State Secrets

Posted on 02/12/2009 at 8:41 am by Bob Cesca

Despite the flurry of promising executive orders, this story is a more than a little disturbing. In short, the Obama Justice Department invoked state secret priviledges in the case of a man who claims to have been brutally tortured in a Bush administration black site dungeon.

Admittedly, I haven’t been following it due to the chaos of the recovery bill, but now that I’m taking a look, my first reaction is: WTF? My second reaction is: It had better be a huge state secret they’re protecting, because this looks terrible.

However, I think we’ll rapidly discover that the Obama administration will invoke this priviledge far less often than the Bushies. Significantly less often. It’s no excuse, but yeah. I’d also like to hear from the president on this. Naturally, he can’t discuss specifics, but in a general sense, is this an extreme exception for the new administration? Or is it a policy shift?

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  • GItheJOE

    Please excuse my ignorance, but what the hell is a State Secret? I know the google would tell me but I feel you have an answer at the low ready to unload upon the GDAB.

  • http://unrelatedcontent.com Travis D

    Glad you’re covering this, some bloggers feel it’s more important to get into slap fights with syndicated columnists than to report of stuff like this.

  • Meadows

    There is no excuse for doing this EVER! I don’t care if Obama’s administration does it even one time, it’s still a tactic used by little people who live in fear of the rules we, the people, have established. I’m extremely saddened by Obama’s use of such a despicable tactic and I hope he reverses the DOJ immediately.

  • http://annette-justmylittlepieceoftheworld.blogspot.com/ Annette

    What no one is saying in any of this is if you look at the atty in question.. Greg Letter.. he is a hold over from the Bushies.. Also Holder has only been on the job a few days…the VERY FIRST thing he did was ask that ALL cases be put on hold and this one was NOT.. why I don’t know…either this Bush holdover didn’t get the memo..or ignored the memo to ask for a delay until Holder or someone HE trusts could review the files. I have only seen this reported in ONE story…all the rest put that down..It’s kind of like the fact that Lynn being asked for by Bob Gates gets shoved down into the weeds by the media so they can point out that Pres. Obama is breaking his word on the lobbying situation. This was not Pres. Obama’s choice..it was Bob Gates’ choice and Gates is the one that asked for the waiver…but NO ONE stresses that factoid…they would rather just blame our President.

  • http://nanotyrnns.blogspot.com/ Nanotyrannus

    The real question is whether they are using the states’ secrets privilege to actually protect states’ secrets or to cover up wrong-doing. We really have to trust the administration, and that’s dicey. As much as I want to trust Obama on the subject, a cover-up of law breaking can start pretty low on the food chain and not be noticed for years by the top tiers of the administration.

  • MatthewN

    However, I think we’ll rapidly discover that the Obama administration will invoke this priviledge far less often than the Bushies. Significantly less often.

    Unacceptable. Period.Greenwald has an excellent post up about this issue. The use of “state secrets” to keep a document from being entered into eveidence is one thing. Using it to cancel an entire lawsuit is something else.Apparently some of the big Dems in congress are reintroducing a bill to limit this practice.Good for them.Checks and balances…

  • http://www.windonwater.net QueenTiye

    Well, I’ll be on a one woman crusade here, until proven wrong.There are a couple of issues with this, and I think we ought to take this isolated decision, and put it back in context of the executive order the president signed into law, here: http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/

    (e) Mission. The mission of the Special Task Force shall be:(ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

