(Updated below – Update II – Update III - Update IV – Update V – Update VI – Update VII)
Two weeks ago, I interviewed the ACLU’s Ben Wizner, counsel to 5 individuals suing the subsidiary of Boeing (Jeppesen) which had arranged the Bush administration’s rendition program, under which those 5 plaintiffs had been abducted, sent to other countries and brutally tortured. Today the Obama administration was required to file with the Ninth Circuit Court of Appeals its position in this case — i.e., whether it would continue the Bush administration’s abusive reliance on the “state secrets” privilege to prevent courts from ruling on such matters, or 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.
Yesterday, enthusiastic Obama supporter Andrew Sullivan wrote about this case: ”Tomorrow in a federal court hearing in San Francisco, we’ll find out if the Obama administration intends to keep the evidence as secret as the Bush administration did.” 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:
Obama Administration Maintains Bush Position on ‘Extraordinary Rendition’ Lawsuit
The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.
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.
This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.
The ACLU’s Wizner said this:
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.
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. As Wizner said:
For one thing, the idea you alluded to, the facts of this story are absolutely well-known, have been the front pages of the New York Times and Washington Post, are in books, and all of these stories are based on CIA and other government sources, that essentially said, well, in this case we got the wrong guy. So the position of the Bush administration, accepted by conservative judges in that case, really the only place in the world where Khalid El-Masri’s case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen.
Despite that, the new President — who repeatedly condemned the extreme secrecy of the Bush administration and vowed greater transparency — has now acted to protect, purely on secrecy grounds, the government and company that did this, as Wizner described:
They were essentially the CIA’s torture travel agents. They were the one who arranged all the overflight rights for the CIA civilian planes to be able to fly from country to country. They handled the security and the logistics. They filed dummy flight plans to try to trick air traffic controllers into not being able to track where the actual flights were going. And we know they knew what they were doing because we have a witness in our case, someone who’s given us a sworn declaration, who was an employee of Jeppesen DataPlan, and who was present when senior officials of the company were openly boasting about their role in the torture flights, and about how much money they made from them because the CIA spared no expense.
We were able, with the help of an investigative journalist and other documentary evidence, to link Jeppesen to an number of very specific CIA rendition flights, involving these five torture victims who were flown to countries like Egypt, Morocco, to CIA sites in Afghanistan and eastern Europe. . . .
[Plaintiff Ahmed Agiza] was picked up off the streets of Stockholm and then he was taken to an airport where a CIA rendition team–this is a bunch of men dressed all in black, with their faces covered–sliced off all of his clothes, put a suppository into him, chained him to the floor of an airplane, flew him to Egypt, where he was exposed to absolutely brutal torture, including shock treatment, all kinds of beatings. He was then given a show trial in an Egyptian military court and sentenced to 15 years for involvement in a banned organization.
His has been an extremely well-documented case; it’s been in books by Seymour Hersh and others. The UN has investigated this; the Swedish government has investigated this case.
In fact, just a couple of months ago, the Swedish government agreed to pay Ahmed Agiza $450,000 for its secondary role in the CIA’s rendition of Agiza to Egypt. So there’s no real secret involved here. Nothing would be revealed by allowing Agiza to go forward in a case against the CIA, because Jeppesen’s role is public, because Sweden’s role is public, and because Egypt’s role is public–he’s in an Egyptian prison right now.
That’s what Barack Obama is now shielding from judicial scrutiny. Those are the torture victims he is preventing from obtaining judicial relief in our courts. And he’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, and it’s hard to disagree with what ACLU Executive Director Anthony Romero said today:
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.
Secrecy generally, and the state secrets privilege particularly, was the linchpin of the civil liberties abuses and constitutional radicalism of the last eight years. At the end of 2006, Slate‘s Dahlia Lithwick listed the Bush administration’s “10 most outrageous civil liberties violations” and it included this:
6. The State-Secrets Doctrine
The Bush administration’s insane argument in court is that judges should dismiss entire lawsuits over many of the outrages detailed on this very list. Why? Because the outrageously illegal things are themselves matters of top-secret national security. The administration has raised this claim in relation to its adventures in secret wiretapping and its fun with extraordinary rendition. A government privilege once used to sidestep civil claims has mushroomed into sweeping immunity for the administration’s sometimes criminal behavior.
