10 Feb Obama Administration Backs the State Secrets Privilege in Rendition Case
I’m not at all surprised by this.
Barack Obama‘s justice department has repeated a Bush administration policy of citing “state secrets” to prevent the release of evidence concerning extraordinary renditions.
The decision, revealed at a hearing in a San Francisco appeals court, came days after the British high court ruled that evidence of renditions and torture must remain secret so as not to endanger the intelligence relationship between the two countries.
The appeal in San Francisco’s ninth US circuit court concerned the case of Binyam Mohamed, the subject of last week’s high court ruling, and four other men.
Civil rights lawyers had brought the appeal in the hope that the justice department would reverse the Bush-era policy. Last February the Bush administration intervened in a case brought against Jeppeson Dataplan, a subsidiary of Boeing, persuading Judge James Ware to dismiss the case on grounds of state secrets.
. . .
Accusing Obama of turning his back on civil liberties, Anthony Romero, executive director of the American Civil Liberties Union, one of the parties in the case, said: “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.”
So Obama is keeping Bush’s rendition policy, and he is going to use state-secrets privilege to defend it in court. Obama supporters among our readers (isn’t that, like, all of you?), does this surprise or dismay you?
DIismay! I am dismayed, dammit all!
I am not surprised that the extraordinary rendition program remains intact for now and possibly longer, or that the administration wants to keep the details about its operation as secret as possible for as long as it can. Though I think rendition is neither nice nor legal, from a pragmatic perspective, I view it as a preferred alternative within a spectrum of possible alternative strategies for neutralizing the threat of terrorists who are not currently residing in the borders of the United States – a spectrum that includes targeted assassinations and torture. While rendition as it has allegedly been practiced thus far almost always facilitates removal to countries where torture is more than likely—indeed, that seems to be the very purpose of the program—it is of course possible that extraordinary rendition could be brought under control and regulated more carefully so that it more closely resembles rendition to justice (http://www.chrgj.org/docs/APPG-NYU%20Briefing%20Paper.pdf). Coupled perhaps with more intense scrutiny of the virtually worthless “diplomatic assurances” (http://www.hrw.org/en/reports/2005/04/14/still-risk) by the State department – perhaps through special monitoring agreements written into the assurances – it is perhaps idealistic, but not impossible to believe that we could prevent renditions from always leading to torture. Of course, if… Read more »
Neither surprised nor dismayed.
Response…No, I am no supporter of Obama, nor of the imperialist, terrorist state of America. Nor am I in the least bit surprised by this latest example of hypocrisy by this slick con-man, any more than I was when, after talking incessantly about the economy as candidate Obama, he was silent as President Obama while Israel was slaughtering the defenseless, captive population of Gaza, murdering children and their families after they emerged with white flags as ordered by the smiling IDF soldiers, murdering UN personnel seeking to help the injured, bombing UN warehouses, bombing hospitals and schools, and generally commiting as many war crimes as they possibly could before inauguration day. Panetta’s Senate testimony last Friday was highly revealing, not only as the formal denial of past crimes that are well known to people all over the world, but as a signal that the CIA will continue to carry out such crimes with impunity. Then there is the report, published in the Washington Post Saturday, that the Obama administration is revamping the National Security Council, endowing it with sweeping new powers that suggest the formation of something akin to a fourth branch of government. Directing much of othe reconfiguring of… Read more »
Vargold, I’m not sure where you are coming from, but you most certainly are not expressing views within the mainstream, either left or right. Your strange post appears consistent with your own website, vargold.com which includes the following gems: “Our world is dying. We have cut off its legs, are poisoning its bloodstream and destroying its lungs. As if this were not enough, however, all life on Earth is being held hostage to the threat of annihilation by weapons of mass destruction on hair trigger alert, while a powerful and shadowy globalist elite and its thugs–whom together I endearingly refer to as ‘Scumbag, Inc.’–move inexorably forward with a dark, insidious agenda of global domination, hijacking our government and waging illegal wars of aggression to control the world’s resources and ensure geopolitical hegemony while, like a tapeworm, it drains the global financial system to fund ‘beyond top secret’ military programs (including reverse-engineering of ‘E.T.’ technology), leaving vast suffering, dangerous social and political instability and environmental devastation in its wake. Justifying their wars of aggression with false-flag terrorist operations –such as that of 9/11–which they conceal by means of unremitting and thorough campaigns of information and psychological warfare (the ‘Global War on… Read more »
Increasingly dismayed. I know it’s early days, but torture is pretty important. It pretty much confirms the extremely unusual comments from the UK High Court Judges, which themselves were fairly dismaying.
BTW, if anyone would like an excellent scholarly discussion of the state secrets doctrine, check out my colleague Amanda Frost’s article, The State Secrets Privilege and Separation of Powers, in Fordham Law Review from 2007 and at SSRN.
Response…Prof. Alford, why don’t you address the substance of my post (and/or the message on my home page), rather than lamely dismissing it as ‘strange.’ Need I remind you that, as Arthur Schopenhauer once observed, all truth passes through three stages: First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident.
Vargold: Not all that is ridiculed or violently opposed is the truth.
I try not to let an ATS related post pass by without shamelessly promoting my book: Justice Across Borders: The Struggle for Human Rights in U.S. Courts (Cambridge University Press 2008).