    That quote is from Section 5.e.ii of the executive order. (Where’s the chill out sign when you need it?)The taskforce established was given 6 months to do its work. Because this is a civil case, the Obama administration has the latitude to simply refuse to participate until such time as it has its ducks in a row about what to do with this issue. That’s what they’ve done. They aren’t ready to deal with the issue, and so, they aren’t dealing with the issue.One last thing. Even if the government is covering up lawbreaking – the fact is that the administration has been rather shaky on the issue of exposing lawbreaking on the part of the former administration all along. Obama hasn’t signed off on even a “Truth and Reconciliation” commission.I think people are forgetting the relative conservatism of the office of the president. If Bush were actually accused of wrongdoings – we could probably expect Obama to pardon him. We may not like it, but presidents protect the office of the presidency. Go back and read Obama’s statements about Bush since being elected, and you’ll see this protectionism at work. EVERY president has done this – Bush II may have been the closest thing to an exception. If you think about the scope of “Commander in Chief” you can figure out why this is the case – doesn’t mean you have to like it, but if you’ve lived long enough to watch more than one transition – you’ll know that on security matters, presidents back each other up, even while changing policy.In short – I think this is probably a little bit of a black eye the administration took because it had to, but we’ll see over the next few months what the actual policy will be.QT

  • rick390

    This is not the “transparency” in government that Obama promised. Extremely disappointing!Also, on a different tack when is he going to sit the head of the DEA down and have a come to Jesus meeting. The DEA is totally tone-deaf. Didn’t they hear the President say that marijuana enforcement was to be a low priority. That doesn’t mean raiding every medical marijuana dispensary in the state of California.I guess they just don’t get it.

  • MatthewN

    QT,I have to disagree on this one. The section you quoted seems to deal with how to handle this issue moving forward.What relevence does “how we’ll do things from now on” have on actions that have already occured?This man had his case summarily dismissed, not continued until the Obama administration decides how it’s going to handle renditions.

  • http://www.windonwater.net QueenTiye

    I’ll also post this link from Marc Ambinder, who’s doing some reportingon the issue: http://politics.theatlantic.com/2009/02/on_state_secrets_why_didnt_the_admin_seek_a_continuance.phpAlso, from the article Bob linked to, this quote:

    What the A.C.L.U. is asking, he said, is that the case be allowed to go forward, giving the courts a chance to decide, based on classified information revealed solely to the judge, what should be allowed to be discussed.But Mr. Letter said that the lower court judge, James Ware, did receive classified information and came to the correct conclusion in dismissing the case last year. He urged the judges to pore over the same material, and predicted “you will understand precisely, as Judge Ware did, why this case can’t be litigated.”

    We aren’t privy to the information, but apparently Bush’s lawyers, a judge, and now Obama’s lawyers have all reviewed the case and concluded that the case simply can’t be tried without revealing state secrets.QT

  • http://www.windonwater.net QueenTiye

    MatthewN – right, the case has been summarily dismissed. Apparently something about the information that is material to the trial, also constitutes state secrets – and that determination has now been made three separate times. The Obama administration is now urging the judge to review the classified information again, ust as the first judge did, and draw his or her own conclusions – they are betting that this judge will ALSO dismiss the case.My reason for posting the executive order is that I’ve seen all sorts of knee jerk reactions claiming that after all, Obama really wasn’t changing anything – that this decision means that he approves extraordinary rendition, etc. It does not. It means that this case, for reasons we don’t know, but which have now been vetted three times, can’t be tried.QT

  • http://h-oh-l.blogspot.com 0whole1

    You know, I get the feeling that Obama used the state secrets thing *in order to get it shot down in the courts* — in other words playing to lose, so that there’ll be precident made on limiting executive power in the courts.That just me saying stuff though.

  • Jeff

    I’ve also heard they simply haven’t had time to look over everything and make a decision yet. The guy from the ACLU was on Rachel Maddow the other night and said while they were upset with the Obama’s position on this, the administration is already light years ahead of Bush’s on human rights, but this case is about accountability and Obama seems to not want to hold Bush accountable for anything. He’s only focused on moving forward.I totally understand Obama’s position on that. As much as I enjoy the idea of Cheney rotting in prison for however many few years he has left before his eternity in hell, Obama just wants to turn the page.

