[Ppnews] The Obama DOJ today embraced one of the most abused Bush weapons
Political Prisoner News
ppnews at freedomarchives.org
Mon Feb 9 17:59:52 EST 2009
http://www.salon.com/opinion/greenwald/2009/02/09/state_secrets/print.html
Obama fails his first test on civil liberties and accountability --
resoundingly and disgracefully
The Obama DOJ today embraced one of the most abused Bush weapons --
the "state secrets" privilege -- in order to block torture and
rendition victims from their day in court.
Glenn Greenwald
Feb. 09, 2009 |
(updated below - Update II)
Two weeks ago, I
<http://www.salon.com/opinion/greenwald/radio/2009/01/30/wizner/>interviewed
the ACLU's Ben Wizner, counsel to 5 individuals suing the subsidiary
of Boeing (Jeppesen) which had arranged the Bush administration's
rendition program, under which those 5 plaintiffs had been abducted,
sent to other countries and brutally tortured. Today the Obama
administration was required to file with the Ninth Circuit Court of
Appeals its position in this case -- i.e., whether it would continue
the Bush administration's abusive reliance on the "state secrets"
privilege to prevent courts from ruling on such matters, or whether
they would adhere to Obama's previous claims about his beliefs on
"state secrets" by withdrawing that position and allowing these
victims their day in court.
Yesterday, enthusiastic Obama supporter Andrew Sullivan
<http://andrewsullivan.theatlantic.com/the_daily_dish/2009/02/the-strange-dis.html>wrote
about this case: "Tomorrow in a federal court hearing in San
Francisco, we'll find out if the Obama administration intends to keep
the evidence as secret as the Bush administration did." As I wrote
after interviewing Wizner two weeks ago: "This is the first real
test of the authenticity of Obama's commitment to reverse the abuses
of executive power over the last eight years." Today, the Obama
administration failed that test --
<http://blogs.abcnews.com/politicalpunch/2009/02/obama-administr.html>resoundingly
and disgracefully:
Obama Administration Maintains Bush Position on 'Extraordinary
Rendition' Lawsuit
The Obama Administration today announced that it would keep the same
position as the Bush Administration in the lawsuit Mohamed et al v
Jeppesen Dataplan, Inc.
A source inside of the Ninth U.S. District Court tells ABC News that
a representative of the Justice Department stood up to say that its
position hasn't changed, that new administration stands behind
arguments that previous administration made, with no ambiguity at
all. The DOJ lawyer said the entire subject matter remains a state secret.
This is not going to please civil libertarians and human rights
activists who had hoped the Obama administration would allow the
lawsuit to proceed.
The ACLU's Wizner said this:
We are shocked and deeply disappointed that the Justice Department
has chosen to continue the Bush administration's practice of dodging
judicial scrutiny of extraordinary rendition and torture. 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.
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.
What makes this particularly appalling and inexcusable is that Senate
Democrats had long vehemently opposed the use of the "state secrets"
privilege in exactly the way that the Bush administration used it in
this case, even
<http://washingtonbriefs.blogspot.com/2008/04/state-secrets-bill-makes-progress.html>sponsoring
legislation to limits its use and scope. Yet here is Obama, the very
first chance he gets, invoking exactly this doctrine in its most
expansive and abusive form to prevent torture victims even from
having their day in court, on the ground that national security will
be jeopardized if courts examine the Bush administration's rendition
and torture programs -- even though (a) the rendition and torture
programs have been written about extensively in the public record;
(b) numerous other countries have investigated exactly these
allegations; and (c) other countries have provided judicial forums in
which these same victims could obtain relief. As Wizner said:
For one thing, the idea you alluded to, the facts of this story are
absolutely well-known, have been the front pages of the New York
Times and Washington Post, are in books, and all of these stories are
based on CIA and other government sources, that essentially said,
well, in this case we got the wrong guy. So the position of the Bush
administration, accepted by conservative judges in that case, really
the only place in the world where Khalid El-Masri's case could not be
discussed was in a federal courtroom. Everywhere else it could be
discussed without harm to the nation, but in a federal court before a
federal judge there, all kinds of terrible things could happen.
Despite that, the new President -- who repeatedly condemned the
extreme secrecy of the Bush administration and vowed greater
transparency -- has now acted to protect, purely on secrecy grounds,
the government and company that did this,
<http://www.salon.com/opinion/greenwald/radio/2009/01/30/wizner/index1.html>as
Wizner described:
They were essentially the CIA's torture travel agents. They were the
one who arranged all the overflight rights for the CIA civilian
planes to be able to fly from country to country. They handled the
security and the logistics. They filed dummy flight plans to try to
trick air traffic controllers into not being able to track where the
actual flights were going. And we know they knew what they were doing
because we have a witness in our case, someone who's given us a sworn
declaration, who was an employee of Jeppesen DataPlan, and who was
present when senior officials of the company were openly boasting
about their role in the torture flights, and about how much money
they made from them because the CIA spared no expense.
We were able, with the help of an investigative journalist and other
documentary evidence, to link Jeppesen to an number of very specific
CIA rendition flights, involving these five torture victims who were
flown to countries like Egypt, Morocco, to CIA sites in Afghanistan
and eastern Europe. . . .
