Friday, February 20, 2009

Obama Lawyer Follows Bush Administration Argument For State Secrets

The Obama administration recently surprised a panel of federal appeals judges when  a government lawyer, Douglas N. Letter, made an argument for the preservation of state secrets–an argument first made by the Bush administration.

Mr. Letter was responding to a case involving allegations of extraordinary rendition, the practice of sending detainees to other countries that practice torture. The case involves Binyam Mohamed, a native of Ethiopia, and four other detainees, who accuse a subsidiary of Boeing of arranging lights for the Bush administration for the very purpose of extraordinary rendition. Mr. Mohamed claims that he was beaten and tortured in Morocco. The case is outlined in the video above.

The legal representative of the Obama administration carried forward the Bush administration's claim that the case should be dismissed since it involves state secrets that, if revealed, could harm national security. Judges on the United States Court of Appeals for the Ninth Circuit were startled by the fact that the administration is continuing this policy:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

American Civil Liberties Union executive director Anthony D. Romero  issued a critical statement:

"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. 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..."

Former constitutional law and civil rights litigator Glenn Greenwald wrote that state secrets can be invoked regarding specific pieces of information; the problem comes when the government decides to dismiss an entire case, opening the door to legal abuse:

Nobody -- not the ACLU or anyone else -- argues that the State Secrets privilege is inherently invalid. Nobody contests that there is such a thing as a legitimate state secret...

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security...

...It doesn't take much time or energy to understand why that instrument is so pernicious. It enables a Government to break the law -- repeatedly and deliberately -- and then block courts from subjecting its behavior to any judicial accountability, and prevent the public from learning about the lawbreaking, by claiming that its conduct generally is too secret to allow any judicial review. 


TexasCowboy said...

I am a big Obama supporter, I applaud his proactive initiatives in dealing with the horrific cards Bush left him. That being said, I certainly do not support the action by Eric Holder on maintaining the secrets initiated under Bush. How can America ever criticize China or any other country re: human rights when we clearly violate them ourselves. Pure hypocrisy.

Jeff Tone said...

Texas Cowboy: While Obama's initiatives to end torture and close Guantanamo are to be applauded, this recent administration stance on state secrets was quite disturbing. It does indeed diminish our moral authority.

inner said...

Same owners, different manager. The Obama deception.

Jeff Tone said...

Inner: In this case, there's an uncomfortable resemblance. But Obama has reversed quite a number of Bush policies. I certainly don't think we can say they're the same. See my recent post: