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February 12, 2009

Comments

Right on.

If it comes to a vote, Specter will probably vote against it, even though his name is on it. With profound regret, of course.

But that still leaves Kennedy and Leahy. If that ratio holds in the Senate at large, that's two to one.

That will get it done.

The President can see any classified information he wants.

Yeah, but first he has to know it's there to see.

Does it sound plausible that somebody handed Obama two black sheets of paper and asked, "So, what do you think?".

No.

Is it plausible that Obama didn't see the letter in it's original form, or at all?

Something short of "no".

And, of course, Obama could have seen the letter in it's full, unedited form, weighed it against all of the other factors he's dealing with, and decided that Mohamed's lawyer's soapbox just wasn't quite big enough.

The argument is that the letter was blacked out to give Obama deniability or avoid compromising himself. British judges who have seen the evidence -- but are not allowed to share it -- have essentially admitted that he has been brutally tortured, including some form of genital mutilation or electrocution.

'course Obama could open up all the files, if he really wanted to turn the page.

I respectfully request speaking privileges. I will not be mean.

Yes, only "what was convenient for the government" - and the ugly garnish question of what it was convenient in service to, why take this tack at all. My expectations for the Obama Administration have been revised downward (while I'm very glad those Senators are reintroducing this Act - and it's healthier to focus on the legislative branch making and insisting on better laws in any case).

It has been a shock. I had only been wondering whether Obama would pursue prosecutions to ensure deterrence for administrations after his own, take a Truth and Reconciliation Commission approach, or largely ignore the matter. His Administration undertaking to finish the Bush Administration's work in concealing the evidence - actively blocking the efforts of others to pursue accountability, using the same dirty stretch of a tactic - was not a possibility I would have found credible.

I wish I could even think it was standalone, but in the days before the 9th I had seen, and not known what to think of, the weird suggestions that the Administration had come right to the edge of threatening to cut sharing of intelligence information with Britain if Britain revealed information confirming that a prisoner had been tortured. It would fit the same pattern - and purpose, whatever it really would be.

Pursuant to the previous: It may have already been broached here, I forget, but here's a Times story on the British judges talking about U.S. threats made to force Britain to suppress documents about torture - and saying that the U.S. position apparently hadn't changed with Obama coming in:

http://business.timesonline.co.uk/tol/business/law/article5661291.ece

This includes ACLU Executive Director Romero's letter to Obama about it:

http://rawstory.com/news/2008/ACLU_Hope_flickering_on_torture_after_0204.html

.

The CIA, the upper reaches of the military---how many burrowers are there? How many people who are more loyal to rightwing ideology than their nation?

There are already indications of people in the upper reaches of the decisionmaking apparatus who are jockeying to block Obama's plans to get out of Iraq. There are many others who have a vested interest in blocking any executive branch inqueries into torture and imprisonment at Guantanamo and the black sites.

I think that it is very possible, even likely, that there are people in agencies such as the CIA who would allow an asassination of Obama himself or allow a terrorist attack against the US to discredit him. It would be difficult to pull off without getting caught, of course, but I think that it is naive to assume that there aren't people who will slow the information flow or disfort it in the quiet hope that they can sabotage their agency's function and get away with it.

It is too easy for good people to underestimate the bad nature of some of the folks involved either directly in the torture or in the heirarchy that ordered it.

I'm not excusing the Obama administration on the secrets issue. I'm just pointing our that Obama and his appointees are in the position of trying to govern through agencies that certainly are infested with people who would perfer that he died or was discredited.


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.

But it might well be the method of Obama's choice, given that he actively does not want to have Americans responsible for torture of prisoners investigated/prosecuted.

Not completely sure whether the president is entitled to ALL info. An (in)famous case were the 'Purple' transcripts of Japanese secret communicatons before Pearl Harbor. Because some of those were found in a WH waste-basket the president was taken off the list of recipients for some time.
That has of course nothing to do with the case at hand on which I will not currently comment.

he has been brutally tortured, including some form of genital mutilation or electrocution.

I have occasionally said here that, IMO, we would likely want to give most of the rank and file folks who actually did the 'aggressive' interrogating a pass. The focus of investigation should be on the folks who set policy, and less on those who were obliged to carry it out and, in many cases, likely did so in good faith.

Let's assume, for a moment, that the reports of what was done to Mohamed are true.

If so, I take it back. There is no f'ing way on earth that you can be cutting somebody's genitals with a scalpel and not have it occur to you that something is very, very wrong with the picture.

If that doesn't make you say, "I'm sorry, I don't think I can carry out that order", I'm not sure what would.

