Obama's Legal Team Copies Bush's 'State Secrets' Trick to Cover Up Torture and Renditions
On Monday in San Francisco, attorneys representing the Obama administration did what many of the president's supporters would have considered unthinkable on election day: they arrived in a federal courtroom and defended one of the most controversial practices of the Bush administration.
"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," Anthony Romero, executive director of the American Civil Liberties Union said in an impassioned statement. "This is not change. This is definitely more of the same."
The case was Mohamed et al. v. Jeppesen Dataplan, a lawsuit originally brought in 2007 by the ACLU on behalf of five victims of extraordinary rendition, the notorious CIA program in which terror suspects are kidnapped, thrown on a plane and flown to another country to be tortured and interrogated.
Jeppesen Dataplan, a subsidiary of Boeing, is said to have provided the logistical support for the rendition of all five plaintiffs, among them, Binyam Mohamed, an Ethiopian national who, in July 2002, was taken from Pakistan to Morocco, where for 18 months he was imprisoned and brutally tortured, including being cut with razorblades on his testicles. Mohamed was later sent to Guantanamo Bay, where he supposedly awaits imminent plans for his release. He has never stood trial.
Under Bush, the ACLU's lawsuit was thrown out multiple times on "state secrets" grounds -- a bogus excuse according to human rights lawyers who have long argued that the real goal was to keep evidence of the sort of torture endured by Mohamed away from a courtroom.
"To date, not a single torture victim has had his day in court in the United States," ACLU attorney Ben Wizner told reporters last week. Thus, the objective of yesterday's hearing was simple: the ACLU was asking that the lawsuit move forward. But to the dismay of many who believed Obama would open the door to justice for torture victims in the so-called war on terror, it appears his administration is instead following in Bush's footsteps.
"This case cannot be litigated," Department of Justice lawyer Douglas Letter said on Monday. "The judges shouldn't play with fire in this national security situation."
For those who spent the past eight years fighting back against cynical claims of "national security" to justify illegal and inhumane practices, the words smack of the Bush era.
"If the Obama administration, so early on, is toeing the Bush line," Romero warns, "that speaks volumes for where we might end up years from now."
The Debate Over Rendition
The Jeppesen hearing came on the heels of a week that saw the topic of extraordinary rendition -- and Obama's approach to it -- under particular scrutiny. On Feb. 1, the Los Angeles Times ran a story that caused a stir around the issue in the media, the blogosphere and the human rights community.
"The CIA's secret prisons are being shuttered," the article began. "Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.
"But even while dismantling these programs, President Obama left intact an equally controversial counterterrorism tool.
"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States."
The article quoted an anonymous administration official, who said,
"Obviously you need to preserve some tools -- you still have to go after the bad guys.
"The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."
The official's statement was backed up with a quote from a representative from Human Rights Watch: "'Under limited circumstances, there is a legitimate place'" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch."
The article sparked anger and controversy from op-ed pages to the blogosphere. ("So, it would appear that we will not see the end of torture under this administration after all," lamented blogger Digby.) But backlash against the LA Times quickly followed.
In a post titled "Renditions Buffoonery," attorney Scott Horton, who writes the Harpers blog "No Comment," called it a "breathless piece of reporting," which, among other problems, "misses the difference between the renditions program, which has been around since the Bush 41 administration at least … and the extraordinary renditions program which was introduced by Bush 43 and clearly shut down under an executive order issued by President Obama in his first week."
The earlier renditions program regularly involved snatching and removing targets for purposes of bringing them to justice by delivering them to a criminal justice system. It did not involve the operation of long-term detention facilities and it did not involve torture. There are legal and policy issues with the renditions program, but they are not in the same league as those surrounding extraordinary rendition.
The LA Times, said Horton, "got punk'd."
Constitutional lawyer and blogger Glenn Greenwald had his own criticisms about the article, and got into an e-mail debate with its author, Greg Miller, whose response defending his report was posted on Greenwald's blog.
"The story made clear that Obama intends to administer the rendition program in a very different way," Miller argued. "… This is not a story saying it's business as usual under Obama."
"Nevertheless, the rendition program is controversial. Even if administered in the most enlightened manner, it is a program that involves the use of the CIA in secret abductions and prisoner transfers."
Even as some backpedaled on their initial reactions ("You'd think I'd know better than to take a newspaper article about the intelligence community at face value by now," Digby wrote), for some who have closely followed the Obama administration's handling of torture in his first days in office, the discussion was far from over.
"Liberal bloggers have jumped on the bandwagon defending President Obama's executive order calling for a review of the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States," wrote psychologist and blogger Jeffrey Kaye, who has spent the past few months waging a one-man crusade against the torture loophole embedded in the Army Field Manual. "Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), 'Under limited circumstances, there is a legitimate place' for renditions."
According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article … are examples of "renditions performed by the American government [and] are legal, effective and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed," a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).
Like other defenders of Obama's right to maintain some version of the policy in place, Clarke, a counterterror advisor to Bill Clinton, sought to clear up "the confusion over rendition." Rendition "proved workable before the Bush administration," Clarke wrote, "And it need not be something to fear in the future."
What Is Really at Stake
The differences between Bush-era rendition and its precursors are not insignificant -- in fact, Horton and Center for Constitutional Rights President Michael Ratner debated them on Democracy Now! last week. But, given that they largely boil down to what the CIA did as a matter of policy under Bush (torture) versus what was allegedly done under Clinton unofficially (torture), neither are they the most urgent issue at hand. Obama's much-lauded executive orders are vague enough to elicit endless speculation when it comes to rendition and other intelligence policies. But the actions of his Department of Justice on Monday were not.
"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," Ben Wizner said. "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."
Indeed, at stake in the Jeppesen case is not only justice for the victims of a hideous policy -- one that, in whatever form, should not be exercised by a country that claims to be a beacon of democracy and human rights -- but a changing of course when it comes to the flagrant abuse of the state-secrets doctrine, which was repeatedly used by the Bush administration to stamp out lawsuits against the government for its myriad abuses, from torture to illegal spying.
Both Obama and his Attorney General, Eric Holder, have vowed to review the Bush administration's use of the state secrets privilege. As a DOJ spokesperson told the Washington Post yesterday. "It is vital that we protect information that if released could jeopardize national security, but the 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."
But as Romero told reporters last week, the actions of the Obama administration "are unfortunately speaking louder than their words."
"What this is clearly about is shielding the U.S. government and Bush officials from any accountability," wrote Glenn Greenwald following the Jeppesen hearing Monday. "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."