That the Obama DOJ – when faced with its first real test to determine what it intends to do in these areas (as opposed to engaging in symbolic rituals and issuing pretty words) — explicitly adopts exactly the Bush position is about as inauspicious a start in these areas as one can imagine.
UPDATE: I just spoke with Wizner about today’s court hearing. It’s really remarkable what happened. One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government’s position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration — the new DOJ – had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.
There’s no doubt about that. Wizner pointed out that after the interview he did with me 10 days ago, there was substantial press coverage of this matter. Both The New York Times and The Los Angeles Times wrote editorials in the last week demanding that the Obama administration adhere to its prior pledge and abandon the Bush administration’s reliance on “state secrets” in this case. Wizner said that reporters calling the DOJ were told that the case was under active review. This was an active, conscious decision made by the Obama DOJ to retain the same abusive, expansive view of “state secrets” as Bush adopted, and to do so for exactly the same purpose: to prevent any judicial accountability of any kind, to keep government behavior outside of and above the rule of law.
Finally, Wizner noted one last fact that is rather remarkable. The entire claim of “state secrets” in this case is based on two sworn Declarations from CIA Director Michael Hayden — one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation — the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?
What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush’s secrecy architecture in place, it ensures that any future President – Obama or any other — can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.
UPDATE II: There wasn’t a more enthusiastic Obama supporter during the campaign than Andrew Sullivan. Here is what he wrote just now:
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?
There is no viable excuse, or even mitigation, for what they did here.
UPDATE III: For those interested, I wrote many times in the past about the origins of the State Secrets Privilege and how the Bush administration’s abuse of it (endorsed by the Obama DOJ today) has been so severe and destructive — see, for instance, here and here. And see this excellent comment from DCLaw1, explaining yet another reason why the Obama administration’s decision today is such a substantial setback for the cause of restoring our Constitutional framework.
UPDATE IV: The New York Times‘ article by John Schwartz on today’s hearing contains the quotes from the exchange which I described in the Update above:
[A] lawyer for the government, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the panel of 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.
“The change in administration has no bearing?” she asked.
“No, your honor,” he said once more. 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 with the appropriate officials within the new administration”: that’s about as explicit as it gets. It will be extremely difficult for even the most loyal Obama followers to deny that this was an active and conscious decision on the part of the Obama DOJ to embrace one of the most extreme abuses of the Bush presidency.
It isn’t merely that the Obama DOJ is invoking the privilege for this particular case, which contains allegations of torture that are as brutal and severe as any. That’s bad enough. But worse is that they’re invoking the most abusive parts of the Bush theory: namely, that the privilege can be used to block the adjudication of entire cases (rather than, say, justify the concealment of specific classified documents or other pieces of evidence), and, worse still, can be used to prevent judicial scrutiny even when the alleged government conduct is blatantly illegal and, as here, a war crime of the greatest seriousness.
They’re embracing a theory that literally places government officials beyond the rule of law. No minimally honest person who criticized the Bush administration for relying on this instrument can defend the Obama administration for doing so here.
UPDATE V: It’s simply not possible to know any less about an issue than The Atlantic‘s Marc Ambinder apparently knows about the State Secrets privilege, yet that doesn’t deter him even for a moment from opining pedantically on what happened today. Not only doesn’t Ambinder have the first idea what the controversy is even about (he defends what the Obama DOJ did here by arguing that “Obama certainly never promised Americans that he’d declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever” — as though there is anyone who actually believes that), but he has also anointed himself spokesman for Obama-supporting civil libertarians such that he can read their minds and divine why they voted for Obama: ”civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals [sic] (and vice president.)”
Even if it’s true that “civil libertarians” voted for Obama because they believed he and his appointees would “be better stewards of that privilege than President Bush and his attorney generals [sic],” what the Obama DOJ did today — adopt Bush’s abusively broad version of the privilege and then invoke it to shield entire torture and rendition programs from judicial scrutiny — would be the exact opposite of that. Is it really that difficult for journalists to refrain from pretending that they understand things until they bother to do the most minimal work to make the pretense slightly convincing?
UPDATE VI: Someone might want to ask The Atlantic‘s resident civil liberties expert and self-anointed spokesman for civil libertarians everywhere, Marc Ambinder, who “Patrick Romero” [sic] is. Those who want to mock the ACLU’s “outrage” and purport to speak on behalf of civil libertarians might want first to learn who the ACLU’s Executive Director actually is.
UPDATE VII: More on Obama’s reversal: here.