The Obama/Bush weapon for shielding presidential lawbreaking from judicial review becomes stronger
(updated below – Update II)
In a 6-5 ruling issued this afternoon, the 9th Circuit Court of Appeals handed the Obama administration a major victory in its efforts to shield Bush crimes from judicial review, when the court upheld the Obama DOJ’s argument that Bush’s rendition program, used to send victims to be tortured, are “state secrets” and its legality thus cannot be adjudicated by courts. The Obama DOJ had appealed to the full 9th Circuit from last year’s ruling by a 3-judge panel which rejected the “state secrets” argument and held that it cannot be used as a weapon to shield the Executive Branch from allegations in this case that it broke the law. I’ve written multiple times about this case, brought by torture/rendition victim Binyam Mohamed and several others against the Boeing subsidiary which, at the behest of the Bush administration, rendered them to be tortured.
Flu permitting, I’ll have much more to say about this decision tomorrow, but for the moment, I wanted to highlight the first paragraph from The New York Times article on this ruling, written by Charlie Savage. Just marvel, in particular, at the last sentence (click on image to enlarge):
“The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power.” That says it all.
The distorted, radical use of the state secret privilege — as a broad-based immunity weapon for compelling the dismissal of entire cases alleging Executive lawbreaking, rather than a narrow discovery tool for suppressing the use of specific classified documents — is exactly what the Bush administration did to such extreme controversy. To see how true that is, just look at this article from Talking Points Memo, from April of last year, in which Zachary Roth consulted with numerous legal experts about my argument that Obama was abusing this weapon in exactly the same way Bush did. His findings were encapsulated in the TPM headline:
Salon‘s Glenn Greenwald wrote that the move “demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used.” MSNBC’s Keith Olbermann called it “deja vu all over again”.
Not having Greenwald’s training in constitutional law (and perhaps lacking Olbermann’s all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration’s position on the case. Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?
In a word, yes.
Suffice to say — with great understatement — Obama’s doing this doesn’t trigger the same level of outrage and objection as when Bush did it, at least not in most circles. And I do so fondly recall the days back in the Spring of last year when civil libertarians who were vigorously objecting to Obama’s Bush-replicating legal positions were told by vocal Obama supporters that Obama was only doing this in order to ensure that Bush’s extremist legal theories were rejected by courts and thus we were all generously showered with the Magnanimous Gift of Good Precedent. Again with great understatement, Obama’s appealing the 9th Circuit’s rejection of the Bush/Obama “state secrets” argument to the full court — and thus securing one of the most harmful judicial endorsements ever of this radical secrecy doctrine — is not exactly consistent with that Obama-justifying rationale.
This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.
Are you feeling enthused to go vote? If not, just close your eyes and think “SARAH PALIN,” and all of this will blissfully disappear. Besides, the President got really animated in his speech on Monday, so that’s important.
UPDATE: One other highly illustrative passage from Savage’s NYT article today (h/t Brad Friedman):
The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.
Among other policies, the Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program . . . .
As a senator and candidate for the White House, President Obama had criticized the Bush administration’s frequent use of the state-secrets privilege. In February 2009, when his weeks-old administration reaffirmed the Bush administration’s view on the case, civil libertarian groups that had supported his campaign expressed shock and dismay.
That, too, is superb under-statement: Obama’s continuity of Bush’s Terrorism policies ”has departed from the expectations fostered by President Obama’s campaign rhetoric.” Yes, one could say that.
Just to give a sense for how far we’ve traveled, how low we’ve fallen, here’s what The New York Times‘ John Schwartz reported in February, 2009, when the Obama DOJ first told the 9th Circuit that they were going to assert the same “state secrets” arguments in this case which the Bush DOJ made: ”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.” Schwartz described how the judges on the appellate panel were so startled that they actually asked multiple times if the Obama DOJ was really sticking with the Bush position, as though they couldn’t believe what they were hearing. What a quaint time that was, when people were surprised by Obama’s replicating Bush’s secrecy and Terrorism positions — the very ones he so vehemently condemned when running for President. After 18 months of seeing this over and over in multiple realms, nobody would react that way now.
UPDATE II: The New York Times has a quite good Editorial on this matter this morning — headlined: ”Torture Is a Crime, Not a Secret” — and explains: ”Barack Obama told voters in 2008 that he opposed the government cult of secrecy, but once he became president, his Justice Department also argued that the case should be dismissed on secrecy grounds.” The history of America’s torture regime will record not only the criminality and shamefulness of the torture itself, but also the subsequent — and ongoing — effort by the U.S. Government to prevent its victims from obtaining any justice while protecting the perpetrators from all accountability.
More Related Stories
- Why Democrats abandoned LGBT immigrants
- On freedom of speech, Obama-Nixon comparisons are apt
- Senate panel approves immigration overhaul
- Slave descendants seek equal rights from Cherokee Nation
- Peace Corps to allow gay couples to volunteer together
- Is abortion about to doom Republicans again?
- Anti-voter-fraud Tea Party group sues the IRS
- The Bachmann-inspired romance novel
- Nate Silver: Why the scandals aren't hurting Obama
- How to oust Michele Bachmann from Congress
- Rand Paul: Congress should apologize to Apple, not the other way around
- Who is Toronto Mayor Rob Ford?
- Colorado judge rules Abercrombie parent company violates Disabilities Act
- When America became a third-world country
- Inhofe and Coburn: Red state hypocrites
- It's Whitewater all over again
- Teen activist to meet with Abercrombie CEO
- Anyone regret slashing National Weather Service budget now?
- Oklahoma senator: Tornado aid "totally different" from Sandy aid
- Aloof, shifty Obama: Nixon times ten thousand!
- Obama: Moore "needs to get everything it needs right away"
Featured Slide Shows
The week in 10 picsclose X
- 1 of 11
Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
Credit: AP/LM Otero
Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
Credit: AP/Matt Rourke
A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
Credit: AP/Jenny Aicher
Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
Credit: AP/Molly Riley
Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
Credit: AP/J. Scott Applewhite
Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
Credit: AP/Carolyn Kaster
O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
Credit: AP/Las Vegas Review-Journal/Jeff Scheid
Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
Credit: AP/NASA/Chris Hadfield
When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
Credit: AP/Jacquelyn Martin
A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
Credit: AP/The Duluth News-Tribune/Clint Austin
Recent Slide Shows
- 1 of 11