I appreciate that Obama's walking not just one, but a number of tightropes, and I appreciate that he hasn't even been President for a month yet. But IMO we really need a bright line drawn here, and let the chips fall where they may.

Regarding the plausibility of Clive's claim: I worked briefly on some of the Guantanamo cases in 2007. Clive Stafford-Smith was an absolutely top-notch attorney, who, during the time I was involved in the clinic, wasn't given to making completely baseless claims. We obviously can't evaluate the claim until we learn Clive's basis for saying so, but he has an enormous amount of credibility among the Guantanamo "habeas bar."

It may be implausible, but that doesn't mean it's impossible.

Was it Americans or Moroccans who allegedly tortured Binyam Mohamed? I got the impression we rendered him to Morocco. Is that not the case?

I've seen this sort of thing with discovery materials in some of my cases, where the other side is claiming the right to redact based on some form of privilege--I get back my own letters to them, redacted. It ordinarily reflects a lack of intelligence on the part of the person doing the redacting, rather than anything sinister.

JamesNoStack: As far as I can tell, what Clive Stafford-Smith claims to know from his own experience is: that he got a copy of the letter back that had two pages blacked out. That Obama's copy was also blacked out, to keep him from seeing what was in those two pages, is something he seems to be inferring from that. I do not question his sincerity; I do question the plausibility of that inference.

Probably both, Gromit. But the genital-slicing is alleged to have happened in Morocco.

http://www.reprieve.org.uk/casework_binyammohammed.htm

Mohamed's lawyer

Clive Stafford-Smith's firm is acting but so is Lt-Col Yvonne Bradley, his Detailed Military Defense Counsel, who has been in the UK this week. She seems to be doing a great job.

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.

But as you say the charges were dropped months ago. How is this substantially different from Bush policy? Detainees against whom charges were dropped were also released under the previous administration.

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?

Of course not! But making that claim is somewhat reasonable: the alternative is to say "Obama say this letter in its unedited glory and was unswayed". That implies that either Obama does not care about torture, or the lawyer made very poor arguments in the letter, or both.

Was it Americans or Moroccans who allegedly tortured Binyam Mohamed?

It doesn't really matter, does it? It's like paying someone to kill somebody instead of doing it yourself, that's the problem with extraordinary rendition.

Also, torture is alive and well under Obama since the Army Field Manual still contains Appendix M.

Novakant, the only way it might matter is with regard to Russell's comment: if an American soldier did such things with his own hands, or was in the room when they were done, "I didn't know this was unusual or wrong" would really not fly as an excuse. Not that it necessarily matters which vile excuse they pick (and certainly not to imply that we're inherently more virtuous than Moroccans), but I'm in favor of denying them every excuse possible.

Thanks, Hob. You are right, my question was intended as a followup to russell's comment, which seemed to imply that Americans did the actual torturing, and therefore should be held fully accountable for following clearly illegal orders (a position with which will I agree, if this turns out to be the case). But my impression was that the torture in question was done by Moroccan interrogators, and I was asking for clarification.

Not to say that foreign torturers should get a pass, of course, just that holding them accountable is a much thornier question that I don't think russell meant to address.

russell's comment, which seemed to imply that Americans did the actual torturing

Yes, I was thinking that was the case. Or might be the case.

Probably (apparently? thankfully? hopefully?) my mistake, sorry folks!

Hilzoy,

I don't follow the claim that this demonstrates "something beyond blank indifference" on Obama's/the Administration's part.

How does his presumed impending release logically entail their non-indifference to Mohamed's plight?

Why release him now (after the SS argument is unapologetically dropped on the court a few days ago)? Isn't it quite possible that the Admin released him in the belated hopes of calming, at least to some extent, the gathering storm? The "civil libertarian's" reaction they may have anticipated, along with the rest of the hippies, but perhaps not NYT editorials, the uproar in the UK, or the re-introduction of the State Secrets Protection Act.

Lt. Col. Yvonne Bradley, Binyam Mohamed's military lawyer, is as responsible as anyone for the British government's finally inching toward doing the decent thing. She traveled to England last week to meet with government people and to publicize Mohamed's fragile physical condition and that of the the 50 prisoners on hunger strike.

Good on Clive Stafford for publicizing the Kafka-esque redaction of his own client's letter. By posing the question of whether the information in it was kept from Obama, he implictly raises the serious issue of Obama's obligations should he become undeniably aware of what was done to Mohamed at the behest of the U.S. government.

