s invoked, you can be pretty sure that someone did something illegal that they don’t want revealed.

Posted by: Hank Gillette on February 10, 2009 at 3:38 PM | PERMALINK




 

 

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