Friday, February 13, 2009

Obama's DoJ: A Pattern of Obstruction in Torture, Wiretapping Cases

Obama's Department of Justice, seeking once again to invoke national security secrets as a means to throw out a lawsuit claiming damages, met opposition today in the person of Chief U.S. District Judge Judge Vaughn Walker.

The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:
This case alleges targeting of the leaders of an Islamic charity and their lawyers by the admitted, targeted warrantless wiretapping by the NSA. It is based on a document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates that they were subjected to warrantless wiretapping (the exact facts are held under tight seal).
SF Gate picks up the story, describing a combative group of government attorneys warning Judge Walker that they would take their appeal to federal appeals court if he didn't order a stay in his January 5 order allowing the wiretapped plaintiffs to "to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit."
Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do'"....

Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.

Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech.
To the government's likely chagrin, Judge Walker denied the government request for a stay, and even seemed to get a little testy with the government in his denial order (emphasis added):
First, the January 5 order is not a “final decision” and, therefore, not appealable pursuant to 28 USC § 1291. Second, the court is fully aware of its obligations with regard to classified information. The court’s January 5 order stated that it would prioritize two interests: “protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action"....

The court seeks from the government implementation of the steps necessary to afford that “both parties have access to the material upon which the court makes a decision.” That is the procedure the January 5 order seeks to put in place. That order is, therefore, entirely interlocutory and an “immediate appeal will not materially advance ultimate termination of the litigation.” An appeal under 28 USC § 1292(b) and stay are not appropriate and are, therefore, DENIED.
Obama's promises are proving as empty, especially when it comes to exposing or prosecuting national security crimes. DoJ's actions in the al Haramain case must be seen in the context of the intervention by Secretary of State Hillary Clinton's State Department warnings to the British government not to reveal in court information on torture in the Binyam Mohamed case, nor from the decision to invoke "state secrets privilege" last Tuesday on the Jeppesen CIA rendition lawsuit.

[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]

Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":
On Wednesday, the Justice Department requested a 90-day stay so it could have more time to review three torture memos that we’ve specifically re-requested for release through our five-year-old Freedom of Information Act request. These three memos, written by then-head of the department’s Office of Legal Counsel (OLC), contain authorizations to subject detainees in CIA custody to harsh interrogation methods that amount to torture, and the legal opinions that justify them.

We sent the judge on the case a letter asking him to deny the request for a 90-day stay. We’ll be back before the judge on February 18 arguing against the stay.
This kind of behavior by the Obama administration beyond unacceptable. Obama and his Justice Department are using Bush's old play card, and his promises about "change" and "hope" are revealed as false. How quickly the national security establishment puts their stamp upon the new president!

This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.

And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the Australian paper, The Age?
THREE human rights groups have obtained documents that confirm US Department of Defence involvement in the CIA's "ghost" detention program, and the existence of secret prisons at Bagram air base in Afghanistan and in Iraq.

The groups said these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the Defence Department's co-operation with the CIA's "ghost" detention program....

The groups said the documents also revealed that Defence had a policy not to register prisoners with the Red Cross for 14 days and sometimes for 30 days in the interests of collecting intelligence and that this policy was known to the Joint Chiefs of Staff.

"These newly released documents confirm our suspicion that the tentacles of the CIA's abusive program reached across agency lines," said Margaret Satterthwaite, director of New York University's International Human Rights Clinic. "In fact, it is increasingly obvious that Defence officials engaged in legal gymnastics to find ways to co-operate with the CIA's activities."
It is evident that the U.S. will do whatever it can to protect its own terror apparatus, one which kidnaps people without cause or legal right from foreign countries, or even from U.S. airports, and sends them to be tortured in CIA or foreign prisons, that bullies other countries, that falsifies or "cooks" intelligence information to justify "shock and awe" bombings and the invasion and occupation of other countries (Iraq, Afghanistan), etc.

Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.

But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:
Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”
In the end, President Obama may not be able but to play out his role to the end: commander-in-chief of a corrupted military and CIA, bound to defend them, because he cannot trust in the people he said he would lead, and is beholden to those who he feels hold all the power around him. But he is wrong. Paraphrasing a slogan from forty years ago: the People are the Power. We the People.

H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure


Trudy Bond said...

Continued excellent reporting Jeff. I read today that Binyam has been certified healthy enough to fly, so only waiting on Obama to release him. With Obama's DOJ continuing to rely on state secrets and the AFM continuing to leave the door open to torture, nothing much has changed for the victims of Bush's war crimes.

Valtin said...

One possible change -- Obama's cancellation of all those BS legal opinions by Bush's OLC. I don't know what that will mean concretely, as there are enough vague points in the law that legal interpretations and rulings are still necessary. I don't know where the lack of those opinions now leaves us. I guess it all defaults back to whatever earlier opinions were standing before. I also wonder what the status of Bush's signing statements is.

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