The Obama Administration's First Civil Liberties Test: FAIL? (Commentary Round-Up)

by Damozel | Eric Holder, our new Attorney General, is overseeing a "review" of Bush administration policies on the state secrets act that Bush used to protect his administration from suits for their antiterrorism excesses. (AP)  Don't worry, my paranoid friends of the far right:  they are still going to protect state secrets, even if it means that victims of the Bush administration are deprived of any judicial remedy and the public never hears the evidence about the methods which Bush & Co. thought would keep us "safe" from terrorism.

Today a representative from Obama's brave new DoJ used the state secrets defense in  Mohamed et al v Jeppesen Dataplan, Inc. (Jake Tapper)  To clarify, the DoJ invoked the state secrets act to bar the lawsuit of five men who were suing a Boeing subsidiary that helped the CIA kidnap five men --- one of whom seems to believe he had his penis "sliced to bits," as Cernig puts it --- fly them to secret CIA camps.  Where they claim to have been tortured, the whiners. 

Meanwhile, Obama's DoJ, like Bush's, thinks it might be too dangerous to let them have their day in court.    Tapper says:

A year ago the case was thrown out on the basis of national security, but today the Ninth U.S. Circuit Court of Appeals heard the appeal, brought by the ACLU.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret....(Political Punch)

Specifically:

"This case cannot be litigated," Department of Justice attorney Douglas Letter argued. "The judges shouldn't play with fire in this national security situation."

Asked by Judge Mary Schroeder whether the change in the White House had led to any changes in the government's legal arguments in the case, Letter said it "remains the position" of the government that the case should not proceed.  (The Raw Story)

Predictably, the ACLU --- and whiny progressives like me who supported them --- aren't happy about it.  Two of their people promptly weighed in.

Anthony D. Romero, Executive Director of the ACLU said of the decision: “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.

Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs said, “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.”

Greenwald was also on hand and on a similarly intolerant frame of mind.

Today the Obama administration was required to file with the Ninth Circuit Court of Appeals its position in this case -- i.e.,...whether they would adhere to Obama's previous claims about his beliefs on "state secrets" by withdrawing that position and allowing these victims their day in court....As I wrote after interviewing Wizner two weeks ago:  "This is the first real test of the authenticity of Obama's commitment to reverse the abuses of executive power over the last eight years."  Today, the Obama administration failed that test -- resoundingly and disgracefully

To which the DoJ vaguely and unreassuringly replied that they are "reviewing" state secret claims of the Bush administration.  (AP)  Cernig asked:

How much of a review is needed to decide that invoking state secrets to bury Binyam Mohamed's attempts to seek justice is "appropriate" ferchrissake?

I noted at the time the the wingnut brigade of Senate Republicans was fighting his confirmation.  Apparently it was because they weren't sure he was a good enough Republican for a Democrat.  They probably feel better about this brave, new postpartisan world we've bought ourselves, Marc Rich or no Marc Rich.  Sigh.

Sane people everywhere were hoping for Change We Could Believe In with respect to this and other disgraces that occurred during the Bush regime:

"The Bush administration’s claim is that the 'very subject matter' of the suit is a state secret," said the New York Times in a Wednesday editorial. "We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous."

"We hope the judges will have the courage to stand up to the government," said the LA Times on Saturday.  (The Raw Story)

So...yeah, I and other progressives like me, are rightly furious.  Yes, we are.

Greenwald -- always the Obama skeptic! -- roared, and one can't really say unjustly:

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.... 

[H]e's using one of the most radical and destructive tools in the Bush arsenal -- its wildly expanded version of the "state secrets" privilege -- to accomplish all of that dirty work.  I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act.  (emphasis added)

Obama enthusiast (not that I wasn't) Andrew Sullivan, who said only yesterday, "Tomorrow...we'll find out," is quite cast down by this development, bleakly stating:

The Obama administration will continue the cover-up of the alleged torture of the British resident. The argument is that revealing the extent of the man's torture and abuse would reveal state secrets. No shit. 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.

So what are they hiding from us? Wouldn't you like to know?

Yes, I would, and I hope and trust that this "review" of which we hear such good reports means that Holder and/or Obama realize that Bush era secrecy JUST WON'T DO.  Will they reconsider? 

