Friday, February 13, 2009

Lithwick on "state secrets"

Slate's Dahlia Lithwick has written an excellent article (as she regularly does) about the Obama DOJ's decision to maintain the previous DOJ position on the assertion of the "state secrets" legal theory. Lithwick begins by noting how curious this stance is given what the administration has already done

Obama pledged to close Guantanamo within a year, halted the military commissions there, shut down CIA black sites, and limited interrogation practices to clearly legal methods. His vice president just announced in a major policy speech that "there is no conflict between our security and our ideals"—a line echoing his boss's inaugural address—and reiterated that America and her allies share "a common commitment not only to live by the rules but to enforce them." Obama has tapped for the most senior positions in his Justice Department people who have been outspoken critics of the Bush administration's extreme and secretive arrogation of powers; people like Eric Holder, Dawn Johnsen, Martin Lederman, and David Barron. This, perhaps more than any single action on Obama's part, has signaled how serious he is about capping the last administration's geyser of President-Is-King nonsense.

How then, is it possible that Obama's Justice Department chose to stay the course on one of the most embarrassing legal theories advanced by the Bush administration—the so-called state-secrets privilege? If you're going to cling to any aspect of the "war on terror," wouldn't it make sense to choose a power that could arguably forestall future terror attacks (like coercive interrogation) rather than the utterly bogus argument that courts are not fit to scrutinize government wrongdoing?
She goes from there to summarize the history of the state secrets privelege and the details of the case that the Justice Dept. is asserting it in. That "state secrets" are being asserted is even more absurd given that the details of the case are already generally well known.

Then the article concludes with a number of speculations as to what is motivating this position, most of which are plausible enough on the surface. But this is the one that I find particularly insightful

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.

It's a depressing hypothesis, and one about which I hope to be proved wrong. Blocking the Jeppesen suit from going forward serves no legitimate legal principle, although the political advantages of doing so may turn out to be overwhelming. Of course the Obama administration was supposed to understand the difference between the two.
Given the Democratic party's fear of being branded "partisan" by people who are nothing but partisan and the fact that there are numerous figures in the press who also consider holding top government officials accountable to the law a matter of "partisanship," I find it entirely conceivable that the Obama adminstration is afraid it might actually have to act on Bush administration lawbreaking and suffer the political backlash that will follow from those who either do not care about the rule of law or do not understand it. But at somepoint someone is going to have to point out that the true partisans are those who would excuse Executive lawbreaking consisting of torture, spying on American citizens, and inprisonment without due process and that what we are going to be looking forward to in the future is more lawbreaking if we don't punish lawbreaking. Obama's - and the Beltway's in general - vision of looking forward will become a license for lawlessness, where laws become optional and in which we hope that the person we voted for will decide to follow them.

In a more positive sign, Congress has shown that it might be inclined to take steps to regulate the assertion of this dubious legal principle. Given the Democratic party's history of proclaiming opposition to something and then rolling over for the president in the end, I remain skeptical. But this is all the more reason to pressure your representatives to take a strong stand on this matter.

Update: Scott Horton offers another guess

President Obama has committed to end torture and the extraordinary renditions program, and in light of that the decision to invoke state secrecy in the Binyam Mohamed cases can be understood as implementation of the commitment that Obama has made–and which I support–to grant immunity to intelligence operatives who implemented the Bush Administration’s felonious programs. But the proper price of immunity in these cases is a full and fair accounting for what happened and an appropriate system for compensating those who suffered torture and mistreatment. Canada already approached this issue in a fair and dignified manner in dealing with the claims of Maher Arar, another victim of a Bush Administration rendition to torture. Using state secrecy claims to cloak criminal conduct without any acknowledgment of the misconduct that occurred is a bad, even criminal, idea. It can only bring the government itself into disrepute and will serve to undermine the nation’s security and respect for state secrets.
If you read the rest of Horton's post, see if you find this a compelling reason to deny men kidnapped to foreign countries to be tortured access to the courts. I do not, not least of which because I am opposed to the use of "state secrets" as a tool to grant immunity by presidential fiat.

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