More transparency we can believe in!
In a 6-5 ruling issued this afternoon, the 9th Circuit Court of Appeals handed the Obama administration a major victory in its efforts to shield Bush crimes from judicial review, when the court upheld the Obama DOJ’s argument that Bush’s rendition program, used to send victims to be tortured, are “state secrets” and its legality thus cannot be adjudicated by courts.
The Obama DOJ had appealed to the full 9th Circuit from last year’s ruling by a 3-judge panel which rejected the “state secrets” argument and held that it cannot be used as a weapon to shield the Executive Branch from allegations in this case that it broke the law.
I’ve written multiple times about this case, brought by torture/rendition victim Binyam Mohamed and several others against the Boeing subsidiary which, at the behest of the Bush administration, rendered them to be tortured.
Flu permitting, I’ll have much more to say about this decision tomorrow, but for the moment, I wanted to highlight the first paragraph from The New York Times article on this ruling, written by Charlie Savage. Just marvel, in particular, at the last sentence:
“The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power.” That says it all.
The distorted, radical use of the state secret privilege — as a broad-based immunity weapon for compelling the dismissal of entire cases alleging Executive lawbreaking, rather than a narrow discovery tool for suppressing the use of specific classified documents — is exactly what the Bush administration did to such extreme controversy. To see how true that is, just look at this article from Talking Points Memo, from April of last year, in which Zachary Roth consulted with numerous legal experts about my argument that Obama was abusing this weapon in exactly the same way Bush did. His findings were encapsulated in the TPM headline:
Salon‘s Glenn Greenwald wrote that the move “demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used.” MSNBC’s Keith Olbermann called it “deja vu all over again”.
Not having Greenwald’s training in constitutional law (and perhaps lacking Olbermann’s all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration’s position on the case. Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?
In a word, yes.
Suffice to say — with great understatement — Obama’s doing this doesn’t trigger the same level of outrage and objection as when Bush did it, at least not in most circles. And I do so fondly recall the days back in the Spring of last year when civil libertarians who were vigorously objecting to Obama’s Bush-replicating legal positions were told by vocal Obama supporters that Obama was only doing this in order to ensure that Bush’s extremist legal theories were rejected by courts and thus we were all generously showered with the Magnanimous Gift of Good Precedent. Again with great understatement, Obama’s appealing the 9th Circuit’s rejection of the Bush/Obama “state secrets” argument to the full court — and thus securing one of the most harmful judicial endorsements ever of this radical secrecy doctrine — is not exactly consistent with that Obama-justifying rationale. Continue reading »
Tags: Barack Obama, Bush administration, CIA, George Bush, Government, Interrogation, Obama administration, Politics, Torture, U.S.