The Washington Independent, which reported on the case last January, expresses doubt.

It’s worth noting that while it’s still early in the new administration and Attorney General Eric Holder was just recently confirmed, the Justice Department did NOT ask the court for more time to consider its views on the case. Instead, it supported the Bush administration’s position that the case should be dismissed.

The Obama administration took a similar position in a related British case that I wrote about last week.

None of this bodes well for the likelihood of obtaining additional information about the Bush administration’s interrogation policies in the future.

Speaking of mutilated penises and other unredressed consequences of Bush administration secrecy,  of Binyam Mohammed, and "related British cases", check out this piece in The Sunday Times.

[T]wo High Court judges in London last Wednesday [are] appealing for the public release of “powerful evidence” that might help prove his astonishing claims of mistreatment to be true. The issues at stake, said the British judges, were nothing short of the lofty interests of “law, free speech and democratic accountability”...

[Involving] shocking allegations of extreme mental and physical torture at the behest of America’s CIA, it is a case that has threatened to embarrass the new administration of President Barack Obama, whose inaugural speech included a pledge to halt such activities, as well as to shed an unwelcome spotlight on what exactly the British government knew and kept secret about potential crimes committed by its closest ally....

Though never confirmed officially by the United States, evidence that verified this “rendition” to Morocco came from the flight logs of the now notorious Gulfstream jet involved. It matched the exact details of Mohamed’s testimony. It has always been much harder to assess the truth of his account of torture that he said occurred in Pakistan before his transfer and in Morocco soon after, even if there are many who report similar treatment.

After he was first arrested in Karachi in April 2002, Mohamed said that soon after the first questions from Americans, Pakistani interrogators followed up by hanging him by a leather strap round his wrist, beating him, and threatening him with a pistol to the head. Then, when this stopped, an agent from British intelligence came to hint to him that he should cooperate or face being sent to be tortured by Arabs. When he was flown to Morocco, he said, it got worse. He was beaten savagely and at one stage his genitals were cut with razor blades...

In January 2004, Mohamed said he was rendered onwards by the Americans to Kabul (again confirmed by CIA flight records). This time he was held in a covert CIA “black site” known as the Dark Prison. Inmates here were held day and night without light while being bombarded with constant loud music.

Only after a journey of more than two years between secret prisons, did Mohamed, by his account, emerge from clandestine detention to the more open but still harsh world of US military detention. And in Guantanamo, he finally got to tell his story to the British lawyer Clive Stafford Smith.(Much, much more)

In Britain, Foreign Secretary David Miliband has caused a furor by preventing full disclosure there out of concern that doing so would damage Britain's "intelligence-sharing relationship with the United States." At  The Daily Mail, David Rose wrote: 

[I]t is clear from innumerable official sources that just about all of it was true – like the use of what later became known as ‘enhanced interrogation techniques’, such as prolonged solitary confinement, shackling in ‘stress positions’, exposure to extreme heat and cold, strobe lights and deafening music; and the fact that British officials were present when they were being selected for Guantanamo...

Senior US sources told me that pressure is building in Congress and inside the administration to permit full disclosure – and that Mr Obama and his colleagues have little appetite to let the cover-up go on.

That turns out not to be the case, it seems.

As Sullivan remarked last week, one can only speculate what "the suppressed defense of Binyam Mohamed tell us about the Bush-Cheney torture program?" 

And as attorney for the Plaintiffs, ACLU lawyer Ben Wizner, told the Court:

"Our clients did not ask to be abducted, chained to the floor of planes, dressed in diapers and taken to a foreign country," Wizner told the court. "If you affirm (the judge's dismissal of the case), plaintiffs will forever be shut out of their day in court."

The judges did not immediately issue a ruling.  (The Raw Story)

More at memeorandum....

Via TRS, here's a video in case you've the stomach for it.

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Is Waterboarding Torture? Part 5: Schooling the Senate

Comments

[Nursing top]

:( my video player isn't loading...

[virginia cna classes]

probably they wanted to make sure nobody thinks the main character is gay in any way - even though he kind of looks a little closeted :)