Two steps forward, one step back

>> Tuesday, February 10, 2009

I can deal with the fact that getting the economy back on track will take time. I can deal with the fact that getting the United States out of Iraq will take time. I can deal with the fact that fixing Afghanistan will also take time. I can deal with the fact that the Bush Administration made a hellacious mess--President Bush's comment last May that, "I'll be long gone before some smart person ever figures out what happened inside this Oval Office," is obviously freighted with its own truth and irony--and that this mess will take time to sort out.

What I'm having a hard time dealing with is the fact that an Obama Department Of Justice lawyer--apparently with approval of higher-ups--held to the Bush Administration's unconscionable position on state secrets in oral argument in San Francisco the other day. I hate to resort to what became a cliché even on the campaign trail, but holding fast to a failed and troublesome Bush Administration policy isn't change I can believe in (and, unlike the conservative parrots who liked chirping that song, I very much want to believe in change--and have been thrilled, at least, to have a President who takes responsibility for his errors and handles press conferences like college lectures).

Here's what the case is about in a nutshell, if you haven't been following: plaintiffs in the case were detained as terror suspects and flown to countries where they were allegedly tortured as part of the Bush Administration's extraordinary rendition program--a program that conceivably could leave present or future Presidential administrations with a legal obligation to prosecute the Bush Administration for war crimes, regardless of the Obama Administration's position that they're not going to do so (and they probably won't--and they'll be violating Federal and international law if they don't). The plaintiffs are now suing a subsidiary of Boeing for scheduling the flights that allegedly led to their human rights being violated; the Bush Administration--and now the Obama Administration--are arguing that the suit should be dismissed outright on the grounds that having a trial would divulge all sorts of things that are supposed to be double top secret.

As Glenn Greenwald writes at Salon, what's radical about the Bush/Obama position (and who'd have thunk to see that slashed construction) isn't the notion that there are state secrets that ought to be protected at trial, but the weird idea that you can't even have the trial at all. There is in fact a traditional way of dealing with alleged state secrets: in camera review by a judge and redaction or exclusion of the super-duper top secret stuff--that is, the judge (who's given a security clearance for the purpose) sifts through the evidence and decides whether or not to release it, generally with a strong presumption in favor of the government. It's not really that unusual to have trials in which state secrets are excluded from evidence, and it's certainly possible that so much evidence will be so secret that the trial can't proceed because a party will be unable to move forward with evidence--but that's not the position the Bush Administration argued, and the Obama Administration is standing by the Bush DOJ brief. This position isn't that some evidence might be excluded, but rather seems to be that the invocation of "state secrets" magically awards a kind of immunity to a civil defendant.

The legal doctrine itself is offensive, but there are two things that make it perverse, in addition. The first is that much of what appears to be "secret" has in fact already appeared in newspapers and magazines. It's actually hard to imagine what hasn't been published already about the renditions program--it's not inconceivable, of course, but the likelihood is that the "secrets" involved are more along the lines of embarrassing details that fill in the blanks of who, exactly, knew what and when, and who signed off on what we know happened (in other words, it's not a secret that Binyam Mohammed was captured in Pakistan, flown to Morocco by a Boeing subsidiary and apparently abused before being sent to Guantánamo Bay; what might be secret is who authorized his transport and torture and how high the authorization ultimately went--matters, incidentally, which might not actually be relevant to the matter of whether Boeing is civilly liable for damages and might be redacted by the trial judge anyway). The second twist is, of course, that President Obama's campaign was critical of the position it now advocates; one might be used to hypocrisy and reneged promises, but that doesn't mean one is happy about it.

While the Administration is conducting a review of the cases in which the doctrine might apply, and is stating that it will only be applied sparingly, the doctrine as it was advanced by the Bush DOJ needs to be abandoned, not inspected. It looked, during the campaign, like Bush's secrets doctrine would be repudiated; indeed, the appellate judges at the hearing were apparently surprised that the Obama DOJ attorney said nothing had changed the government's position--not even the change in leadership.

I am happy with some of the Administration's actions three weeks in, and content to wait where other matters are concerned. But to perpetuate the injustices of the previous eight years is not something to be patient over, or for any of us to abide. The proper thing for the Obama Administration to do is to repudiate the Bush interpretation of the state secrets doctrine, and let the Binyam Mohammed case and others go forward with appropriate safeguards in place to ensure that legitimately secret matters--as opposed to merely uncomfortable and incriminating disclosures--are kept secure.