Finally, I want to note as a followup to the earlier discussion here of the Obama DoJ's broad assertion of state secrets privilege that there is no support for the "we really want to get overrruled" theory that some commenters desperate to absolve the new administration have put forward.

This can be deduced from the administration's justifications for the action taken in Mohamed v. Jeppesen Dataplan, which are being put forward by a DoJ official, anonymously, through the stenographic medium of Marc Ambinder.

However, the failure of AG Holder or any other high official at Justice to speak publicly, on the record, and meet actual arguments and objections, means it is still not possible to determine the administration's "official" justification. This lack of accountability and willingness to feed into journalism-as-stenography-for-access is almost as disappointing as the broad assertion of state secrets privilege itself.

No one asked President Obama about the issue at his press conference this week. Let's hope press conferences are frequent and regular enough to encourage some reporter to probe beyond the dishonest and weak excuses offered by the cowardly DoJ official.

On the somewhat related topic of John Yoo, it's curious that two things happened today:

(1) Brad DeLong posted the following, apparently an excerpt of an e-mail he received:

[T]he [Justice Department's] O[ffice of] P[rofessional] R[esponsibility]... came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney General Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is... for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity...

(2) The post with that quotation later disappeared from DeLong's site. (See Emptywheel for the quoted text.)

No idea what's up, unless someone didn't like his e-mail being quoted.

/threadjack

Horrors. This gives me chills even to think about.

(2) The post with that quotation later disappeared from DeLong's site.

Really? Did he delete my comment too? the bast@ard!

No idea what's up, unless someone didn't like his e-mail being quoted.

Likely. Especially if only a few folks know what is in the report.

Did he delete my comment too? the bast@ard!

Could've been worse -- he could've deleted his whole blog. God knows what that makes *me* ... got any more "@" symbols?

KM, one theory on why Binyam Mohammed may be sent back to the UK now is that it will be less damaging to the US than if he, a British resident albeit not a citizen, dies (on hunger strike and force fed) in Guantanamo Bay. So, yes, it's the 'gathering storm' -- but I think they may have seen it coming.


This is not to detract from Yvonne Bradley's work on his behalf.

However, the failure of AG Holder or any other high official at Justice to speak publicly, on the record, and meet actual arguments and objections, means it is still not possible to determine the administration's "official" justification.

Why would Holder or anyone else make any further public statements than those which have already been made? Clearly whatever the Obama administration plans to do about Guantanamo prisoners will be done case by case, and what it plans to do about past acts of torture will probably be a more broad-based policy. Why do people doubt Obama's good faith at this point based on the litigation of a civil case that only indirectly involves the government (as far as damages are concerned)? The particular case in question is not a truth commission, and it's a poor forum to establish a broad based policy.

Could've been worse -- he could've deleted his whole blog. God knows what that makes *me* ... got any more "@" symbols?

Um...nope222. Interesting that he deleted it though, seems like major news if true (though as you noted there before deletion, unsourced and uncited).

I wonder if there is evidence that Yoo was told "provide reasoning for conclusion X", and he happily complied. I do know CIA asked whether they could do X (whether they asked before or after they did it is another matter).

Sapient: Why would Holder or anyone else make any further public statements than those which have already been made?

If there's no reason to say anything further, then why is a Justice Dept. source defending them from criticism? Why not just maintain a lofty silence?

As to why impute bad faith: They ran on a promise not to assert the privilege in a way that would kill off cases. They could have asked for an extension, or not contested the ACLU position and indicated that they'd assert the privilege over particular kinds of evidence and testimony. They did just what the Bush regime did, with the same kind of tone and arguments (threatening federal judges that they were "playing with fire"? Way to set a new tone.)

And their reaction further indicates bad faith. Read the Ambinder articles (links at the Greenwald link in my comment). They're offering defensive and dishonest justifications, and won't go on the record.

The 'truth commission' hyperbole/strawman isn't helpful. The case is important for two reasons:

1. It's the only remaining avenue for legal redress for victims of rendition. Suits directly against the government have been shown to be impossible -- both because judges ruled that government actors couldn't be sued for doing things in the line of duty, and because judges accepted the Bush DoJ's assertion of the state secrets privilege (without even trying to take a look at the evidence to see if the assertion had a basis).

2. To some extent the case is also important as an investigation. Other countries' willingness to put the facts on the record are the basis for most of what we know now, but there's still a great deal that we don't know. Asserting the privilege broadly kills the case, prevents any evidence being entered into the record in a U.S. court about U.S. rendition to torture.

Why do people doubt Obama's good faith at this point based on the litigation of a civil case that only indirectly involves the government (as far as damages are concerned)?

Nell answered this exactly right. Some crumbs: To carp at the generous phrasing there, the DOJ is not "litigating" this civil case, they're having it terminated. Turned off, not by the original state secrets privilege but by the Bush stretch of it.

And they have the option not to do so. Even if the issue really is still-concealed important secret information that might come up or be crucial, rather than secret crimes, they have the option to show that classified information only to the judge in camera.

But, with the option not to do this, they are doing this. Given that they are, why is Sapient taking this controversy to be a matter of people doubting Obama's future intentions on some other or larger canvas, rather than of people observing a positive act that is being done now? What makes this such a trivial window-dressing matter? Is the DOJ justified in cancelling these victims' lawsuit, and justified so solidly in doing it as to remove all reason for concern, because

the particular case in question is not a truth commission, and it's a poor forum to establish a broad based policy

... so, because it's not Obama's show and it might clutter the stage for his show? Why not allow this suit to run anyway, or also?

(The trivialization or distancing in this is a bit surreal. It's like the perspective of the guy standing in the midst of a bank robbery and saying, "I don't get it - why do you suspect these people of harboring future dishonesty? Because of this business with this fake bank? This isn't the real bank!" Whatever we could accuse people of who are worried about this case, it isn't exactly "jumping at shadows".)

What makes this such a trivial window-dressing matter? Is the DOJ justified in cancelling these victims' lawsuit

And apart from all those pesky moral and legal considerations, I don't see how this was a good move to make in the name of "political expediency" either, considering how much fallout it has already generated?

The trivialization or distancing in this is a bit surreal. It's like the perspective of the guy standing in the midst of a bank robbery and saying, "I don't get it - why do you suspect these people of harboring future dishonesty? Because of this business with this fake bank? This isn't the real bank!"

there are some amusing examples of this genre in the comments here.

Whatever we could accuse people of who are worried about this case

"ideologue" appears to be one option...

As to why impute bad faith: They ran on a promise not to assert the privilege in a way that would kill off cases.

Quite so.

Obama's been in less than a month, and he inherited a whole bucket full of astounding clusterf**ks to sort out. The man has a lot on his plate.

But George Bush is not president anymore. Obama is. The decisions that are made from here on out are *his* decisions.

If he continues the bad policies of the Bush years, they are no longer Bush's bad policies. They become Obama's.

Maybe the state secrets thing was just a bad decision, a moment of wrong-footedness inspired by the general miasma of crap that needs sorting out. But it was, IMVHO, a really bad decision, and one that nobody appears to be trying to walk back.

Bush isn't president anymore. For which, I am, daily, grateful. But what happens from here on belongs to Obama.

This isn't what I was looking for when I voted back in November.

This is my first serious disappointment. I'm a little disappointed that Obama apparently actually believed that it was possible to negotiate in good faith with Congressional Republicans--it bothers me that he was so naive--but it appears that he has learned his lesson. If he hasn't, that will be my next serious disappointment.

wonkie - If it turns out that the Obama DOJ stayed the Bush course in turning off this case in service to being able to negotiate in good faith with the Republicans - "'turn down the heat' about stuff like this rendition thing and they'll be more likely to 'snap out of' the partisanship and we can work together like professionals" (sort of like Obama's hopeful attitude at the beginning of the stimulus negotiations) - would that be a third disappointment, or a sweller of the first one or two?

Haven't a clue, but that might be one possible explanation. :o(

What happened to the plaintiffs in this case is horrific. No amount of legal damages or restitution can appropriately compensate them for the torture that they endured, but I certainly hope that they receive money from everyone who knowingly participated.

However, Nell is mistaken when s/he says that the case is the "only legal redress" available to these plaintiffs. Alex Russell is unfair when s/he states that it's trivializing the issues when I suggest the possibility that the Obama administration might be working on a more comprehensive plan for dealing with the abuses.

Who is primarily responsible for the suffering of these plaintiffs? Answer: The Bush administration and the cooperating governments, not their travel agents.

To analogize: Should a bus company be held liable for transporting prisoners to a state prison facility where instances of prisoner abuse have been reported? If a prisoner is abused in the facility, should he sue the bus company? Even if the prisoner has a claim against the bus company, should the bus company be held liable even if the abusers face no consequences?

If plaintiffs succeed on the "merits" of this case, the government's travel company is held responsible for all of the abuses that occurred. I don't necessarily disagree that they should share in liability, except that if it truly is the "only legal redress" for the torture victims to, in essence, sue the bus company, does this make sense as a matter of public policy? Wouldn't it be better for Congress to enact legislation paying retribution from the government to its torture victims rather than holding the travel agents liable? If Congress enacted retribution legislation, this would be far better "legal redress". It is an available avenue for the victims.