Not a correction of Julian’s post, nor of Euan MacDonald’s comment, more a correction of the Guardian article: The English High Court did not actually decide “that evidence of rendition and torture must remain secret so as not to endanger the intelligence relationship between the two countries.” The latest judgment (R (Mohamed) v secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 152 (Admin)) was only about the information of some such evidence to the general public, as part of one of the earlier judgments in the case. The judgment had nothing to do with the disclosure of evidence to any party to any case, whether in England or in the US. Of course, the case had originally been about the disclosure of secret information to someone detained at Guantanamo Bay. The man, Binyam Mohamed, was then likely soon to be charged before a Military Commission, and requested the British Foreign Secretary to release such information as the Foreign Office and the Security Service might hold about his, Mohamed’s, ill-treatment at the hands of US agents in Afghanistan, and his ‘extraordinary rendition.’ The Foreign Secretary refused, and Mohamed sued. In a first judgment, the two judges in the High Court… Read more »
Er, that should be “the release of some such evidence to the general public”, in the second paragraph of my earlier comment, not “the information of some such evidence.”
I don’t really understand, by the way, what the case in the 9th Circuit would have been about. From what the English court has said, I would have thought the evidence has already been released. If anyone could clarify this, I should be much obliged.
I am neither surprised nor dismayed, and only a little disappointed. Julian seems determined to grasp at any scrap of evidence that he can find indicating that the Obama administration is no different from the Bush adminsitration. I think the Obama administration will show itself to be very different from the Bush administration in most things, including the SSP and rendition, but I don’t expect a new administration to go out of its way to discredit its predecessor at every opportunity. I am threfore not surprised that the Obama administration might recognize that it would be hurtful to the legitimacy of government in general and a slap in the face to particular dedicated public servants for it to reverse itself on a specific point in the course of ongoing litigation. I will not be surprised if the Obama administration lets existing claims relating to the SSP run their course but is very reluctant to rely on that doctrine with respect to future cases. I also expect that rendition, which I would like to see eliminated entirely, will continue to exist but will be resorted to with decreasing frequency and with greater safeguards so that the policy can be maintained in… Read more »
Maybe too soon to tell.
See http://www.securitylawbrief.com/main/2009/02/holder-orders-review-of-all-state-secrets-claims.html
“Holder orders review of all state secrets claims
02/09/09: The Associated Press reports that Attorney General Eric Holder has ordered a review of all claims of state secrets, which were used under President Bush to shield controversial anti-terrorism programs from lawsuits. Even as officials promised a thorough review, government lawyers continued to invoke the state secrets law Monday in a federal appeals court in San Francisco in a case involving the CIA’s extraordinary rendition program.
“
I hate to admit it, but one of the first things I thought of when I saw this story in the Times was: “I wonder how long it will take Julian Ku to post this on OJ?” I think I’m becoming a little too familiar with this blog. Julian should just program a bot to automatically link to any story which include the words “Obama” and “rendition,” and then insert some random snide comment aimed at Obama supporters (E.g. “I would like to hear from Obama’s supporters: is this the change we’ve been waiting for?”).
The point to these posts seems to be to justify one’s support of the Bush Administration’s torture policies by implying that Obama is also a tacit supporter. Unfortunately, even if Obama turned out to be the world’s #1 proponent of waterboarding, it would not make torture, support of torture, or rationalization of torture any less illegal or morally unpalatable.
To answer the question, if you’re not surprised, dismayed and appalled by Obama’s disgraceful and cowardly act, there’s something wrong with you. We should hold our leaders to a higher standard than this.
HI all, I don’t usually respond to comments, but I thought I would clarify why I am harping on this Obama equals Bush thing. I don’t support all of these war on terror policies, but I think the fact that Obama of all people has a problem reversing or dumping these policies suggests that the issue is simply not as clear cut as many Bush critics would like to have it. I will try to cut down the snarkiness (although I don’t remember many Bush critics who managed to restrain their snarkiness over the past eight years).
Response… Re: “Not all that is ridiculed or violently opposed is the truth.” (Guy – 12:38pm EST) Thankyou for pointing out the obvious. I took Logic 101 too, and at the age of 16 (and passed with flying colors). Not all that is accepted as being self-evident is true, either, Guy – no matter how many zombified, ignorant American morons believe it. But that’s not the point, either. Those of you who feel moved to post an objection to my comments should be prepared to explain what it is, specifically, that you object to, and why. This is how reasoned discussion between intelligent people in a free forum of ideas proceeds. Vacuous irrelevancies and snide insinuations never made it around Socrates or Plato, and they don’t impress me, either. It is sad that so many of you on this side of the Atlantic–and especially academics–have become so smug and complacent in your ivory towers. My ideas seem “strange” to you—why? Because you are living in a fish bowl? Do you not have even one student who dares challenge your assumptions? How things have changed since the 60’s in academe! Perhaps all the students who care about something… Read more »
Hm, my first comment is still apparently “awaiting moderation”. How so?
To respond to Vargold’s put up or shut up comment, it is really quite straightforward: your theory–that obama is an insidious agent of worldwide oppression–is baseless.
Response… I GIVE UP.