UPDATE February 10, 2009; 3:58 PM: It seems that some of the super secret information regarding Binyam Mohammed's extraordinary rendition has been reviewed by the British courts, and that the English High Court is considering whether or not to release previously-redacted details of Mohammed's rendition and interrogation that were provided by American officials.

Seems the cat is already a little outside the bag, no?

UPDATE February 10, 2009; 4:45 PM: Concerned readers might also want to read this piece in Harper's by Scott Horton, which provides additional background. I found this paragraph particularly interesting:

The second case [the first being the English High Court case mentioned in the previous update] occurred before an equally distinguished panel of appeals judges on the other side of the world, in San Francisco, California. In that case, four victims of the extraordinary renditions program filed a lawsuit against Jeppesen Dataplan, Inc., of San Jose, California, a subsidiary of Boeing and a principal contractor for the CIA’s renditions-to-torture scheme. Employees of Jeppesen were briefed that they would be operating the extraordinary renditions program for their contractor, the CIA. Several of them then quit, correctly viewing the program as a criminal enterprise likely to lead to criminal investigations and prosecutions. But, strangely, the Justice Department argued that Jeppesen’s focal role in the program, which is a matter of public knowledge, openly reported in the press, fully corroborated by Jeppesen employees, and even the constant subject of complaints from Boeing shareholders over the company’s engagement in criminal misconduct, cannot be examined by the court–because the government says so.

This is what the Obama Administration is protecting?

UPDATE February 10, 2009; 6:44 PM: Sorry for all the updates, but my Canadian attorney/journalist crush Dahlia Lithwick (Dahlia, if you're ever in North Carolina and feeling less-married, call me... please) has posted an excellent and pointed analysis over at Slate.

Lithwick seems to suspect--as do I, I'm afraid--that there's a political subtext to the Obama Administration's position:

Finally, by keeping the worst of the Bush administration's secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that "nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I'm more interested in looking forward than I am in looking backwards." The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

The problem with the political calculation is that if you look at the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Obama Administration has certain legal obligations that can only be ducked if:

  1. What the Bush Administration authorized wasn't torture, or;
  2. The Obama Administration doesn't know what the Bush Administration did, or;
  3. The Obama Administration is justified in breaking the law.

At a minimum, the Obama Administration's obligation is to extradite if asked to do so by a nation with jurisdiction. But the Conventions require the Obama Administration to prosecute if a violation has occurred and they do not extradite (Article 7, Sec. 1: "The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution." (emphasis added)). And that's consistent with the Federal laws prohibiting torture that were enacted to enable American compliance with the Conventions. Here we could potentially get into the murky world of prosecutorial discretion; in this situation, with the exercise of any discretion being a violation of treaty (the law of the land under Article VI of the Constitution) and abrogation of Federal statute, I think you have a strong argument for abuse of discretion and what might generously be called a clusterfuck.

I seem to be channeling Greenwald in this post; I'll try to make this the last "update."


Janiece Murphy Tuesday, February 10, 2009 at 12:29:00 PM EST  

And so, the disillusionment begins.

Perhaps inevitable, but still disappointing.

Nathan Tuesday, February 10, 2009 at 2:49:00 PM EST  

Dude. Give him time to get his stride. He can't just change everything without having a chance to study it all first. Besides, I think you want too much too fast. Weren't you watching the same press conference I was last night? Hell, there was Truth, Justice and Loose Change just pouring out onto my living room floor!


neurondoc Tuesday, February 10, 2009 at 9:16:00 PM EST  


Just sigh.

I didn't want to be disillusioned this quickly.

Jim Wright Wednesday, February 11, 2009 at 2:23:00 PM EST  

I'm not disillusioned at all. I expected it, and to a certain degree understand where Obama is coming from.