I'm generally not in favor of the state secrets defense as an absolute defense to a lawsuit. However, I don't agree that it's a breach of faith for Obama to want to protect government contractors from liability IF he has a good solution to hold the real perpetrators liable and to do something substantial for the victims.

The law holds the government exempt from liability based on sovereign immunity, etc. This is the real injustice in these cases because it requires plaintiffs to seek redress from those who are only tangentially responsible (with undetermined success). The real culprits (the governments) get off free.

I'm generally not in favor of the state secrets defense as an absolute defense to a lawsuit. However, I don't agree that it's a breach of faith for Obama to want to protect government contractors from liability

The breach of faith is invoking the state secrets defense to get cases thrown out of court, after running on a promise to fight it.

--

If it turns out that the Obama DOJ stayed the Bush course in turning off this case in service to being able to negotiate in good faith with the Republicans [...] would that be a third disappointment, or a sweller of the first one or two?

Maybe I'm just a naive European, but wouldn't exchanging legal immunity for political favors be rather serious corruption in itself?

Sapient,

I think I can point to where we differ here pretty clearly.

First: If the people at this company who helped the CIA with its torture-renditions transfers - knowing full well what they were assisting, the lawyers for the plaintiffs say that testimony will show, incidentally - are in fact found liable, it is not true that "the government's travel company is held responsible for all of the abuses that occurred." Not in any sense of all the blame being taken by the company so that none of the blame goes where the blame belongs. The company would be held responsible for aiding and abetting illegal and abusive actions by the government. The verdict, and the record of the proceedings, would help to make clear and underline the nature of the government's program for the purposes of any other inquiry or legal proceedings against the government actors themselves. A punitive outcome of this case would complement any other actions yet to come, not conflict with them.

That is where I disagree with you on the question of strategic necessity of cancelling this case from Obama's point of view. On the other hand, if the question is not strategic, but is a matter of whether these agents of the government's travel company "should" be hit with this portion of the blame for the government's illegal misconduct as a matter of justice, because "they were only flying routes" or otherwise... that would be a question that a court could and would weigh.

As to the matter of whether abuse of the state secrets privilege is really involved here, or whether the hubbub about it here is instead an overblown reaction...

You wrote, "I don't agree that it's a breach of faith for Obama to want to protect government contractors from liability IF he has a good solution to hold the real perpetrators liable and to do something substantial for the victims." This is arguable as a pure construct about "whether wanting to protect contractors is a breach of faith" on the general issue of torture and torture-renditions, yes, supposing that that IF is real and comes through.

However, if the question is about abuse of the state secrets privilege, Obama "wanting to protect government contractors from liability" isn't the issue, nor is the future good solution he may possibly intend or the plans he may have. Sapient, suppose that what you are saying is correct.

What your summary is describing, accepting, and actually endorsing, is a use of the state secrets privilege to turn off this case, not because of the necessity of doing so in order to safeguard government secrets that invocation of the state secrets privilege alleges, but as a pretext to dismiss the suit because of other reasons or a strategic conception under which that suit might not be desired. That is abuse of the state secrets privilege. That is what abuse of it is.

Even the most heedlessly excessive termination of cases for real and sole reasons of protecting government secrets, when the secrets could have been protected without such steps, is not abuse of it compared to that.

And you don't seem even to have blinked at this. I haven't doubted the genuineness of your puzzlement at the concerns about abuse. You wrote that "Alex Russell is unfair when s/he states that it's trivializing the issues when I suggest the possibility that the Obama administration might be working on a more comprehensive plan for dealing with the abuses." I'm sorry that I seemed unfair, but it would be more accurate to say that I think it's trivializing the issue when you suggest that this question of whether an abuse has been done here hinges on that possibility.

As to the question of whether invocation of the state secrets privilege is "abuse" of that privilege, we can't know that. This is the problem with the concept of the privilege. It is my belief that the facts should be presented not only to the court but to the American people in a manner that allows us all to understand what went on in our names. I accept that certain aspects of the evidence should perhaps remain classified if they would, say, harm innocent people if disclosed, but I don't think a democracy can afford to make entire chunks of its foreign policy secret. But again we're talking about policy which should be a political consideration rather than a judicial one. Let me emphasize again, I personally wouldn't object to the case going forward, etc. I just don't think that a lawyer for the government needs to (or even has the ethical option to) ignore legitimate legal tools when the outcome of his client's interests depend on their use. In this case, the government is the client, and the government's interests are 1) to protect national security, and 2) to design a comprehensive program to address the abuses that were perpetrated by the former administration. If the state secrets act can lawfully be invoked, it can't be ethically ignored by a lawyer (although it can be shot down by the judges if they don't agree that it applies). That's why it's important, if we don't like the privilege, to support the legislation described in Hilzoy's post. (If I'm a lawyer representing a murderer, and the exclusionary rule seems like an available option for defense of the case, it doesn't matter whether I "believe in" the exclusionary rule. What matters is that I keep my client from going to jail.)

