Did anything change? "No, your honor"

By Big Tent Democrat, Section Civil Liberties
Posted on Mon Feb 09, 2009 at 10:17:07 PM EST
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That is the damning reply delivered by an Obama Justice Department official today in the oral argument in the Jeppesen extraordinary renditions flights case. The NYTimes reports this exchange:

“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 Obama Administration, trying to deflect the stain of this exchange, stated that:

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.

Putting two and two together, one of two things has happened - Holder reviewed and approved the state secrets assertion in the Jeppesen case (and indeed the government attorney arguing before the 9th Circuit said as much) or the government attorney misled the 9th Circuit panel.

The Justice Department spokesman is clearly, imo, misleading here. The Jeppesen case is clearly one where the state secret privilege is poorly invoked. Indeed, there is no secret anymore as to what happened.

Holder and the Obama Administration are BSing us on this issue. Unlike some, I believe that there are appropriate situations for application and invocation of the state secrets privilege. I think it serves an important function. The Jeppesen case is about as far a case as one could imagine where the invocation of the state secrets privilege can possibly be deemed appropriate.

Greenwald has wall to wall coverage.

Speaking for me only

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Did anything change? "No, your honor" | 31 comments (31 topical)

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Apt choice of words... (5.00 / 1) (#1)
by FoxholeAtheist on Mon Feb 09, 2009 at 10:22:49 PM EST

from Judge Mary M. Schroeder:

"The change in administration has no bearing?" [emphasis added]

I absolutely agree with you that (5.00 / 1) (#2)
by andgarden on Mon Feb 09, 2009 at 10:25:59 PM EST

[T]here is appropriate situations for application and invocation of the state secrets privilege.

If he hadn't had "sand kicked in his eyes" either Karl Rove or Scooter Libby would have been prosecuted for outing Valerie Plame by Patrick Fitzgerald.

Andgarden, what would be an example of (none / 0) (#14)
by FoxholeAtheist on Mon Feb 09, 2009 at 10:55:31 PM EST

appropriate situations for application and invocation of the state secrets privilege.

Are you referencing some historical precedent? Or are you envisioning a prospective future scenario? Such as what?


Should the government have to divulge (none / 0) (#16)
by andgarden on Mon Feb 09, 2009 at 11:00:55 PM EST

a list of everyone who worked undercover for the CIA? I don't think so.


: Protecting the identities of undercover (5.00 / 1) (#22)
by FoxholeAtheist on Mon Feb 09, 2009 at 11:31:40 PM EST

CIA operatives must be covered by some other provision.
Here's part of what John Dean had to say about "state secrets privilege" in 2006:
The "Bush administration has invoked the state secrets privilege in 23 cases between 2001-06." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."

How depressing that Obama has already invoked it on one occasion during his first 3 weeks in office.

Must the court recognize (5.00 / 1) (#3)
by caseyOR on Mon Feb 09, 2009 at 10:26:08 PM EST

If the Justice dept. asserts the state secrets privilege is the court required to accept that? Is there no recourse?

: the court can reject it (5.00 / 1) (#8)
by Big Tent Democrat on Mon Feb 09, 2009 at 10:32:13 PM EST

in theory.
With this Supreme Court, the rejection will remain theoretical imo.

Perhaps a link (5.00 / 1) (#4)
by Steve M on Mon Feb 09, 2009 at 10:26:27 PM EST

to an explanation of why the state secrets privilege is clearly inapposite in the Jeppesen case, for those of us without that name at the tip of our tongues?

It seems to me that anyone who believes there ought to be a state secrets privilege, which apparently includes the new administration, has a particular obligation to ensure the privilege is not invoked frivolously. If it becomes shorthand for nothing more than "the government prefers not to answer these allegations," which is how it was used under Bush, eventually the courts will stop tolerating its invocation.

Follow the Greenwald link (none / 0) (#7)
by Big Tent Democrat on Mon Feb 09, 2009 at 10:31:24 PM EST

Perhaps the 9th Circuit will do so here.

but the Supreme Court will reverse.


: As usual (5.00 / 2) (#19)
by Steve M on Mon Feb 09, 2009 at 11:12:03 PM EST

It turns out that I find it pretty difficult to argue with Greenwald.

