State Secrets: Updates

Two bits of welcome news. First, Sens. Leahy, Kennedy, and Specter have reintroduced the State Secrets Protection Act (S. 417). Thomas doesn’t have the text yet, but Leahy’s press release claims that “the legislation was initially proposed in the 110th Congress”, which sounds as though it is the same bill described here. That bill states that the State Secrets Privilege can normally not be used to dismiss an entire case or claim. Moreover, it states (4054(c)):

“A Federal court shall conduct a hearing, consistent with the requirements of section 4052, to examine the items of evidence that the United States asserts are subject to the state secrets privilege, as well as any affidavit submitted by the United States in support of any assertion of the state secrets privilege, and to determine the validity of any assertion of the state secrets privilege made by the United States.”

That means that it would no longer be possible for the government to get a case dismissed, or a piece of evidence suppressed, simply by claiming that national security requires it. A judge would have to look at the evidence and decide that the government was right. This is enormously important. I hope it passes, and soon: the State Secrets privilege in its present form is an invitation to abuse.

Second, from the Washington Post:

“The British government said yesterday that it is dispatching a team of officials, including a police doctor, to Guantanamo Bay to visit a former British resident on a hunger strike to be prepared for his return home to the United Kingdom.

The statement by British Foreign Secretary David Miliband stopped short of saying that the Obama administration has decided to release Binyam Mohammed, a native of Ethiopia whose case has been the subject of high-profile litigation in Washington and London. But the step appears to be a prelude to release, and it is one of the first overt indications that the Obama administration is accelerating the process of freeing some prisoners to meet its goal of closing the U.S. military prison in Cuba.”

Binyam Mohamed is one of the five plaintiffs in the case in which the Obama administration invoked the State Secrets privilege last Monday. (He’s the one who was identified as a terrorist when he confessed, under torture, to have read a spoof article by Barbara Ehrenreich about how to build an H-bomb, and afterwards had his penis sliced up.) Charges against him were dropped months ago. I hope the reports that he will be released are accurate. (He is the only one of the five plaintiffs in this case who is still in US custody. Here are biographies of the others: 1, 2, 3, 4.)

One of the many things that bothered me about the Obama administration’s invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.


While I’m on this topic: Mohamed’s lawyer has alleged that DoD officials censored a letter that he sent to Barack Obama about what his client had gone through. His evidence seems to be that he (the lawyer) got a redacted copy (pdf) of the letter back. I agree with Ken Gude at CAP that this is implausible:

“Whatever the motivations of the DOD official that blacked out the material attached to Clive’s letter, it was certainly not to prevent President Obama from seeing it. In order for that to be true, we would have to construct a scenario in which a presidential aide brings to Obama this letter asking that specific information be de-classified, but when Obama asked what information, he was handed two completely blacked out pages and that’s the end of the story. Seriously, does that sound plausible?”

More to the point, does it sound plausible that some DoD official could have blacked out these pages in order to keep Obama from seeing them and succeeded? The President can see any classified information he wants. And if I were trying to prevent him from seeing something, handing him a letter with two pages blacked out would not be my method of choice.

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