A couple of things:

1) Eric is correct regarding in camera trials and classified information (no shit, right? He's a lawyer. I mention this because in my previous, highly classified, government/military career I was involved in, or very familiar with, a number of cases involving prosecutions where a majority of the evidence was highly classified. Remember the Walker case? I had to give a classified deposition. That was fun.). This case can be pursued via normal sanitization means. This process is difficult and expensive, but has been used successfully and repeatedly since the end of the McCarthy

2. I fully understand Obama's reluctance to entertain criminal charges against his predecessor. Ford pardoned Nixon for probably similar reasons - even though it cost Ford the White House (yeah, yeah, amongst other things, I know). As much as I'd love to see Bush, Cheney, Rice, Rumsfeld, and that filthy little goat sodomizing motherfucker, Wolfowitz, and et al in federal pound-me-in-the-ass prison for the rest of their unnatural lives - the trial and prosecution would tear this country apart. Literally. There would be riots to end all riots. There would be death and fire and destruction and reprisals like nothing before. Every secessionist from the AIP to Free Texas would be up in arms. Think about the players - this is precisely what the NeoCons fear, this is precisely what the racists fear - a black liberal president leading black America and the Liberals against conservativegodfearingchristianwhitepeople. I expect the wave of domestic terrorism would far exceed anything we've seen from overseas.

3) As much as it galls me to say it, at the moment I think the best thing for the country is to do exactly what President Obama says, and move on - and I suspect that he is just as galled by it. However, I agree that support for the appalling and dishonorable Bush policies of torture, rendition, and the rest of it is unacceptable. If the trial can't proceed for the reasons outlined, then award the case to the plaintiffs on default and call it a day. I'd go further, if I was these guys, and file a civil rights suit against Bush et all demanding compensation from any post presidential profit he or his administration makes from book sales, lectures, and etc. Seriously, they should file a civil damages suit, ala Ron Goldman's family against O.J. Simpson.

Eric Wednesday, February 11, 2009 at 2:56:00 PM EST  

Jim, I understand President Obama's reluctance, and I agree with you about the likely effects a prosecution would have. The problem is that I really don't think Obama can do nothing and comply with the law. Our treaties are pretty clear--they don't make an exception for politics or domestic tranquility.

Furthermore, the problem with that line of thought isn't that it's untrue, but that it's always true, everywhere: the Somali warlord or Serbian ex-dictator or arrested Iraqi dictator-for-life has (or had, in two of those examples) as much right to say, "I'd like to focus on the future instead of looking back to the past." So what you end up with is the situation (which we already have, frankly) where human rights laws are for poorly-armed countries and "we're concerned by the allegations and will look into them in due time" is for the well-armed or those who it would be inconvenient to invade. It would be better, frankly, not to have international conventions against torture and other crimes against humanity at all if they're going to be superfluous (victors don't need them if they want to hang the vanquished, after all--see WWII) or unenforced.

All that having been said, I don't know that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment necessarily requires trials--the Federal legislation enabling the Convention does, but the Convention itself only seems to require appropriate action by state actors. I have to wonder if a kind of "truth and reconciliation" committee, not unlike the proceedings in South Africa post-apartheid, wouldn't satisfy at least some of our ethical, moral and legal obligations.

And having said that, trials aren't really the immediate issue anyway; as Jim says in his third point (and as I wrote earlier, and as Glenn Greenwald, Dahlia Lithwick and others are currently focusing on), the immediate issue is the Obama Administration's support for the "state secrets" doctrine, which was an evidentiary rule dealing with in camera review that the Bush Administration tried to turn into a pre-emptive nuke that eliminates a plaintiff's access to the courts. The Obama Administration is now, apparently, claiming that their advocacy is merely maintaining status quo until they can review the situation--which is an insult to the collective intelligence: that's what continuances are for, and nobody doubts that the Administration would have been granted one if they needed to review their position (indeed, it appears that the ACLU, on plaintiffs' behalf, suggested that DOJ move to continue the case(!)).

Granted, if the Administration wins their argument advancing the Bush construction, they have a better chance of not having to deal with the war crimes problem at all, since they can more-plausibly bury it. But in that instance, everybody loses; the transparency and ethics that Obama ran on evaporate, future Presidents gain a "because we said so" trump card, those who were harmed by Bush policies never see justice, and we confirm to the rest of the world yet again that laws are only there for the people we can beat up to obey.

Anonymous,  Sunday, September 16, 2012 at 12:19:00 AM EDT  

When the electing in the U.S.?

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