TheAgitator.com
Obama Punts His First State Secrets Case
Wednesday, February 11th, 2009Surprising even a judge at the U.S. Court of Appeals for the Ninth Circuit, a lawyer for the Obama administration embraced the Bush administration’s position in the first state secrets case since Obama took power. The case involves five accused terrorist detainees who are attempting to sue a subsidiary of Boeing for arranging flights to accommodate the Bush administration’s “extraordinary rendition” program, which flew them off to be tortured by other governments.
Though it’s now well-known that the practice went on and the details even of these particular cases have been well-documented, just as it did in the horrifying case of Khalen Masri the Bush administration invoked states secrets privilege to prevent the suit from coming to trial. State secrets is a judge-made law (based entirely on a lie, by the way) allowing the executive branch to exclude evidence in a case merely by stating it would be contrary to the interests of national security to allow the evidence to be admitted. Bush administration officials claimed judges are obligated to show the president “utmost deference” on state secrets claims, provoking a federal judge in a domestic spying/wiretapping case to ask if that means “the king can do no wrong,” and that judges are supposed to “bow” before the president in such claims.
According to the Reporters Committee for Freedom of the Press, the state secrets privilege was invoked about 55 times from 1954 to 2001. In the first four years after the Sept. 11, 2001 attacks, the Bush administration invoked it 23 times.
Obama has promised to review Bush’s invocation of state secrets privilege, including voicing his support for a reform bill working its way through Congress. But the case this week was his first opportunity to do something about it. He didn’t. From the New York Times:
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…
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.”
Lefty blogger hilzoy quotes from the ACLU brief that details Mohamed’s account of what happened to him:
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 let’s not lose too much sleep over Mohamed. He’s probably one of those “worst of the worst” we’re always hearing about, right?
Mohamed’s lawyers say he was turned over to the CIA and shipped to Guantanamo after admitting to Pakistani officials, while being tortured, that he had visited an Internet article with instructions on “how to build an H-bomb.” Except the article was satire. It was written by labor advocate and food writer Barbara Ehrenreich. You can read it here (if you dare).
The U.S. has denied the evidence against Mohamed was obtained by torture, but the BBC is reporting today that U.S. officials have actually threatened to stop sharing information with British intelligence about terror threats to the U.K. if Britain allows the details of Mohamed’s alleged torture to be made public. The Independent reported last month that Mohamed was soon to be released from Guantanamo Bay, but that report seems to be based on what Mohamed told his lawyers. He’s still in Guantanamo now, though all of the terrorism charges against him have been dropped.
To their credit, many Obama supporters are livid. Glenn Grenwald writes that Obama has failed his first major civil liberties test “resoundingly and disgracefully.” Andrew Sullivan writes that, “with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.” Hilzoy implores Obama, “you screwed this one up in a major, major way. Stop it. Stop it now.”
Meet the new boss! Same as the old boss. Just seems like the best thing to bring up!
How is this suprising to anyone?
Absolutely disgusting. Obama should be ashamed of himself, and failing that, I am ashamed for him.
Silver lining. The first step in recognizing the nature of government is becoming bitterly disappointed in “your guy”. It’s like when you first realized (spoiler alert) Santa Claus isn’t real.
A politician is a politician, no matter which restroom they pee in or who shakes it for him. Most make me retch within five minutes, but all will eventually make me ill.
State secrets are facts that show that what U.S. officials say and what they do are completely independent of each other. It can’t have anything to do with security because everyone on the planet already knows that.
While I agree that using “State Secrets” to kill this case is just more of the same and is disgusting, I frankly feel like bringing suit against Boeing (or their subsidiary) for provding the flight is an absolute joke and just another frivolous lawsuit.
You can’t (or shouldn’t) be able to sue a transportation company because something bad happened to you after you arrived.
Chris,
Jepperson didn’t even supply the flight, just the flight planning and arrangement for ground services.
I’m curious why they didn’t sue the charter company.
@ Chris in AL
Yeah. The state secrets thing is bogus, and Obama should be ashamed for using that tactic. It’s not acceptable.
But it seems an awful lot like this is like charging FedEx with drug trafficking when someone ships a pound of weed.