  • SillyGit

    Sometimes, there really are State Secrets that need to be protected.QT has made the case that this is one of them.Since 2 different judges *and* Obama’s legal counsel say that this is one of those cases, I’ll have to trust their opinion.

  • http://www.osborneink.com Matt Osborne

    I strikes me that QT has one important fact on her side: Obama is a Constitutional Law professor.

  • MatthewN

    Again,I have to disagree.I don’t think the lower court judge got to see anything either. I know the appeals court judges didn’t.That’s the whole problem.A suit is brought, the DOJ swoops in, claims state secrets, and the case gets dropped.QT, I would love to see something that said the judges had reviewed / were reviewing classified information before / while making these decisions.That would be beautiful, but I don’t think that’s what’s happening.Nothing is reviewed, the plaintiffs don’t get to decide whether they want to go ahead and try to make their case without specific classified documents, etc.State Secrets is claimed… case is dismissed. Period.Sen Kennedy spoke about this when he introduced a bill to end this practice.

    In that case, there was extensive evidence in the public record that the plaintiff was kidnapped and tortured by the CIA on the basis of mistaken identity, but the court simply accepted at face value the government’s claim that litigation would require disclosure of state secrets. The court dismissed Mr. El-Masri’s case without even evaluating the evidence or considering whether the case could be litigated on other evidence.

    So the claim that judges decided this multiple times based on evidence they reviewed is false.Nobody but the DOJ is making this determination, and judges accept their word.And that’s dangerous.

  • MatthewN

    QT,I missed your Letter quote.Looks like I was wrong on the lower court judge.I should read more closely.But there is enough public information available about what happened to these people that it seems they could have made a go at making their case even without classified documents.The ACLU lawyer points out that the entire claim of “state secrets” in this case is based on two sworn declarations from CIA Director Michael Hayden. 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 Obama, in his first week in office, ordered shall no longer exist.So…?

  • http://www.windonwater.net QueenTiye

    Obama has not ordered that renditions shall not exist. He has ordered that renditions will be studied over the next 6 months, and that in any case, any renditions must be maintained under the same laws and treaties as any other detainee situation. Which is why I quoted the executive order and stated that this case has to be put in context. Renditions as a practice is unlikely to go away – after all, it’s been done since the Clinton era. More likely, under Bush, with his administration’s anything-goes attitude, the practice lent itself to being abused, but that doesn’t mean that the practice in and of itself is abusive or violative of any laws or treaties.QT

  • MatthewN

    …that doesn’t mean that the practice in and of itself is abusive or violative of any laws or treaties.

    Sounds like a great issue for a court to decide, doesn’t it? After all, federal courts not the executive branch “enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases.”

  • http://www.windonwater.net QueenTiye

    Well – yeah, but there’s a tension here, because the President is still commander in chief. I’m hopeful that Congress goes forward with their plan to introduce legislation checking the president’s authority to invoke “State secrets” – I trust Obama on this one, but an executive order is easily overturned by the very next president, so I’d like to see some legal structure that insists upon state secrets being defended by a judge. In this case, a judge has already looked at the evidence, and ruled out the case going to trial. And Obama’s team looked over the case, and concurred. And – recommended that the judge do the same, because they expect that the judge will also concur. The administration’s attitude about the case leads me to believe that it’s the real deal – there are state secrets at jeopardy.That said – this is a civil trial,and the question of the legality of rendition as a practice doesn’t seem to be the central question of the case. If it is, I stand corrected, but the central issue of this case seems to be torture – and rendition to enable it. Rendition as its own practice is not the material subject of the case, and someone would have to bring a case to say that rendition is unconstitutional or otherwise against the law. That, so far as I can tell, isn’t what’s happening here.QT

  • MatthewN

    I’m not saying that there’s no such thing as a state secret.I have no problem with the exclusion of specific evidence because a state secret is involved.I have a real serious problem with an entire case being summarily dismissed because the DOJ cites “state secrets”. Having absolutely no legal right of recourse is not good. That’s why we get all excited about Habeus Corpus too.

