Dear Obama Administration,

by hilzoy

Dear Obama administration,

This is just wrong:

"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 could 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.

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.

Comments

[kvenlander]

IANAL, but maybe the lawyers here could comment.

Somebody on teh internets, http://www.balloon-juice.com/?p=16936#comment-1146235>burnspbesq at Balloon Juice:

"I went back and re-read the excerpts from the oral argument that you quoted, and on a second reading I am now convinced that the Government tanked. They want to lose this case, and they want to lose it in a way that creates a precedent for the ages."

Makes me go hmm.

[mulryan]

What the Obama DOJ's decision to follow Bush-Cheney and cry Secret! may indicate is that the torture was worse than we know.

They're in the business of finding out right now. That alone will take months.

[eglantine]

Well said, Hilzoy! Obama's action today is utterly appalling. The elimination of accountability, of the torture victim's right to a remedy, belies Obama's claim that he is committed to ending torture.

[MadRocketScientist]

When will people learn that government tends to accumulate power, not relinquish it. He may have put on a good show at the start, but I doubt he'll make any substantive reduction in the powers previous administrations put in place without the people holding his feet to the fire.

[grackle]

I am particularly glad to see you write this. I thought you were mistaken in your defense of the Obama administration's views on rendition, as you expressed them last week in your exchanges with Darren Hutchinson, in the sense that your optimism was misplaced to the extent of bordering on fantasy. The whole matter of rendition would be clarified if you and others writing about it would drop the euphemism and call it what it should correctly be termed - state sponsored kidnapping, which makes a mockery of even the concept of the rule of law.

[Anthony Damiani]

I, along with you, found this deeply disappointing, in a way that the Bush administration's misdeeds were not. With them, there was a potential electoral remedy-- and honestly, by the end, I'd lost any expectation of basic human decency from them.

[jrudkis]

I think the problem is that, generally, government attorney jobs require that they restrict and reduce the Bill of Rights. Criminal defense attorneys try to expand the bill (ie, search is illegal because X), while prosecutors have to argue that the 4th amendment does not apply because Y.

It really is part of the DNA: when was the last time you heard of a prosecutor telling a judge "we don't want to use the evidence because it was gather in violation of the Constitution"...especially if it is crucial to a case?

I think it is a cultural issue within government legal offices (particularly criminal prosecutors) that they are in essence required to reduce protections afforded to defendants or other Citizens (for non-criminal issues).

While this is an egregious example, it is par for the course.

[Alex Russell]

You wrote calmer than I did, hilzoy. I usually don't reach hysterics in occasional emails to friends about head-explosion news. I reached hysterics. I can only hope that some of it was screened out by the prose.

Checking: not really. Here is some of it: "With the Bushies I got too used to stuff to ask 'what the fuck is this?' with real astonished sincerity, because I had caught on. This or that senseless thing wasn't intended to 'make sense', 'really'; it was intended to work.

"With Obama I'm not there yet. Genuine: What the fuck is this?

"On about three different levels. 1. Secrets that are already public knowledge and publically discussed in The New York Times and everywhere, and also overseas in foreign newspapers and in foreign courts and so on, etc., etc., etc., might get leaked to the public and to the world if a court hears a case that references them. 2. The most apparent reason to continue that Bush Administration position - other than #1 making a lick of sense - is to protect an evil Bush-era program and practice - that Obama has stated, flat out and facing the nation as President, that he rejects and will not continue. ( ... please ... ) Or to protect Bush people from prosecution/lawsuits for it? 3. So these people, that we did THAT to, get no recourse to law, no redress, no anything, for this bullshit reason - according to the Obama Administration - and this is justified because of what?"

They carried this over from the last administration? This?

When I told my mother about it, she wouldn't even believe me. She said I had to have it confused.

[knowdoubt]

Hilzoy, I think you got this one exactly 100% right! It is, indeed a sad day to stand helplessly by and watch "our guy" betray the values and change he espoused. I couldn't help but notice during the commentary on renditions, here and Leon Panetta's testimony in Congress, that they just couldn't quite bring themselves to just slam the door shut on torture. They had to assuage the sensibilities of those who wished to justify torture in those "rare, extraordinary moments” when "it" and only "it" could save the country, by leaving open the option, to go to the President, for you know, whatever is needed in those extraordinary circumstances.

I had to applaud from the sidelines as several of your commentators questioned out loud the moral and ethical propriety of raining explosives down from the sky on the just plain ole vanilla variety of "suspects" and by default anyone else who might be in the vicinity. These kind of actions by the administration demonstrate that, despite the silky rhetoric, there still exists a disconnect between the ethical moral course they claim and their actions. The world is waiting and holding its collective breath to see if we are going to join the world community again and B.O. Is going to need a lot of help living up to our expectations and his promises. I think you did well in calling him out on this one and I hope you and your readers will continue press him for the direction he has promised our country and the world when the forces darkness, left behind by the criminally insane Bush Administration, exert their power and influence in directions that would finish leading this country and our planet into oblivion. Thank you so much, I hadn't given up on you, Respectfully offered in support

[cleek]

i haven't seen anything yet from Obama or his administration that even suggests he's interested in abusing the 'state secrets' power.

