Obama Invokes State Secrets Privilege
Meet the new boss — same as the old boss:
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 Guantánamo 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.
This will, I wager, not be the last time that the change in administration has no bearing. Being responsible for national security is rather different from commenting on it from the outside and entering office tends to make presidents conform to their new role.
Others are more surprised. Even some Obama supporters are letting him have it.
Glenn Greenwald titles his long post on the matter “Obama fails his first test on civil liberties and accountability — resoundingly and disgracefully.”
What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the “state secrets” privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration’s rendition and torture programs — even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.
Kevin Drum: “So Obama is adopting the same expansive interpretation of the privilege as the Bush/Cheney administration, and using it in order to cover up American involvement in torture and rendition programs that have been in the public record already for years and can hardly even be said to be secrets, let alone state secrets that are vital to U.S. national security. This is decidedly not change we can believe in.”
Armando Llorens (Big Tent Democrat): “Holder and the Obama Administration are BSing us on this issue. Unlike some, I believe that there are appropriate situations for application and invocation of the state secrets privilege. I think it serves an important function. The Jeppesen case is about as far a case as one could imagine where the invocation of the state secrets privilege can possibly be deemed appropriate.”
Andrew Sullivan: “This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”
Thoreau: “The machine is on autopilot, and nobody who wears that Ring is going to toss it into the volcano.”
Cernig: “Thus, the Obama administration collectively become accessories to the Bush administration’s crimes. In my opinion, any cabinet member who had an ounce of spine and an ounce of belief in the rule of law for all would resign over this travesty of justice. Watch for an utter lack of that.”
Ron Chusid calls this a “disappointing move” but argues “While I disagree with what appears to be a general policy from Obama to avoid prosecution based upon the crimes of the Bush administration, this still does not place Obama on the level of those in the Bush administration which actually committed these acts. We can be disappointed in this decision by the Obama administration to hinder prosecution for past acts while still applauding their decision to refrain from such actions in the future.”
Daren Hutchinson points out that, “If the Obama administration wished to drop the policy in this particular case, it would have done so prior to today’s oral arguments. Most lawyers, however, do not shift positions in order to lose a case. Furthermore, the privilege can help secure victories in future cases; accordingly, DOJ will continue asserting it.” He adds, “The DOJ’s position is less about creating a wall of governmental secrecy; instead, it represents a powerful litigation strategy. Although acceptance of the privilege by courts results in the dismissal of anti-torture litigation, very few lawyers would forgo such a powerful strategic device.”
That strikes me as exactly right. Obama’s president now. He has ostensibly discontinued the policy of “extraordinary rendition,” the extent of which we will likely never know. But he’s neither going to compromise national security secrets nor give away potentially useful presidential powers now that he’s in the White House. I’m surprised anyone’s surprised by that.