Obama backs Bush 'state secrets' position

February 10, 10:25 AMCivil Liberties ExaminerJ.D. Tuccille

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Meet the new boss, same as the old boss

Will we ever know what the Bush administration was doing to whom, and if the situation will improve under the new Obama administration? The short answer is: "no." At least when it comes to the "extraordinary rendition" of terrorism suspects to countries lacking inconvenient laws against torture, President Barack Obama is every bit as enthusiastic about keeping mum about embarassing "state secrets" as his predecessor.

As the American Civil Liberties Union summarizes the issue:

The Justice Department today repeated Bush administration claims of "state secrets" in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture.

The Bush administration had argued that the lawsuit brought by Binyam Mohamed, an Ethiopian native, and four other detainees should be dismissed as a threat to national security.

What does that mean?

In a letter to Senator Patrick Leahy dated March 31, 2008, opposing a congressional challenge to state secrets privilege, then-Attorney General Michael B. Mukasey wrote (PDF):

The state secrets privilege long has been recognized by United States courts as a method of allowing the Executive branch to safeguard information regarding the Nation's security or diplomatic relations. See Totten v. United States, 92 U.S. 105, 107 (1875) (dismissing contract claim to protect civil war era espionage relationship). Over fifty years ago, in United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court articulated the basic contours of the state secrets privilege. The Supretne Court held that the United States may prevent the disclosure of information in a judicial proceeding if "there is a reasotiable danger" that such disclosure "will expose military matters which, in the interest of national security, should not be divulged."

Mukasey proceeded to argue:

It is far from clear that Congress has the constitutional authority to alter the terms and conditionsof the state secrets privilege, as the bill purports to do.

Legal experts and civil libertarians were hopeful until yesterday that the Obama administration's promises to review the "state secrets" doctrine would let a little sun shine on the nastier transgressions of the U.S. government against individual rights and simple decency, and help to prevent a recurrence in the future.

Along those lines, on Monday, Justice Department spokesman Matt Miller said, "It's vital that we protect information that if released could jeopardize national security, but 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."

Well, apparently Attorney General Eric Holder's new, improved Justice Department thinks Americans don't have a right to know that the U.S. government was outsourcing its torture needs to experts in some of the world's hell-holes.

That this flies in the face of the new president's promises goes without saying. Running against the record of a Bush administration that cloaked its misdeeds in secrecy, Barack Obama talked repeatedly about "transparency" and the need for open government. Airing out civil liberties violations by the previous administration would seem to be a pretty basic baby step in that direction.

But, apparently, that's not to be.

In response to the Obama administration's move, Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs, said:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration's practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court."

It should be noted that "state secrets" privilege has also been invoked to shield illegal government wiretapping operations. With the new occupant of the White House apparently eager to hide official misdeeds from prying eyes, you have to wonder just what he has in mind.

Contact J.D.: civilliberties (at) tuccille.com