Allison Kilkenny: Unreported

Obama’s War on Terror May Resemble Bush’s in Some Areas

Posted in Afghanistan, Barack Obama, CIA, politics, torture, War on Terror by allisonkilkenny on February 18, 2009

Update: Greenwald has written an excellent companion post to this article. Highly recommended.

Charlie Savage, New York Times

Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.

Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month. (Michael Temchine for The New York Times)

Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month. (Michael Temchine for The New York Times)

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”

These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.

“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”

Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.

But in more recent weeks, things have become murkier.

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”

To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.

But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.

Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.

Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.

Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”

He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”

Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.

 

For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.

Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.

“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”

Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.

The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.

Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”

Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.

“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”

Obama Screws Up So Badly Even the Times Takes Notice

Posted in Barack Obama, CIA, politics, torture by allisonkilkenny on February 11, 2009

New York Times

obama_tiredThe Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.

On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.

Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.

The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

President Obama has taken some important steps to repair Mr. Bush’s damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.

Obama Fails His First Test on Civil Liberties and Accountability — Resoundingly and Disgracefully

Posted in Barack Obama, politics, torture by allisonkilkenny on February 10, 2009

Glenn Greenwald

tortureTwo weeks ago, I 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 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 — 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, evensponsoring 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, 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, Slate‘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 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.  BothThe New York Times and 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 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.  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.

UPDATE III: For those interested, I wrote many times in the past about the origins of the State Secrets Privilege and how the Bush administration’s abuse of it (endorsed by the Obama DOJ today) has been so severe and destructive — see, for instance, here and here.  And see this excellent comment from DCLaw1, explaining yet another reason why the Obama administration’s decision today is such a substantial setback for the cause of restoring our Constitutional framework.

UPDATE IVThe New York Times article by John Schwartz on today’s hearing contains the quotes from the exchange which I described in the Update above:

[A] lawyer for the government, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the panel of 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.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more. 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.

“Thoroughly vetted with the appropriate officials within the new administration”:  that’s about as explicit as it gets.  It will be extremely difficult for even the most loyal Obama followers to deny that this was an active and conscious decision on the part of the Obama DOJ to embrace one of the most extreme abuses of the Bush presidency.  

It isn’t merely that the Obama DOJ is invoking the privilege for this particular case, which contains allegations of torture that are as brutal and severe as any.  That’s bad enough. But worse is that they’re invoking the most abusive parts of the Bush theory: namely, that the privilege can be used to block the adjudication of entire cases (rather than, say, justify the concealment of specific classified documents or other pieces of evidence), and, worse still, can be used to prevent judicial scrutiny even when the alleged government conduct is blatantly illegal and, as here, a war crime of the greatest seriousness.  

They’re embracing a theory that literally places government officials beyond the rule of law.  No minimally honest person who criticized the Bush administration for relying on this instrument can defend the Obama administration for doing so here.

UPDATE V: It’s simply not possible to know any less about an issue than TheAtlantic‘s Marc Ambinder apparently knows about the State Secrets privilege, yet that doesn’t deter him even for a moment from opining pedantically on what happened today.  Not only doesn’t Ambinder have the first idea what the controversy is even about (he defends what the Obama DOJ  did here by arguing that “Obama certainly never promised Americans that he’d declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever” — as though there is anyone who actually believes that), but he has also anointed himself spokesman for Obama-supporting civil libertarians such that he can read their minds and divine why they voted for Obama:  “civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals [sic] (and vice president.)”

Even if it’s true that “civil libertarians” voted for Obama because they believed he and his appointees would “be better stewards of that privilege than President Bush and his attorney generals [sic],” what the Obama DOJ did today — adopt Bush’s abusively broad version of the privilege and then invoke it to shield entire torture and rendition programs from judicial scrutiny — would be the exact opposite of that.  Is it really that difficult for journalists to refrain from pretending that they understand things until they bother to do the most minimal work to make the pretense slightly convincing?

UPDATE VI:  Someone might want to ask The Atlantic‘s resident civil liberties expert and self-anointed spokesman for civil libertarians everywhere, Marc Ambinder, who “Patrick Romero” [sic] is.  Those who want to mock the ACLU’s “outrage” and purport to speak on behalf of civil libertarians might want first to learn who the ACLU’s Executive Director actually is.