Obama Administration Backs the State Secrets Privilege in Rendition Case

by Julian Ku

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?

http://opiniojuris.org/2009/02/10/obama-administration-backs-the-state-secrets-privilege-in-rendition-case/

20 Responses

  1. DIismay! I am dismayed, dammit all!

  2. 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 the whole point of the program is to torture to gain information there will be no interest in “humanizing” the practice along these lines. If any reform were to occur, though, this would certainly require time, just as the Obama administration needs time to sort out GTMO (though arguably the Bush administration had years to do this).
    Within the constrained decision space that acknowledges that certain aspects of the ‘war on terror’ will continue to operate in some form or another for some time, rendition could be seen as a preferred strategy when related back to the goals of the ‘war on terror,’ which I see as two-fold: (1) neutralizing actual terrorist threats and (2) preventing the spread of the ideology that enables the development of such threats. A more benign rendition program (and perhaps even a largely unchanged rendition program) seem a much better weapon than targeted assassinations in light of these twin goals of the ‘war on terror.’ Of course, both rendition and targeted assassination totally forego due process and judicial review, but that’s where the similarities end.
    First, rendition usually harms one individual at a time (though there is of course psychic “collateral damage” to families and loved ones), while targeted assassinations typically inflict much more pain and real collateral damage in the form of innocent civilian deaths. Second, rendition is usually extremely secretive and a far less dramatic display of the abuses of American power than a Predator drone blowing up a wedding somewhere in the Middle East (to borrow from Hollywood’s imagined depictions). On both counts rendition creates far fewer ‘victims’ of the ‘war on terror’, thus minimizing its impact on our efforts to win the ‘hearts and minds’ of would-be terrorist sympathizers (or at least not lose them to terrorist ideological commitments). In addition, as I mentioned, there is the potential that extraordinary rendition can be reformed and transformed into rendition to justice with the requisite measures of due process afforded, whereas once the President or some General gives the green light on an assassination, the trigger has been pulled with no opportunity to ask questions later.
    What DOES continue to surprise and beguile me is not that the government continues to argue for state secrets privilege, but that the courts continue to accept these arguments, which essentially go like this: “we can’t tell you the evidence because then we would reveal how we got the evidence, which hampers our ability to get other evidence in the future.”
    Having worked briefly on the Maher Arar case—the first instance of rendition to be challenged in federal court (current status: http://www.nytimes.com/2008/12/10/nyregion/10arar.html?_r=1&bl&ex=1229058000&en=97e09bceab92cc7c&ei=5087) – I still cannot understand how the government’s arguments that Presidentially appointed federal judges are somehow not trusted enough to review in camera the evidence and to make determinations about its admissibility without revealing anything about how the evidence was gathered. Granted, federal judges do not go through the security clearance that top officials and intelligence officers do, but they are heavily vetted, and is there a sitting judge in the federal judiciary that anyone would actually suspect of being an intelligence liability? I just must be missing something, but I really fail to see why judges should not be permitted to view this evidence – it works in the ‘wire-tapping’ court, doesn’t it?

  3. Neither surprised nor dismayed.  

  4. 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 the NSC, according to the Post, is John O. Brennan, a former senior CIA official who is both Obama’s adviser for counterterrorismn and homeland security and Jone’s dep uty.  Obama had reportedly wanted to place him at the head of the CIA, but was forced to withdraw his name for consideratoin after it became known that Brennan was a vocal advocate of the extraordinary rendition program and a defender of the CIA’s “enhanced coercive interrogation techniqujes,” i.e., torture. 

    Obama, as Prof. Norman Finkelstein reminded us (see video, below) is nothing but another crooked politician, who gets a pass because he is black.   No one with more than two brain cells could be in any doubt as to what the Rev. Martin Luther King would say about Obama.   Less than three weeks after the inauguration, it is becoming ever more apparent that the new administration has been brought into office to defend the same social and class interests as the previous one, utilizing similar methods and relying on the same personnel within the national security apparatus responsible for the criminal activities of the past eight years. 

    (See the interview with Prof. Finkelstein regarding massive Israeli war crimes in Gaza, etc., approx. 10 min.) http://informationclearinghouse.info/article21939.htm

  5. 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
    Terror’) facilitated mainly by the corporate-controlled, moronic mainstream media,  they are able to maintain a state of fear and intimidation,  homeland insecurity and technological tyranny  unrivalled by any empire in history.”

    Sincerely,

    Roger Alford


  6. 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.

  7. 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. 

  8. 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.

  9. Vargold: Not all that is ridiculed or violently opposed is the truth.

  10. 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).  

  11. 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 held that Mohamed was, in principle, entitled to receive information about these things from the Foreign Secretary. The Court reserved for another day the question whether the Foreign Secretary would also have to release sensitive information received from the US. It also redacted some summaries of the secret information from its published judgment. (See my comments on the case here and here.)

    The Bush administration was predictably outraged. They informed the High Court that the US might well “review” its policy of sharing intelligence with Britain if secret information was in fact disclosed. At the same time, however, things changed in relation to Binyam Mohamed’s case at Gitmo: the documents in question were, in somewhat redacted form and under certain conditions, made available to Mohamed’s lawyers. Then, after the inauguration of Pres. Obama, proceedings in the Military Commission were of course halted.

    As a result, Binyam Mohamed no longer asked the High Court to order the release of classified British files to his (US) defence team. The judgment of 4 Feb was then only about the restoration of some sensitive information to the first published (open) judgment. The question therefore did not involve Binyam Mohamed’s fair trail rights,  but the general duty on the courts to publish all judgments.

    Interestingly, the Court may have suggested that it would have ordered the release of the evidence to Mohamed’s lawyers; it said that the right to a fair trial fell to be regarded either as an absolute value or as one which will inevitably prevail in a balancing exercise (para. 29 of the recent judgment).

    Even more interestingly, the Court recorded that the change of Administration in Washington had not affected the stance of the US Government. The US were still threatening to “review” their cooperation with the British intelligence services if “their” information was released. They were, apparently, not concerned so much with the horrendous allegations against the Bush White House, but with the security of cooperation between the intelligence services (para. 78 of the judgment). Also, the Obama Administration was still not going to release the information for publication in the judgment.

    It was the existence of this threat as a point of fact – irrespective of the probity of such conduct on the part of the US Administration – that led the High Court to decline to restore the summary of the secret evidence to its open judgment.

    The case in the High Court, then, was a world away from the “state secrets privilege.” It was not about the release of evidence to a party that depended on it, much less about the dismissal of a case on that basis. It does suggest, however, that the new White House feels no less strongly about its state secrets than the old bunch, as Julian suggests. That’s a pity, particularly as the “state secrets privilege” is potentially in violation of the right to a fair trial (Article 14 of the International Covenant on Civil and Political Rights) (see my comments here and here).

  12. 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.

  13. 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 a manner less obviously violative of the U.S’s obligations under existing and ratified human rights conventions.

  14. 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.

  15. 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.

  16. 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).

  17. 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 other than getting their degree and a good job have concluded that your “institutions of higher learning” are a waste of their precious time…
     
    So I say to Prof. Alford, and to anyone else who believes I am wrong: put up, or shut up. There are plenty of other places you can vent without any expectation from anyone that any light will accompany the heat.
     
    P.S. You’ll need a good selection of fonts available in your word-processing program for my website to display correctly, at present. Old English, for example. Otherwise it’s a horrible mess. Just started the website, hope to solve the problem by imaging the fonts, but I’m not a techie, so we’ll see.

  18. Hm, my first comment is still apparently “awaiting moderation”. How so?

  19. 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.

  20. Response… I GIVE UP.

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