Dear Obama Administration,
“In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.
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 Guantanamo 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.”
There are so many, many, many things wrong with this. For starters, It’s a big, big mistake for any branch of government to have the power to simply declare that whole subjects are out of bounds, without any check on its veracity. We should have learned this from the very first case that established the state secrets privilege: the government said it could not divulge facts central to that case without jeopardizing national security, but when the documents involved were finally declassified, it turned out that it was just covering up for its own mistakes. The Obama administration cannot be expected to have reversed the court decisions on which this power depends in its first few weeks of office. But it can absolutely be expected not to use this power absent truly extraordinary circumstances.
It would be one thing if the state secrets privilege meant only that government officials could not be asked to provide evidence in a case. That would be bad, but not as bad as the state secrets privilege, which (if I understand it) allows the government to argue not simply that it should not be required to testify, but that plaintiffs should not be allowed to try to establish certain sorts of facts on their own, from the public record. When those facts are central to the plaintiffs’ case, as they are here, the government can argue that that case should be dismissed. To allow the executive the power to make such claims simply on its own say-so, without any opportunity for anyone to verify them, is just plain wrong. Again, the Obama administration cannot be expected to have made this power go away, but it can absolutely be expected not to use it.
Moreover, I have read the government’s filing (warning: link will download a pdf) invoking the state secrets privilege. Like every other Bush administration court filing I have read, it is striking not just for the breadth of the powers it claims for the government, but for the complete absence of any concern for justice. When the government has argued against Guantanamo detainees’ petitions, including those of people it has itself found not to be enemy combatants, it always seems to consider only what is convenient for itself, never the fact that keeping people locked up for seven years for no reason is a sufficiently dreadful thing to do that it might be worth a bit of inconvenience to avoid it.
Likewise in this case. Here’s what was done to one of the defendants:
“Early on the morning of July 22, 2002, a Gulfstream V aircraft, then registered with the FAA as N379P, flew Mohamed to Rabat, Morocco where he was interrogated and tortured for 18 months. In Morocco his interrogators routinely beat him, sometimes to the point of losing consciousness, and he suffered multiple broken bones. During one incident, Mohamed was cut 20 to 30 times on his genitals. On another occasion, a hot stinging liquid was poured into open wounds on his penis as he was being cut. He was frequently threatened with rape, electrocution and death. He was forced to listen to loud music day and night, placed in a room with open sewage for a month at a time and drugged repeatedly.”
But surely, someone might say, at least if that someone had spent the last eight years hiding under a rock — surely a person to whom we did this must be one of the worst of the worst, right? Apparently not:
“A British ‘resident’ held at Guantanamo Bay was identified as a terrorist after confessing he had visited a ‘joke’ website on how to build a nuclear weapon, it was revealed last night.
Binyam Mohamed, a former UK asylum seeker, admitted to having read the ‘instructions’ after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.
It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist.”
Here’s a link to the article, written by famed nuclear physicist Barbara Ehrenreich. It’s actually quite funny. Here, for instance, is how to enrich uranium in your own home (with so much less trouble than the Iranians seem to be going to):
“First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream. Repeat this step until you have the required 10 pounds of uranium. (Safety note: Don’t put all your enriched uranium hexafluoride in one bucket. Use at least two or three buckets and keep them in separate corners of the room. This will prevent the premature build-up of a critical mass.)”
Now that you’ve read this paragraph, you too could be identified as a dangerous terrorist, be flown to Morocco, and have people slice open your penis and pour hot stinging liquids into the wounds — and all at government expense! You won’t even have to be beaten, hung by your wrists for a week, and have a gun held to your head — you can just say you have read it straight away! And when it’s all over, the government can argue, as they did today, that any examination of their conduct puts our national security at risk. It’s too bad that people we turned loose on you turned your genitalia into shredded wheat, they might say, but hey: we have to set your interests aside in favor of our own. Just like we did before.
So much for justice.
I can easily see why we might not want to disclose which other governments we have asked for assistance, especially assistance that involves taking a scalpel to someone’s genitalia. If we asked Morocco for help, Morocco might not take kindly to our turning around and publicizing that fact. And I can see why we might not want to disclose which companies work with the CIA.
But if the government cares about protecting these secrets, it ought to try very hard not to create situations in which disclosing them is the only way to remedy a horrific injustice. It is not OK for the government first to engage in the kind of conduct described above, and then to say that its victims can have no legal recourse, because of national security concerns. And one of the things that’s really shocking about the DoJ position is its apparently complete lack of consideration for the rights of the people who were abducted and sent off to be tortured at our behest.
Sometimes, when you do something really appalling, you lose the right to complain that making things right will harm your interests. I think this is one of those times. The Obama administration apparently disagrees.
So, Obama administration: you screwed this one up in a major, major way. Stop it. Stop it now. Work your hearts out to get the State Secrets Protection Act reintroduced in Congress and passed into law. Try to do right by people like the plaintiffs in this case. Don’t just say: it would be a problem for us to let people we shipped off to be tortured have their day in court. Try to make it right.
You have it in your power to make me proud of my government again. But this is really, really, really not a very good start.