As to Obama's campaign promises, I never read anything saying that Obama would never again use the state secrets defense. I just saw that he believed that the Bush administration abused it by using it too often in a manner that didn't serve the ends of justice. We cannot fairly ascertain the extent to which its use is "abuse". For all we know, some of the legitimately withheld evidence may exonerate the defendants from liability. The case can't fairly be tried if that's true.

Alex Russell, I don't disagree with your view of things generally. I would support curtailing the state secrets privilege by legislation. I just don't think that the public can adequately assess the motives of the justice department in using the defense when it is still legitimately available to them in particular cases, and I'm not prepared to let Obama stand accused of being equivalent to Bush until his entire policy becomes more apparent. The difficult challenges that are intrinsic to his nascent policy are real, and the rights and duties of everyone involved could be affected by pending civil litigation. If he doesn't soon address these issues, I'll be disappointed, but the justice department is in a shambles, the Guantanamo case files are in a wreck, and Obama is facing various other national catastrophes. I'm willing to wait a few more weeks.

Sapient - A couple of distinctions:

I haven't been interested in the frame of fulfillment of campaign promises in this area (as windy has, and has meant by "breach of faith") in thinking about this question. I'm also not greatly interested in whether Obama is, or is not, as bad as Bush. If he was it would be awful (especially considering I enthusiastically voted for Obama), but as yet I am just trying to observe Obama and his administration in themselves.

Choosing anything about that for reasons of defending Obama ("I'm not going to let people say that Obama is as bad as Bush...") is not something I'd be interested in either. From the day he was elected, he has been a new President I hope for things from, but otherwise I'll say he's right or wrong on this or that if I think he is or isn't.

On this question, I think we've gone over most of both our takes on the picture. I don't think we need to be chewing our food twice, so I'll leave it after this post, but I want to point out: In the post previous to your most recent one, you were talking about the advantages of getting this case dismissed, and my reply said what I think use of the state secrets privilege for any such reasons is, direct abuse.

(One thing I didn't say then was that the lodestar that you were using to make noncontradictory sense of this situation - the actual plan of actions, whether prosecutions or truth and reconciliation commissions, that Obama is going to develop and bring in as his approach to all this - is a great deal less compelling to others who in fact take that lodestar, not as an invisible approaching reality, but as an "x" or a question mark, with an additional possibility being neglect or obfuscation, that they are very concerned about finding out about. Such people were not being unreasonable in thinking that they might have got their first clue beyond rhetoric about it from this action on the 9th and possibly also from the Obama Administration apparently not changing course in threatening Britain to keep them from revealing documentation that a prisoner had been tortured. The obvious lodestar that should have banished such worries... well, it isn't obvious, and it shouldn't have.)

In your most recent comment, you do not continue this; you instead do talk about the use of the state secrets privilege here possibly being justified in the only way it could be - as actually necessary in order to protect vital secrets still out of view of the world. What I want to emphasize is how very small the window for this being true is. We are talking about a case in which it is possible that the case could be brought entirely without revelation of classified documents or any information that isn't already public knowledge, because so much has come out. If the lawyers for the five are prepared to try to go forward on that basis, how can use of the state secrets privilege be justified? On the other hand, if classified information is in fact needed to fill in some decision-making juncture in the case - again, that may not even be true - it is very difficult to think of why that particular information could not be shown only to the judge in camera, with the judge not explaining that information in the eventual decision. Or the government could refuse to supply that particular information and the suit would be forced to either fold or to go forward and try to win just on other information. Only if the case inherently consisted of revelation of important still-unknown-to-the-world information would the state secrets privilege be justified. I cannot say that this is impossible, but - even given the limited state of our knowledge talking about it - the possibility for this to be true is very weak. (The Bush stretch of this to the position that the crimes in question are state secrets... well.)

