Failing the test?

February 19, 2009 at 2:00 am 1 comment

I blogged the other day on Obama’s tests, one of which was the reopening of a lawsuit on behalf of CIA “extraordinary rendition” victims. The lawsuit is Mohamed et al v Jeppesen Dataplan Inc. If you have no idea what I’m talking about, you’d better read my earlier post first. But in a nutshell, Obama has promised to close Guantanamo Bay and revoke Bush anti-terror policies but he seems to be cautious about renditions – believing that the practice should continue but with assurances that suspects aren’t tortured. Frankly, not sure how you can monitor this effectively when suspects are imprisoned abroad, out of sight, out of mind.

Two years ago, Bush and his gang effectively closed down the lawsuit against Boeing subsidiary, Jeppesen Dataplan (the company that provided the planes for rendition flights on behalf of the CIA), bleating about national security and invoking the State secrets privilege. But now we have an unexpected headline – Obama Backs Bush on Rendition Case. For those of us who were hoping the Prez of Hope & Change, with his mantra of transparency and Yes We Can, might reverse the Bush Administration’s stance on the Boeing case…, we can’t hope for that now. This was Obama’s first national security case and I was expecting better than this.

In a rerun of Bush-era legal argument, Department of Justice lawyers told the Ninth Circuit federal appeals court in San Francisco that the Obama administration believes State secrets and national security is at risk if the case proceeds. A DOJ lawyer said the entire subject matter remains a State secret. Is this Change???

We need to remind ourselves just what can happen to people when they are spirited away on rendition flights to prisons in countries that cooperate with the US. The word begins with T – for torture. Here is just one example : a victim, who was spirited off to Gitmo, had his genitals sliced open and had to bear the pain of hot liquids being poured into the open wound.  And then of course there’s waterboarding or simulated drowning (but apparently this is way down the list of techniques).

I followed Obama’s campaign closely because I was interested to see how he would be different from Bush.  I vividly recall Obama and Biden carrying on about Bush Administration secrecy. So I had a look at Obama’s campaign website to refresh my memory. This is what is said about State secrets:

“Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the “state secrets” privilege more than any other previous administration to get cases thrown out of civil court.”

During Obama’s campaign, he referred to this as The Problem (have a look on the campaign website under Plan to Change Washington) and said it needed to be addressed. Yet, Obama’s administration has just invoked the same argument – State secrets privilege.

So I decided to do a spot of research on FindLaw into State secrets privilege. As far as I can tell, the concept of State secrets privilege was recognised by the US Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953) – a case relating to an Air Force plane crash. The Supreme Court upheld the Government’s assertion that to cough up documents would reveal secret squirrel military stuff. The original intent of the privilege, as I understand it, was to stop specific or individual documents or evidence being introduced into court that may in fact harm national security. There are, after all, legitimate State secrets.

But Bush extended this privilege beyond belief to entire law suits (to get them thrown out of Court) and to obtain a sweeping immunity for his administration’s actions. He also used it to defend the illegal wiretapping programme his Government carried out. He took a rarely invoked concept and used it in a pre-emptive manner to cover up his Government’s actions.

In fact, good old Dubya (perhaps not that stupid after all) issued Executive Order 13233 in November 2001 that would “permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure. More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.”  So much for the Rule of Law.

So I don’t get it: is Obama inheriting Bush’s powers and throwing away his rhetoric of transparency? Is it just more of the same? Even Democrat Senators are shaking their heads and asking questions.

Image credit: Wikipedia


Entry filed under: Politics, United States. Tags: , , , .

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1 Comment Add your own

  • 1. Paris  |  February 19, 2009 at 9:33 pm

    The more complex tools we use, the more advantages they can offer us. But the more problems they cause, still.
    Law, which has no internal limit to development, is an ever increasing complex tool, bringing increasing confort to people, but also increasing threats.

    We can choose the statu quo, and fear increased legal risks, or we could choose to somehow constitutionally limit law making, for the better and worse.

    Anyway risk=0 is not possible.


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