  • http://www.windonwater.net QueenTiye

    Well – I’m not so much opposing you, MatthewN, as much as making sure that we get the argument right in the first place. It’s a pet peeve of mine to watch partisan arguments go chasing after tangents that are easily dismissed.I’m laying out the facts, and it may be that we will look down the road and conclude that Obama is actually doing a bad thing here. But let’s make sure we’re looking in the right place first. I don’t like the idea that the case has to be entirely dismissed – but even there – let’s be careful. The case was dismissed because it could be – it’s only a civil case. This would be different in a criminal case – the government has a lot less latitude.QT

  • ceu

    There’s a difference between rendition and extraordinary rendition.

  • SillyGit

    Please do not confuse or equate ‘rendition’ with ‘extraordinary rendition’ (exrendition). I think your discussion is about exrendition.The Reich Wingers have been using the confusion over the two as a way to criticize Obama. Let’s not contribute to the confusion.QT has a good handle on the facts and Matthew’s comments are all valid. I’ll just clear up the rendition confusion and leave it at that.Rendition is a legal term and has been around nearly forever. The word rendition refers to the part of the extradition process at which the subject of rendition is surrendered to officials of the court (or nation) that wants to try the subject.The President can’t make rendition go away if he wanted to. Rendition is part of every extradition treaty we have and is wired into international law that we have committed to uphold.Extraordinary rendition (exrendition) is a horse of a different color. I think this is some hooky crap that we came up with. I don’t think that there are treaties on this totally lacking in due process abortion that really should be called kidnapping since that is what it is.As QT mentioned this was devised while Clinton was president. There were terrorists we wanted to ‘talk’ to that we know would disappear if we followed the proper extradition process. So they came up with exrendition. Basically we send some ‘operatives’ in to grab the subject and bring them back. This is how it was used under Clinton and several terrorists are now imprisoned that we grabbed, tried, and convicted using extraordinary rendition to ‘arrest’ the subject.Under Bush, this evolved into completely throwing out all legal processes and we kidnapped people, shipped them to foreign countries that allow torture, or shipped them to Gitmo so that we could torture them ourselves.Rendition is a normal legal process.Extraordinary Rendition is a travesty of justice.I think you see why I find the confusion disturbing. The name was chosen to make an illegal act sound legal. It is not legal anywhere since extraordinary rendition is in direct violation of international law.If they had called it kidnapping, which is what it is, it would have been obviously illegal. They gave it a name that makes it sound OK. It is not.

  • http://www.windonwater.net QueenTiye

    ^^Thanks for that explanation of rendition, SillyGit. That was REALLY helpful, as I don’t think I understood the difference between rendition and what Clinton was doing.From the looks of it- Obama is looking to salvage the Clinton model – and probably put some legal constraints around the process, so that the Bush model doesn’t happen again. I can see where that would make some squeamish – but this is a case where I think that terrorism is going to call for new war tactics – because it is a war tactic that is different from what we experience with regular militaries. Getting this right legally – would be a big boon for the military trying to fight terrorists.QT

  • SillyGit

    QT -You are very welcome.I did not make my position on extraordinary rendition very clear. I am uncomfortable with extraordinary rendition in any form, however, I am not opposed to extraordinary rendition as it was used under Clinton and therefore do not object to it being salvaged under Obama provided that appropriate limitations are applied. E. R. should be a last resort. The normal extradition legal process should be used whenever possible.There is a *huge* difference between kidnapping someone to bring them to trial defended by council and kidnapping someone to hold them indefinitely without habeas corpus, trial, or legal council *and* the possibility of ‘enhanced interrogation’.I think we are in agreement again.I was delighted with the comments from you and Matthew. Between the two of you this topic was developed rather thoroughly and I saw no need to add anything other than clearing the rendition confusion. You both contributed things that I was previously unaware of. Thank you both.