[Plaintiff Ahmed Agiza] was picked up off the streets of Stockholm
and then he was taken to an airport where a CIA rendition team--this
is a bunch of men dressed all in black, with their faces
covered--sliced off all of his clothes, put a suppository into him,
chained him to the floor of an airplane, flew him to Egypt, where he
was exposed to absolutely brutal torture, including shock treatment,
all kinds of beatings. He was then given a show trial in an Egyptian
military court and sentenced to 15 years for involvement in a banned
organization.
His has been an extremely well-documented case; it's been in books by
Seymour Hersh and others. The UN has investigated this; the Swedish
government has investigated this case.
In fact, just a couple of months ago, the Swedish government agreed
to pay Ahmed Agiza $450,000 for its secondary role in the CIA's
rendition of Agiza to Egypt. So there's no real secret involved here.
Nothing would be revealed by allowing Agiza to go forward in a case
against the CIA, because Jeppesen's role is public, because Sweden's
role is public, and because Egypt's role is public--he's in an
Egyptian prison right now.
That's what Barack Obama is now shielding from judicial
scrutiny. Those are the torture victims he is preventing from
obtaining judicial relief in our courts. And he's using one of the
most radical and destructive tools in the Bush arsenal -- its wildly
expanded version of the "state secrets" privilege -- to accomplish
all of that dirty work. I've been as vigorous a proponent as anyone
for waiting to see what Obama does before reaching conclusions about
his presidency, but this is a very real and substantial act, and it's
hard to disagree with what ACLU Executive Director Anthony Romero said today:
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. 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.
Secrecy generally, and the state secrets privilege particularly, was
the linchpin of the civil liberties abuses and constitutional
radicalism of the last eight years. At the end of 2006,
<http://www.slate.com/id/2156397/>Slate<http://www.slate.com/id/2156397/>'s
Dahlia Lithwick listed the Bush administration's "10 most outrageous
civil liberties violations" and it included this:
6. The State-Secrets Doctrine
The Bush administration's insane argument in court is that judges
should dismiss entire lawsuits over many of the outrages detailed on
this very list. Why? Because the outrageously illegal things are
themselves matters of top-secret national security. The
administration has raised this claim in relation to its adventures in
secret wiretapping and its fun with
<http://www.slate.com/id/2142155/>extraordinary rendition. A
government privilege once used to sidestep civil claims has
mushroomed into sweeping immunity for the administration's sometimes
criminal behavior.
That the Obama DOJ -- when faced with its first real test to
determine what it intends to do in these areas (as opposed to
engaging in symbolic rituals and issuing pretty words) -- explicitly
adopts exactly the Bush position is about as inauspicious a start in
these areas as one can imagine.
UPDATE: I just spoke with Wizner about today's court hearing. It's
really remarkable what happened. One of the judges on the
three-judge panel explicitly asked the DOJ lawyer, Doug Letter,
whether the change in administrations had any bearing on the
Government's position in this case. Letter emphatically said it did
not. Instead, he told the court, the new administration -- the new
DOJ -- had actively reviewed this case and vetted the Bush positions
and decisively opted to embrace the same positions.
There's no doubt about that. Wizner pointed out that after the
interview he did with me 10 days ago, there was substantial press
coverage of this matter. Both
<http://www.nytimes.com/2009/02/05/opinion/05thu1.html>The New York
Times and
<http://www.latimes.com/news/printedition/asection/la-ed-secrets7-2009feb07,0,4504944.story>The
Los Angeles Times wrote editorials in the last week demanding that
the Obama administration adhere to its prior pledge and abandon the
Bush administration's reliance on "state secrets" in this
case. Wizner said that reporters calling the DOJ were told that the
case was under active review. This was an active, conscious decision
made by the Obama DOJ to retain the same abusive, expansive view of
"state secrets" as Bush adopted, and to do so for exactly the same
purpose: to prevent any judicial accountability of any kind, to keep
government behavior outside of and above the rule of law.
Finally, Wizner noted one last fact that is rather remarkable. The
entire claim of "state secrets" in this case is based on two sworn
Declarations from CIA Director Michael Hayden -- one public and one
filed secretly with the court. In them, Hayden argues that courts
cannot adjudicate this case because to do so would be to disclose and
thus degrade key CIA programs of rendition and interrogation -- the
very policies which <http://www.msnbc.msn.com/id/28788175/>Obama, in
his first week in office, ordered shall no longer exist. How, then,
could continuation of this case possibly jeopardize national security
when the rendition and interrogation practices which gave rise to
these lawsuits are the very ones that the U.S. Government, under the
new administration, claims to have banned?
What this is clearly about is shielding the U.S. Government and Bush
officials from any accountability. 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.
UPDATE II: There wasn't a more enthusiastic Obama supporter during
the campaign than Andrew
Sullivan.
<http://andrewsullivan.theatlantic.com/the_daily_dish/2009/02/the-binyam-moha.html>Here
is what he wrote just now:
The Obama administration will continue the cover-up of the alleged
torture of the British resident. The argument is that revealing the
extent of the man's torture and abuse would reveal state secrets. No
shit. This is a depressing sign that the Obama administration will
protect the Bush-Cheney torture regime from the light of day. And
with each decision to cover for their predecessors, the Obamaites
become retroactively complicit in them.
So what are they hiding from us? Wouldn't you like to know?
There is no viable excuse, or even mitigation, for what they did here.
-- Glenn Greenwald
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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