When the government has argued against Guantanamo detainees' petitions...

we already know Obama is intent on closing Guantanamo.

I can easily see why we might not want to disclose which other governments we have asked for assistance...

so, you see a need for state secrets, but are angry that Obama isn't choosing to overturn the idea? i hope i'm misreading you.

put me in the "Wait And See" column.

[Ugh]

And the band played on...

[blogbudsman]

Well, he did win the election. I'd be more concerned about the Census. Although the media is more concerned about A-Rod. Hang on hilzoy, you're going to have plenty about which to post.

[Crust]

Great post, however unpleasant to read. A minor correction:

"Here's what was done to one of the defendants"

I think you meant "plaintiffs" not "defendants".

[Nell]

cleek, taking this position in this case is an abuse of the the "state secrets" privilege. Hilzoy makes the point well in her post: there's a difference between claiming the privilege with respect to particular pieces of evidence and using it as a blanket to block any efforts at accountability.

After deliberation and review, the new regime chose to go the blanket route. This is of a piece with their decision not to release Binyam Mohamed, who was told months ago he would be released soon. The reason why he is not on a plane to England today is to keep him silent and away from the press and public, to cover up U.S. and U.K. complicity in horrific torture.

Which, by the way, is ongoing at Guantanamo. Fifty prisoners have been on hunger strike since the 7th anniversary on January 11, and are being strapped down twice a day and force fed, as well as being beaten and abused during "extraction" from their cells. The failure to take control immediately and institute a new regimen of communication and an end to abuse speaks volumes.

Please stop making excuses and face up to what is being done in your name.

[Bernard Yomtov]

I agree 100% with this post.

I am extremely disheartened by this decision.

[hilzoy]

grackle: "optimism was misplaced to the extent of bordering on fantasy"

I believed (and believe) that the LA Times reporter and a lot of the people who based their reactions on his story misread the executive order.

cleek: "so, you see a need for state secrets, but are angry that Obama isn't choosing to overturn the idea? i hope i'm misreading you."

I wrote: "I can see why we would want..." I didn't mean this to impy that we should get our way. In this case, I think we clearly shouldn't.

More generally: I do see a need for state secrets, if that means: things the government wants to keep out of the public domain. Examples that leap to mind are (real) instructions on making portable atomic weapons and the details of the deal we cut with the Soviets to end the Cuban missile crisis (which, if I'm remembering history right, would not have survived had it become public at the time), orders for future troop movements in wartime, etc.

I do not see the need for the privilege in anything like its present form. At a minimum, the government's ability to block stuff should apply only to evidence it has, not to whole areas of discourse, and a judge should examine the evidence in question and the government's arguments about why it needs to be kept secret. I also think that certain kinds of reasons should be explicitly ruled out, partly because they're just wrong, and partly so that the government will not be able to credibly promise to keep them secret. Evidence of torture would be one of them.

[hilzoy]

cleek: minor emendation: "I do see a need for state secrets, if that means: things the government wants to keep out of the public domain." For 'wants to' substitute: should be able to. (Basically: I believe that some things are appropriately classified.)

[Alex Russell]

cleek, you wrote,

"so, you see a need for state secrets, but are angry that Obama isn't choosing to overturn the idea?"

cleek, this is not about "having state secrets" in the generic sense, the government being able to classify some things and keep them concealed and to itself, etc. If there were some particular information that might come up connected to this case that would really be worrisome to national security if revealed, if that were the issue this was, the DOJ could tell that particular information to the judge alone in camera during the proceedings so that it wasn't blabbed in the courtroom. That isn't what's going on.

This is about the DOJ saying that something that is now public knowledge is a state secret under the Reynolds doctrine, and therefore there can be no court proceedings at all - with the judge having to just trust the government about this conclusion - and in this case the extension is that it's the actual crimes, the real offenses that this is about, that are the state secret. Even though it is now generally known - and even though it is true.

[Nell]

From the Center for Constitutional Rights' FAQ on the subject:

The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

Defenders of the state secrets privilege justify it with a “greater good” argument—injustice in the individual case is outweighed by the greater good of protecting national security. But this argument ignores another “greater good” argument: that the greater good is actually served by denying the executive a trump card that would allow it to cover up its abuses of power.

I fail to see how covering up a previous administration's abuse of power is an improvement over covering up their own -- which, by the way, a favorable ruling by the Ninth Circuit panel will also allow the current regime to do.

The courts have shown enormous deference to this dictatorial, bogus "privilege". So those who hold out hope that this is some high-wire gamble, like the Balloon Juice commenter referred to in the first comment above, need to understand what a bad bet that is.

