Allison Kilkenny: Unreported

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.

Add Up The Damage

Posted in Uncategorized by allisonkilkenny on December 30, 2008

Bob Herbert

15_bush_shoes_3Does anyone know where George W. Bush is?

You don’t hear much from him anymore. The last image most of us remember is of the president ducking a pair of size 10s that were hurled at him in Baghdad.

We’re still at war in Iraq and Afghanistan. Israel is thrashing the Palestinians in Gaza. And the U.S. economy is about as vibrant as the 0-16 Detroit Lions.

But hardly a peep have we heard from George, the 43rd.

When Mr. Bush officially takes his leave in three weeks (in reality, he checked out long ago), most Americans will be content to sigh good riddance. I disagree. I don’t think he should be allowed to slip quietly out of town. There should be a great hue and cry — a loud, collective angry howl, demonstrations with signs and bullhorns and fiery speeches — over the damage he’s done to this country.

This is the man who gave us the war in Iraq and Guantánamo and torture and rendition; who turned the Clinton economy and the budget surplus into fool’s gold; who dithered while New Orleans drowned; who trampled our civil liberties at home and ruined our reputation abroad; who let Dick Cheney run hog wild and thought Brownie was doing a heckuva job.

The Bush administration specialized in deceit. How else could you get the public (and a feckless Congress) to go along with an invasion of Iraq as an absolutely essential response to the Sept. 11 attacks, when Iraq had had nothing to do with the Sept. 11 attacks?

Exploiting the public’s understandable fears, Mr. Bush made it sound as if Iraq was about to nuke us: “We cannot wait,” he said, “for the final proof — the smoking gun that could come in the form of a mushroom cloud.”

He then set the blaze that has continued to rage for nearly six years, consuming more than 4,000 American lives and hundreds of thousands of Iraqis. (A car bomb over the weekend killed two dozen more Iraqis, many of them religious pilgrims.) The financial cost to the U.S. will eventually reach $3 trillion or more, according to the Nobel laureate economist Joseph Stiglitz.

A year into the war Mr. Bush was cracking jokes about it at the annual dinner of the Radio and Television Correspondents Association. He displayed a series of photos that showed him searching the Oval Office, peering behind curtains and looking under the furniture. A mock caption had Mr. Bush saying: “Those weapons of mass destruction have got to be somewhere.”

And then there’s the Bush economy, another disaster, a trapdoor through which middle-class Americans can plunge toward the bracing experiences normally reserved for the poor and the destitute.

Mr. Bush traveled the country in the early days of his presidency, promoting his tax cut plans as hugely beneficial to small-business people and families of modest means. This was more deceit. The tax cuts would go overwhelmingly to the very rich.

The president would give the wealthy and the powerful virtually everything they wanted. He would throw sand into the regulatory apparatus and help foster the most extreme income disparities since the years leading up to the Great Depression. Once again he was lighting a fire. This time the flames would engulf the economy and, as with Iraq, bring catastrophe.

If the U.S. were a product line, it would be seen now as deeply damaged goods, subject to recall.

There seemed to be no end to Mr. Bush’s talent for destruction. He tried to hand the piggy bank known as Social Security over to the marauders of the financial sector, but saner heads prevailed.

In New Orleans, the president failed to intervene swiftly and decisively to aid the tens of thousands of poor people who were very publicly suffering and, in many cases, dying. He then compounded this colossal failure of leadership by traveling to New Orleans and promising, in a dramatic, floodlit appearance, to spare no effort in rebuilding the flood-torn region and the wrecked lives of the victims.

He went further, vowing to confront the issue of poverty in America “with bold action.”

It was all nonsense, of course. He did nothing of the kind.

The catalog of his transgressions against the nation’s interests — sins of commission and omission — would keep Mr. Bush in a confessional for the rest of his life. Don’t hold your breath. He’s hardly the contrite sort.

He told ABC’s Charlie Gibson: “I don’t spend a lot of time really worrying about short-term history. I guess I don’t worry about long-term history, either, since I’m not going to be around to read it.”

The president chuckled, thinking — as he did when he made his jokes about the missing weapons of mass destruction — that there was something funny going on.