Obama’s Disgrace: Making Bush’s State Secrets Argument in Court
by David Nixon
by David Nixon
February 13, 2009 – Since the inauguration, the talk about Bush administration war crimes and torture has been focused on whether Obama would take positive action to investigate and punish the guilty. Would he be active or passive? Those who wanted to see Obama take an active and vigorous rôle were troubled by his statements that, although there will be no torture in his administration, he prefers looking forward, rather than back.
But nobody I’ve read or heard had imagined that he might actively promote and defend the very Bush policies that he had previously condemned. Yet, sadly, that is what happened this week.
Obama's DOJ actually and explicitly made the same state secrets argument that the Bush administration had made before the Ninth Circuit in San Francisco on Monday, February 9. If successful with the court, this will prevent the plaintiffs, victims of Bush's rendition and torture practices, from any chance of legal redress in US courts.
When hearing about this story, I first I thought that maybe the Department of Justice attorney, Douglas N. Letter, was just not up to speed with the change in administration. Not so. Salon.com reporter, Glenn Greenwald, says the justices were incredulous. He quotes from John Schwartz’s New York Times article, Judge Mary M. Schroeder asked “Is there anything material that has happened” that might have caused the Justice Department to shift its views?
“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. (Emphasis in the original)
This case (Mohamed et al. v. Jeppesen) has already received a lot of press attention, making government claims for the need for secrecy ludicrous. In fact, one of the plaintiffs, Ahmed Agiza, has already received damages from the Swedish government for its small part in the CIA rendition. By any standard, the treatment the plaintiffs allege was outrageous. In the Times’ article Schwartz wrote: “The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, ‘he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.’"
The failure of the Obama administration to follow through on campaign rhetoric and Obama’s now cheapened criticisms of the Bush administration’s excessive secrecy are both shocking and, to me, a great surprise. Sad, too, is what it says to the lawyers and staff of the Department of Justice who thought, prematurely, that their long shameful night had ended.
Anthony D. Romero, executive director of the American Civil Liberties Union, was quoted in an ACLU press release on Monday, saying: "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."
Next to George Bush, Barack Obama is a giant. Next to the constitution and the rule of law, Barack Obama is a peanut. For the sake of developing some humility, he would do well to remember that. For the better protection of our liberties, we’d all do well to remind him.
But nobody I’ve read or heard had imagined that he might actively promote and defend the very Bush policies that he had previously condemned. Yet, sadly, that is what happened this week.
Obama's DOJ actually and explicitly made the same state secrets argument that the Bush administration had made before the Ninth Circuit in San Francisco on Monday, February 9. If successful with the court, this will prevent the plaintiffs, victims of Bush's rendition and torture practices, from any chance of legal redress in US courts.
When hearing about this story, I first I thought that maybe the Department of Justice attorney, Douglas N. Letter, was just not up to speed with the change in administration. Not so. Salon.com reporter, Glenn Greenwald, says the justices were incredulous. He quotes from John Schwartz’s New York Times article, Judge Mary M. Schroeder asked “Is there anything material that has happened” that might have caused the Justice Department to shift its views?
“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. (Emphasis in the original)
This case (Mohamed et al. v. Jeppesen) has already received a lot of press attention, making government claims for the need for secrecy ludicrous. In fact, one of the plaintiffs, Ahmed Agiza, has already received damages from the Swedish government for its small part in the CIA rendition. By any standard, the treatment the plaintiffs allege was outrageous. In the Times’ article Schwartz wrote: “The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, ‘he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.’"
The failure of the Obama administration to follow through on campaign rhetoric and Obama’s now cheapened criticisms of the Bush administration’s excessive secrecy are both shocking and, to me, a great surprise. Sad, too, is what it says to the lawyers and staff of the Department of Justice who thought, prematurely, that their long shameful night had ended.
Anthony D. Romero, executive director of the American Civil Liberties Union, was quoted in an ACLU press release on Monday, saying: "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."
Next to George Bush, Barack Obama is a giant. Next to the constitution and the rule of law, Barack Obama is a peanut. For the sake of developing some humility, he would do well to remember that. For the better protection of our liberties, we’d all do well to remind him.