But that has NOTHING to do with state secrets, and the government should not be obstructing for Jeppesen Dataplan by just screaming, “National Security! Booga Booga!”
Change you can believe in!
Chris in AL,
You’re just flat out wrong dude. One of the things the plaintiffs intended to prove in this case is that Boeing’s subsidiaries’ officers or agents knew what program they were participating in and knew torture would take place.
Like is so often the fallacious case with people who scream about “frivolous lawsuits” you assumed the very facts in issue in a manner favorable to the defendant and then argued therefore the case is utter crap.
Surely you would agree that if some person handcuffed a woman to your passenger seat and then asked you to drive her to a warehouse where she would be raped and you agreed you’d be complicit in her rape no? And that that woman would have the right to sue you and attempt to prove that you knew full-well what was happening. In turn, you would of course have the right to present evidence that you were just tranporting her to be a nice guy. Umm, yeah that’s why we have courts.
Obama’s stance on this case is downright infuriating. I want my fucking vote back I’m so disgusted. This is a corrupt decision and a cover-up. There is no policy justification, and there’s really no nuance between taking this positiong and condoning torture outright. So sad.
OK……how many of Bush’s “failed policies” has The One now left in place? I’m losing track……….
“Judge Schroeder asked, ‘The change in administration has no bearing?’ Once more, he said, ‘No, Your Honor.’”
Aren’t you voters glad you voted?
No impact in the individual.
No impact in the aggregate.
Think about what change would result if NO ONE VOTED.
All you voters talk the talk about change. Not one of you walks the walk.
I’m not sure I agree that the case is frivolous. It sounds a bit like when AT&T allowed the government to tap calls without a warrant. They were given immunity from prosecution for that. They were complicit with the government and knowingly in violation of the Constitution.
It seems like a company secretly transporting foreign citizens between countries would have to know that the activity could be illegal.
“You can’t (or shouldn’t) be able to sue a transportation company because something bad happened to you after you arrived.”
This is not about a private transportation company. This is about a fascist corporation with government contracts.
Godwin alert:
Chris, you just excused IG Farben for manufacturing Zyklon B because some people just happened to breathe the air it was pumped into. You sure you want to stand by your comment now?
There is but one authorization for secrecy in our rules for government. That authority is given SOLELY to the Congress concerning their journals. It is explicit in the rules. Of course, the rules for government in the US is more commonly called the Constitution for the United States of America.
But then nobody other than me that I’ve met/talked to really supports all the Constitution. The Constitution is not a buffet and it ain’t Burger King. The law is the law is the law. Don’t like it work to get it changed. Disobey it and pay the price.
Obama was always a demagogue EXACTLY what the Framers warned about when the Framers decided the People were too stupid to vote for President. Then the freaking parties come along, coopt the process, and screw us over. Those who refuse to learn from history are doomed to repeat it. – Santayana
Stupid people get stupid government. The rules are simple and clear spend some time learning them and quit trying to get knowledge from an idiot box.
Dominus providebit!
I think that’s not an apples to apples comparison. I would actually be less inclined to forgive Boeing than IG Farben because Boeing is located in a country that supposedly doesn’t force companies to do things that are in violation of the constitution. The AT&T example is better because at least one company (Qwest) chose to resist the government in that case (and are now heroes in my book). I think Boeing could have resisted.
Dave. No need to think it dude, it’s a fact not up for debate: Boeing could have resisted. Boeing got paid to do it, and could have turned down the contract and the money.
It’s change we can believe in…or fucking else.
Dave, your commentary is always appreciated, but in this case, it is apples to apples. The only difference between Nazi Germany and the US is that the situation was well understood by most of the population of Germany.
Boeing = IG Farben
Boeing is a death merchant.
As for voters, fuck the lot of you. Transfer all of your negative karma onto me if it makes you feel less guilty.
Nick T (and others)
This can’t remotely be compared to someone handcuffing a kidnapped woman to my car and having me drive her to a rape appointment.
In this case the ’someone’ is the US Government. the woman is a detainee that the government maintains has been legally detained and the company does not get to rule on that. And the rape appointment is simply turning the detainee over to another allied government.
Suing the carrier does nothing to bring any measure of justice to the situation. All the people who should truly be accountable are safe in this scenario.