Unless you look at this situation and change your mind, I think we can't really go any further in our disagreement, because you're not seeing anything wrong with a use of the state secrets privilege. Or, not if it's by the good guys. You are seeing this just as pragmatic, "a tool to be used". This peculiar use under these peculiar circumstances notwithstanding. (You wrote, "when [the state secrets privilege] is still legitimately available to them in particular cases", and before I began writing this I spent some time blinking at the lack of boundaries on that.) You compared this to a lawyer using the exclusionary rule for h/ir client even if s/he doesn't agree with it. My problem with your comparison: The application of the exclusionary rule is well-defined. And what would have to be under discussion is a possible fraudulent abuse of the exclusionary rule. I could ask you to define what is an abuse of the state secrets privilege?, but I think I already understand.

I don't think judging this stuff by loyalty or by faith in someone is a good thing. If you want to wait a few more weeks, if you want to wait until Obama's policy comes into focus, fine. But that's different from (sincerely and honestly) saying in the short term that you just don't see how this looks so bad.

A much shorter comment: The state secrets privilege is not just a present reality that we agree should be changed. (We do agree that it should be changed.) It is a law - that needs to be used lawfully, as specified by the law. Not every kind of use of it is a lawful use of it, and it's sure not true that a use of it is lawful simply because it can be used.

If the administration took this position because it is planning to introduce legislation to deal with such matters more sensibly -- and I strongly doubt that premise -- then it would be a good idea to get the legislation out. It would be easy enough to create a claims process, where accepting compensation requires the release of all claims against contractors etc.

I just don't see any evidence at all of interest in creating an administrative compensation system.

Alex Russell, you said that the state secrets privilege "is a law - that needs to be used lawfully, as specified by the law." It is law, but not "a law" as a statute is a law. It is a common law theory of defense which, in its most recent form, the Supreme Court has accepted (in the Reynolds case, based on a fraudulent representation of facts) as a prerogative of the Executive branch. If the court accepts the government's invocation of the privilege in this case, it is almost by definition a lawful use of the privilege. In other words, it's not bloggers and commentators who decide whether it's lawful. It's the court. So the Ninth Circuit can now decide whether or not the Government has properly invoked the defense.

Also, although enough information has been released to convince the blogging world that the plaintiffs have made a case against the defendants, but have the defendants been privy to enough information to mount an effective defense? That's a huge issue that no one has bothered to raise. If only half the evidence is available, and that half supports the plaintiffs, but the defendants' lawyer can't even see material that may provide a defense to the defendant travel people, how is this fair?

Do you see how ideal political results sometimes differ from issues of private rights?

"An (in)famous case were the 'Purple' transcripts of Japanese secret communicatons before Pearl Harbor. Because some of those were found in a WH waste-basket the president was taken off the list of recipients for some time."

I'd like a cite on that, and from a non-revisionist source, please. Thanks muchly!

(The usually circulated story by the revisionists is that an intercept from the Japanese said that they thought their messages were being intercepted, and thus the CINC-PAC and others in Hawaii were removed from the circulated raw messages list, including allegedly briefly FDR -- of course, this story is brought to us by the folks who are all about "proving" that FDR deliberately invited the attack on Pearl Harbor -- anyway about it, I'd like to see a cite to a reputable source before believing a word of any of it; thanks.)

"Also, torture is alive and well under Obama since the Army Field Manual still contains Appendix M."

Perhaps I'm misreading, but so far as I can tell, the support for these claims about "separation" appear to be purely the opinion of the writer of the article. There appears to be no actual cite to any actual source. It seems to simply be assertion out of... nothing. There's no actual cite to a word of Appendix M.

Can you clarify what I'm missing, please, and what actual sources might support the writer's assertion? I'd really like to know whether or not this is true or not. I'd really like to see a cite to something more substantial than pure opinion of a writer, substantiated by nothing other than his own opinion.

Thanks muchly for any help with this.

I think the incident that Hartmut is referring to is here (it's a google cache, the pdf is here) on page 9. The pdf references a 'famous incident', and I believe that I've read it in several non-revisionists sources. While the revisionists (or at least one set of them) wish to establish that FDR knew about the Pearl Harbor strike, this story comes up in the context of Army-Navy bickering over control and report and the key is that rather than keep FDR out of the loop, the reports were no longer verbatim. I think this claim gets morphed into various notions concerning FDR's intent to draw the US into the war, so the internet is not really a good place to find cites cause you get overwhelmed with various conspiracy theories. Anyway, I've not read anything about it in the past decade or so, so I'm not quite sure where is the best place to locate the historical consensus.

btw, nice to see you back.

Also, although enough information has been released to convince the blogging world that the plaintiffs have made a case against the defendants, but have the defendants been privy to enough information to mount an effective defense? That's a huge issue that no one has bothered to raise. If only half the evidence is available, and that half supports the plaintiffs, but the defendants' lawyer can't even see material that may provide a defense to the defendant travel people, how is this fair?