Well nobody told Leon Panetta (5.00 / 2) (#6)
by lilburro on Mon Feb 09, 2009 at 10:30:37 PM EST

to say he would "request any additional authority he would need," in interrogations, except perhaps Obama. See my diary on the sidebar.

Obama made it clear he was cool with holding over some Bush admin officials - including Stephen Kappes, including Gates, including John Brennan. People whose hands are dirty. If Obama's policy right now is "just hold tight for a sec while we figure this out," he better be damn careful. Because apparently we have a lot of very creative mini-Yoos out there, willing to exploit loopholes wherever they might be. What's the punishment for that? Getting fired? Jeralyn documented below how Gitmo is only getting worse. Why did the new sheriff, coming into town, allow said town to remain such a hellhole?

Don't you think the Obama administration (none / 0) (#11)
by oculus on Mon Feb 09, 2009 at 10:35:31 PM EST

wants to retain all its options? Why give up power it may want to use later? Not saying I agree.


: One has a hard time (5.00 / 4) (#13)
by lilburro on Mon Feb 09, 2009 at 10:51:14 PM EST

imagining that "additional authority" means anything but "enhanced" interrogation. Esp. if the premise is that the AFM contains all that is legal and necessary.
Capitulating to "ticking time bombs" may make temporary political sense. But it kind of undermines the whole premise of being anti-torture. We'll rewrite the rules if we feel like it. Etc.

Too Embarrassing (5.00 / 2) (#9)
by squeaky on Mon Feb 09, 2009 at 10:32:21 PM EST

Makes waterboarding look minor. That is also why the US threatened to discontinue intelligence sharing with Britain if they revealed the torture details.

Some words to describe what we (5.00 / 6) (#12)
by FoxholeAtheist on Mon Feb 09, 2009 at 10:48:43 PM EST

know about that which is being hidden (i.e. "his genitals were sliced with scalpels"): grotesque; sadistic; depraved; perverse; wanton; pathological; criminal; nauseating; unspeakable; and entirely counter-productive.

Greenwald update IV (5.00 / 6) (#21)
by oldpro on Mon Feb 09, 2009 at 11:15:48 PM EST

"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.

No change.

: Yep (none / 0) (#31)
by lilburro on Tue Feb 10, 2009 at 07:53:55 AM EST

"thoroughly vetted" is pretty damning. Also this section of the NYTimes report:

But Mr. Letter said that the lower court judge, James Ware, did receive classified information and came to the correct conclusion in dismissing the case last year. He urged the judges to pore over the same material, and predicted "you will understand precisely, as Judge Ware did, why this case can't be litigated."
Not exactly lukewarm support for invoking the state secret privilege. I think this is the same Douglas Letter. A brief glance at his resume ("In 1994-95, he served in the White House Counsel's Office as associate counsel to the president") doesn't suggest he is being a vigilante Bushie on this.

only the names have (5.00 / 1) (#24)
by cpinva on Tue Feb 10, 2009 at 12:26:50 AM EST

"changed". "state secrets" is invoked for only one of two possible reasons:

to protect intelligence gathering systems in place, or information that's been gathered.
to protect someone's as*.

take your pick here.

This administration is fast becoming... (5.00 / 2) (#26)
by Dadler on Tue Feb 10, 2009 at 12:42:19 AM EST

...the most self-contradictory in history.

I'm at a loss.

This was not one of the things about which I could say during the campaign "Yeah, nice talk, but I bet he won't do anything substantial." This was one of the things I figured would be a no-brain immediate change.

This administration seems to want to have its cake, drink it, make it's bed, then not sleep anywhere near it.

I can't figure a damn thing out yet. It either IS part of some bigger "plan" or just a very bad start to a presidency of a guy who was not only not ready on day one, but not ready to BE ready.

Bah!!

: I did claim at times (5.00 / 1) (#29)
by Fabian on Tue Feb 10, 2009 at 05:28:04 AM EST

during the campaigns that Obama was a DINO, mostly out of frustration at his refusal to talk about Democratic principles or even refer to himself as a Democrat.
Now? I really don't know. It's easy to call him a centrist, hard to call him a Democrat.