And I do think the right people should be held accountable. Going after Boeing and pretending that they are the right target does not make it so. In fact, it helps let the real culprits off the hook, because now somebody has been given blame. The wrong somebody.
Nor do I consider this similar to the IG Farben scenario. I consider this this more similar to suing Smith & Wesson because they made the gun some gangbanger used to kill a kid.
Some of our bombs have killed Iraqi civilians. That might be our government’s fault. It might be the bomb manufacturer’s fault. But it is not the fault of the trucking company that delivered them from the factory. Even though they knew some of those bombs might kill civilians.
I blame the two party system.
[...] Balko points out that Obama sounds more like Bush in his administration’s first state secrets [...]
Chris,
You are still assuming facts that have not been proven and might be specifically proved in the opposite. Without getting too much into detail if Boeing(’s subsidiary) knew what it was doing was illegal then that increases their culpability. Based on my rape appointment analogy, let’s say you were ordered by a police officer to drive the woman to a prison because she was a criminal, it would still be relevant if you knew that the plan was to do unlawful things to her when she got to that prison.
The bottom line is your argument relies on certain facts being resolved in a certain way and that is what this lawsuit would seek to settle.
Your argument that this undermines accountability for truly guilty government officials is – respectfully – somewhat absurd. These kinds of civil suits against those complicit in the government’s crimes might be the best, let alone only, way to understand exactly what the government did and who authorized it. Simply putting more of this information into the public domain increases accountability even if there is, sadly, no legal punishment. I think it’s always better to know the culprit and the extent of the crime even if you can’t catch the actual criminal.
“But it is not the fault of the trucking company that delivered them from the factory. Even though they knew some of those bombs might kill civilians.”
Oh yes it is. They are complicit.
If it appears that the line of complicity reaches all of us, then you are finally awake.
Nick T
I see what you are saying. Perhaps I jumped a little quickly, as frivolous lawsuits are a bit of a hot button with me. Perhaps this one should have been allowed, if for no other reason than because the government doesn’t wish it.
Of course, if Boeing was found to be responsible and a large settlement was awarded, we would just get to involuntarily bail them out.
[...] Full Story: the Agitator [...]
Cynical: “If it appears that the line of complicity reaches all of us, then you are finally awake.”
Sorry Cyn. I like you, like the opinions you bring, but I am not swallowing the ‘we are all complicit’ pill. I don’t get a share of the blame for everything bad thing my government does anymore than I get a share of the credit for every good thing it does.
Sorry Neo, I guess I am not finally awake after all.
I think you meant to say that you blame the 1 party system.
Fair enough Chris. I interpret your last post to mean that there’s nothing an individual can do about the State (except abandon it), which I believe to be the truth.
Wow Cynical, you are awfully…cynical! LOL.
But you are right. As far as doing something about the State, an individual can vote, which we all know is a fixed game. Or he can revolt. But I am a little out-gunned.
I can bitch about it on the web though!
There are two possibilities that could have led Obama to decide not to release the info that could moderately excuse the actions:
1) The governments of a bunch of other countries are so hip deep in this that they basically told the US “Release this information and you will never, ever get any cooperation on anything military or intelligence oriented from us again;”
2) The material was so awful that they concluded that the safety of any US citizen outside of North America would be in jeopardy due to the angry reactions in other countries.
I think the former is more likely; people in other countries are already assuming the very worst.
“I can bitch about it on the web though!”
Enjoy it while it lasts!
Wait, wait, wait! I think we’re missing the bigger picture here. The US govt. threatened the UK’s freedom of speech, and the British told the US to go fuck itself (printed the article anyway)! Where exactly do I apply for British citizenship? They seem to have learned the lessons of the American Revolution a bit better than we did.
Howzabout a bunch of hackers getting into the personnel records of ALL the people who ‘worked’ in the ‘merkin torture industry and then publishing them on the net? Get every doctor, nurse, psychologist, guard, cleaner name UP IN LIGHTS. Get those with ‘professional’ (sic) qualifications struck off, barred and pilloried. Create tours of torture participating people’s houses and neighbourhoods to show your children what evil really is. Send hate mail to the family of every so-called ‘patriot’ that participated in the murder, rape, torture and humiliation of innocent people. Forget Godwin’s Law and apply the God will fuck you over for this Law…