Sapient - A crucial point here is that the defendants themselves know the operational details they had to do with, and how they knew about them. In that information is any information that would provide them a defense. Information that they didn't know and had nothing to do with would not help exculpate them. They can and will discuss this with their lawyer. It is quite possible that some of this information is, or the government may think of it as, the sort of still-important still-secret information we've been talking about.

In that case: What I and others have been talking about as an alternative to shutting off the case through the state secrets privilege - in the event that protection of information that was still secret and vital to keep that way was really the issue and reason - has been a situation where still-secret but case-crucial classified information is shown only to the judge in camera. The same thing happens here. The attorney and the judge can arrange this private disclosure and discussion, probably with a separate lawyer for the government consulting on the decision to do the in camera revelation and being present at it. The one-sided situation you describe as a result of the case being allowed to go forward simply does not happen.

There remains the question of whether the lawyer has security clearance to hear what the defendants explain. Either s/he does have such clearance, and the company had brains enough to make sure if it beforehand in case anything went wrong and the government had brains enough to allow it, in which case the in camera disclosure and discussion takes place; or s/he doesn't (or doesn't have sufficient clearance in the government's eyes in this case) and the government won't allow the company to get one who does, and s/he will ask for the in camera conference anyway, the government will object, and the judge will grant it ... and the government then has the unpleasant public option of trying to make trouble for the company because it wouldn't allow the company the power to defend itself in a culpable mess that the government got it into. Which would take place in a context of secrets not having been exposed in any case.

It is an interesting angle, Sapient, but I don't think it works as a pivotal objection to allowing a suit to go forward in any case that may involve classified information. (You wrote, "Do you see how Do you see how ideal political results sometimes differ from issues of private rights?" I'm not sure in this case which end you meant by the ideal political results and which end you meant by the private rights, but, to make a sweeping summary, sweeping summaries like that are usually oversweeping.)

A problem I have is that I do not think that you concluded that this point was solid, along with some others, because you were considering alternatives. I think that you did so because you were looking for reasons for there to have been nothing wrong with the state secret privilege's invocation in this case, or for it to have been positively required in this case.

And you are selecting things this way because you are trying to defend Obama, his reputation or the enthusiasm about him or his political inertia. This is a mistake. If Obama turns out to be as good as we hope he is, if he turns out to be even better, it is still a mistake.

Your other point, about the privilege being a judicial creation and a theory adopted by the Supreme Court, such that "if the court accepts the government's invocation of the privilege in this case, it is almost by definition a lawful use of the privilege"... So should I take that as implying that the reasons why the Supreme Court chose to institute the privilege don't matter if a court nods at an invocation of the privilege by name (hence, no reason to carp about the differences between the original version of the state secrets privilege and the Bush Administration's proposed version) - or that people who are thinking about this (including "bloggers and commentators") should not be trying to think like judges? Or, what is this nonsense about trying to evaluate this anyway, and who is anyone to do it? ... Above, I'd say you were simply wrong, but with this it's not so simple: are you aware of the oddness of the rules of general interpretation that you're creating in service to this effort?

If it's an issue, defendants should hire a lawyer with a clearance.

CIPA solves the "problem" that led to Reynolds, and the whole defense ought to be simply abrogated. (Sort of in the same way that passage of FOIA killed the common law right of access to government documents.)

More on the OPR report.

The Justice Department’s ethics office is in the final stages of a report that sharply criticizes Bush administration lawyers who wrote legal opinions justifying waterboarding and other harsh interrogation methods, according to department and Congressional officials.

The report, by H. Marshall Jarrett, who leads the department’s Office of Professional Responsibility, would be the first accounting for legal advice that endorsed interrogation techniques historically considered by the United States and other Western countries to be illegal torture. Attorney General Eric H. Holder Jr. will have to decide whether to approve the findings and whether to make them public.

The report is expected to focus on three former officials of the Office of Legal Counsel, the Justice Department office that advises the executive branch on the interpretation of the law. They are John Yoo, a Berkeley law professor, now a visiting professor at Chapman University, who was the primary author of opinions on torture while at the counsel’s office in 2002; Jay S. Bybee, now a judge on the United States Court of Appeals for the Ninth Circuit, who as head of the office signed the 2002 opinions, which were later withdrawn; and Steven G. Bradbury, who wrote three more still-secret opinions on interrogation in 2005, when he was the top lawyer in the counsel’s office.

Etc.

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