Monday, February 9, 2009

Obama Reneges on Justice for Torture Victims, Embraces Bush Secrecy Doctrine

Today, new Attorney General Eric Holder's Justice Department embraced Bush administration claims of "state secrets" in the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. Jeppesen's involvement in the "torture flights" of an undetermined number of terror suspect abductees, making a tidy profit for themselves in the meantime.

The New York Times reported on how the deal went down in San Francisco earlier today:
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 Guantánamo 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.
Even the judges seemed surprised by the government's seeming apostasy from its previous public proclaimations about openness.

It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.

Justice Department spokesman Matt Miller shook off criticisms of the government's actions:
"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. This administration will be transparent and open, consistent with our national security obligations," Miller said.
Meanwhile, ACLU executive director Anthony Romero had a few choice words for the administration:
"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."
Barack Obama has gotten quite a free ride from the "change" and "hope" crowd. When he quickly issued executive orders closing the CIA "black site" prisons and shutting down the CIA's "enhanced interrogation" torture, including waterboarding, much of the liberal and human rights world shouted, "Torture is over." Guantanamo would be closed (within a year), and the whole world could rest easy that the humane and totally vetted Army Field Manual would guide interrogators and protect vulnerable prisoners from the brig at the Naval Base at Charleston, South Carolina to the U.S. run prison at Baghram Air Base in Afghanistan.

Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."

But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.

Yesterday, I wrote this:
Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documentation secret.
This is almost exactly the same point Ben Wizner of ACLU made to Glenn Greenwald, regarding the claims of state secrets in the Jeppesen case:
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?
The question is, of course, rhetorical in nature, because I think only the blind do not know the answer to that.

It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.

This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.

What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?


Anonymous said...

I am thoroughly disgusted by Obama. He's turned out to be just another neocon, the only difference between him and Bush is that Obama's better at reading his speeches.

Hope and change my fucking ass!

I've ripped the Obama bumper sticker off my car and unsubscribed from his mailing list, and I'll be making the "pledge" to be a "servant to my president" when hell freezes over.

Anonymous said...

How do we entertain the notion that the government can just say "state secrets" and get the case dismissed outright? Assuming it does not lead to abuse, shouldn't the proper response of a court if the government asserts the state secrets privilege to enter a default judgment against the government and grant the remedy the plaintiffs seek?

back_to_our_senses said...

Valtin - this is offtopic, but I have a question regarding Appendix M in the AFM. What would you say of arguments that suggest this part of Obama's executive order ensuring lawful interrogation:

"Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009"

precludes the possibility that Appendix M can even be used - after all, it is intended for unlawful combatants, which are still inside the scope of the Geneva Conventions? If the Bush interpretation of "unlawful combatants" is thrown out, as Obama says it is, then the actual Geneva Conventions interpretation of "unlawful combatants" offers them protection from torture and coercion. So I understand it. Also, earlier in the executive order, Obama orders:

"(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340 2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person ..."

It is notable perhaps that the AFM is not mentioned there - containing as it does severe violations of the Geneva Conventions.

There is a severe tension between Appendix M and the rest of this Executive Order. And of course it is laughable that nonetheless, the AG can provide guidance to the contrary of the order's baseline. Surely, it would be understood, there is some consequence for that - I mean, there would be anyway, if Obama prosecuted Bush, and our nation complied with internatonal law.

I hope my question is clear. Panetta's confirmation hearing suggested that what is presently "baseline" can be exceeded - and that is troubling. My feeling is that in Obama's executive orders, there is a little more deception than what we have all applauded.

Anyway, any feedback would be appreciated. In the meantime, I'll be trying to work it out for myself.

-Back to our senses

Valtin said...

To Back to Our Senses: The AFM is full of statements that it adheres to Common Article 3, CAN, etc. I don't know what the Bush take on "enemy combatants" means if the old memos are thrown out, with their suspect interpretations. I do know that the executive order caveats are not sufficient for many in the legal field that I respect, including CCR, PHR, and the president of the NLG.

By the way, there's more wrong with the AFM than Appendix M, which I intend to more specifically highlight soon. I, and CCR, have mentioned the new definition of "Fear Up." But there are also changes in language re using drugs on detainees during interrogations, loosening those restrictions.

I will note that if you read the fine print carefully, they adhere to CA3, but make sure that "enemy combatants" aren't given the protections of GA4, which covers civilians, which is where all non-POWs should be. Why? Because it specifically disallows coercion, which CA3 does not.

Also, the legal fine print relies on legal language in the "U.S. Reservations" to the CAN treaty, which made U.S. definitions of torture different than international standards, making them depend upon hazy "shocks the conscience" criteria, upon which U.S. courts have a checkered history.

Believe me, they've looked into all the loopholes. They can't really plug all their holes, but they've tried.

back_to_our_senses said...

Hi Valtin - thank you for your answer. Illuminating. The fine print is what matters.

I look forward to your future posts on the AFM.

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