WSWS: Obama administration defends torturers (5.00 / 1) (#27)
by Andreas on Tue Feb 10, 2009 at 12:56:35 AM EST

The WSWS writes:

The claim that allowing the case to go forward would endanger national security is ludicrous on its face. ... the government's aim in suppressing any legal challenge is to protect those responsible for war crimes and to prevent new evidence of official criminality from surfacing. ...
In seeking to suppress this case, the Obama administration has taken full ownership of these savage crimes. ...
While Washington is attempting to use the departure of Bush and the ascension of Obama to refurbish the abysmal image of US government both at home and abroad, the action taken in the San Francisco federal court is only one of a number of recent developments making it clear that the essential contours of US imperialist policy and both the criminal and police-state measures that it has engendered will not be transformed by the change in personnel in the White House. ...
Less than three weeks after the inauguration, it is becoming ever more apparent that the new administration has been brought into office to defend the same social and class interests as the previous one, is utilizing similar methods and relying on the same personnel within the national security apparatus responsible for the criminal activities of the past eight years.

Obama administration defends torturers
By Bill Van Auken, 10 February 2009

Change we can ... (none / 0) (#5)
by RonK Seattle on Mon Feb 09, 2009 at 10:27:22 PM EST

... change.

I believe Michael Scheuer told 60 Minutes (none / 0) (#10)
by andgarden on Mon Feb 09, 2009 at 10:35:23 PM EST

a few years ago that extraordinary rendition was practiced under the Clinton Administration.


I was under the impression (5.00 / 1) (#17)
by Militarytracy on Mon Feb 09, 2009 at 11:07:35 PM EST

though that under Clinton torture was not used and that we did not rendition to countries in order to be able to legally torture those that were being renditioned.


I believe that's correct (none / 0) (#18)
by andgarden on Mon Feb 09, 2009 at 11:09:19 PM EST

but we don't get the details. . .


Ironically, Michael Scheuer, (5.00 / 1) (#20)
by lilburro on Mon Feb 09, 2009 at 11:15:14 PM EST

so-called architect of the Clinton-era renditions program, said of renditions: "I have said that I personally don't think that torture is a very good idea in terms of getting information. I also said that I don't care if it happens."

IOW, in the Clinton administration, torture was not the point - but if it happened, eh... The extent to which the Clinton admin "gained assurances" from countries like Egypt is unclear. They did not place value on tortured-induced confessions though.


I'm going out on a limb here, but... (5.00 / 1) (#23)
by FoxholeAtheist on Mon Feb 09, 2009 at 11:42:18 PM EST

I think there may be a correlation between sexual repression and a proclivity toward the kind of sexualized torture that's come to light.

I just can't see WJC being ok with this particular stuff; Bush is a different story. Him I can picture at the scene.


: IOW (none / 0) (#30)
by Rojas on Tue Feb 10, 2009 at 07:25:24 AM EST

It's not the policy you object to, It's simply a personnel issue.

Yes (none / 0) (#25)
by cal1942 on Tue Feb 10, 2009 at 12:41:27 AM EST

I remember that.


Power (none / 0) (#28)
by mmc9431 on Tue Feb 10, 2009 at 05:21:15 AM EST

Just another example of why the Bush administration needed to be strongly challenged at the time and why they should still be investigated. The atandards that they set are now the bar. No new administration is going to willingly try and raise that bar.

OK...call me dense (none / 0) (#32)
by ricosuave on Tue Feb 10, 2009 at 09:24:50 AM EST

but what is the state secret that is being guarded here? These men allege that they were flown on a private plane from one country to another, and that they were tortured in that second country. Presumably, the US government did not legally participate in that torture so there is nothing there that can be protected as a state secret. Presumably the US government did not operate the plane, as it was a private contractor. If the US had any role, it was in snatching these guys in the country of origin and handing them over to the airplane. Can they not prove that they were on the plane without revealing the names and details of the agents who snatched them?

I think the problem is that we can't let the airline off the hook in the suit unless the government admits that the airline employees were acting under orders from the government. Then a plain-old US court gets to determine whether private companies (and individuals) acting under government instructions outside the US are liable for their actions in a US court. If they say yes, our whole Iraq (and probably Afghanistan) operation falls apart as the contractors decide it is not worth it or up their rates to compensate. If they say no, then we continue with the status quo of complete lawlessness for our contractors, but probably get slammed internationally. Better to throw the whole thing out on bogus secrecy charges.