Holder and Obama State Secrets Doctrine Continue

>> Tuesday, February 10, 2009

Something that has made waves among the legal and civil libertarian blogosphere is the Obama administrations continuation of the State Secrets Doctrine. The doctrine was created as a means to shield things the government did not want the public from plaintiffs in lawsuits. As with everything else the Bush Administration took this powerful secrecy tool to the next level. There was a great hope that the Obama administration would curtail the practice. Things like this seemed to feed the hope,

"The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that is being invoked only in legally appropriate situations," Justice Department spokesman Matt Miller said yesterday.

"It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller said.

Yay right? Well not so much.

"In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration's "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantanamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

"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.

Judge Schroeder asked, "The change in administration has no bearing?"

Once more, he said, "No, Your Honor." 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.

What are we to make of this? Holder promised a review and apparently such a review was conducted here and it produced the same result as under Bush. Clearly then this must be a truly clear cut case for total secrecy. Again, not so much.

"A British 'resident' held at Guantanamo Bay was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon, it was revealed last night.

Binyam Mohamed, a former UK asylum seeker, admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.

It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist."

That this case was reviewed and the government felt compelled to maintain the same arguments is a horrifying indicator. The general problem is that there is seemingly an underlying need for a variation of the doctrine. As it was originally envisioned it was meant to keep select documents out of evidence because to reveal them would severely harm national security. While in theory this is a well founded doctrine in practice it has always been abused. The case that created it was in fact a government cover up. Glenn Greenwald has detailed the congressional efforts at reform here.

If we are going to have a doctrine of this nature it needs to be codified in law with clear intent and no wiggle room for the president. Some pieces of evidence maybe but entire cases? no. Even the government needs to be accountable to its people and embarrassment is no reason to deny justice.


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