[von]

"I went back and re-read the excerpts from the oral argument that you quoted, and on a second reading I am now convinced that the Government tanked. They want to lose this case, and they want to lose it in a way that creates a precedent for the ages."

My strong sense is that it would be unethical for an attorney to do this. There may be circumstances in which an attorney can properly advance an argument on which her client is indifferent. But to advance an argument that you know that client wants to lose seems beyond the pale. Among other things, the attorney is perpetrating a fraud on the Court: you're making representations to the Court that you know to be false. (It's foolish: what if you win?)

I can't imagine that the DOJ would do that.

[Warren Terra]

According to a post at Balloon Juice, a Balkination blogger headlined their post on this action:

you cover it up, you own it

That sentiment is scary, and contains no small amount of truth. That's why the R's have been so eager to get Obama and his appointees to promise to continue to torture, or at least to cover up past violations, or at least not to prosecute: they want Obama to Own It.

Does anyone know whether there's a significant petition or phone-in campaign being organized?

[Ugh]

Among other things, the attorney is perpetrating a fraud on the Court: you're making representations to the Court that you know to be false.
...
I can't imagine that the DOJ would do that.

I'm pretty sure the DOJ did just that, many many times, during the Bush administration.

[cleek]

Hilzoy makes the point well in her post: there's a difference between claiming the privilege with respect to particular pieces of evidence and using it as a blanket to block any efforts at accountability.

what evidence do you have that Obama's DOJ is trying to "block any efforts at accountability" ? seriously, you're asserting some kind of malicious and sinister intent here. what's your evidence ?

I fail to see how covering up a previous administration's abuse of power

likewise for this. you're implying malicious intent. what evidence do you have?

[Sebastian]

"My strong sense is that it would be unethical for an attorney to do this. There may be circumstances in which an attorney can properly advance an argument on which her client is indifferent. But to advance an argument that you know that client wants to lose seems beyond the pale. Among other things, the attorney is perpetrating a fraud on the Court: you're making representations to the Court that you know to be false. (It's foolish: what if you win?)"

Interestingly I was on a jury recently where the attorney made an argument so bad that I couldn't decide if he were just a complete idiot, or if he were trying to get his client convicted.

On a rape case, with 7 female jurors, including 2 college aged ones, he basically tried "the fat girl wanted it" defense. It was so shocking that the district attorney actually dropped her mouth open when he went there.

[washerdreyer]

cleek, here's the problem: prior to the Bush administration the state secrets doctrine was not used for the purpose of keeping entire cases attempting to show government wrongdoing out of the courts. It was used for far narrower purposes. The Obama DOJ is now endorsing the extraordinarily broad reading of the state secrets doctrine which the Bush administration got courts to accept. It has decided it will make use of this privilege. Since the privilege is bad, this is bad.

[ThatLeftTurnInABQ]

I agree wholeheartedly with hilzoy's post. This is disgusting and deserves to be denounced and opposed. What I want to know at this point is do we have any evidence (apart from Mr. Letter's say so) that this:

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."

is in fact accurate. Normally I don't like to look to "the Czar doesn't know" arguments, but this particular week (and last week) there are a lot of things going on politically at Obama's level, and Holder was only just recently confirmed. Did this case slip through the cracks becausue they weren't paying attention, or is it going to be the administration's declared policy to abuse the state secrets privilege in this manner? And who exactly were "the appropriate officials" who were involved in vetting this argument? Who signed off on this? I want names.

[cleek]

sorry, TLT. your questions are great, but, unfortunately, they are too late. it's already been decided that Obama is equally as bad as Bush. no further evidence is allowed, or asked for.

[Nell]

@cleek: I am implying nothing about "malicious" intent. Stopping the Mohamed v. Jeppesen Dataplan, Inc. suit, which is what the Obama DoJ is seeking to do with this broad assertion of state secrets privilege, will have the actual effect of covering up the previous administration's abuse of power (kidnaping the plaintifs and having them subjected to torture, contracting with a private company and having them file false flight reports, and a thousand unlawful, wrong, and abusive details involved in the actions).

It would be very different if the Obama DoJ were letting the case go forward and asserting the state secrets privilege only with respect to certain lines of discovery or the admissibility of certain kinds of evidence. But the blanket assertion prevents the presentation of any evidence at all, including much that is already in the public domain. It is intended to kill the suit, closing off the possibility in U.S. courts for legal accountability for crimes and abuse of power by the previous regime.

The Obama DoJ's position, if upheld by the court, does open the door to international prosecution, since it forecloses the possibility of redress for the victims here.

At Guantanamo, SWAT teams are beating prisoners to extract them from their cells for forced feeding -- yesterday morning, last night, this morning, tonight, tomorrow morning, tomorrow night... I don't have to impute malicious intent to call that a horrific, abusive practice. It is wrong and should stop. But the Obama DoD would justify it by saying that they are doing this to keep the prisoners alive -- ignoring completely the possibility of dealing with the prisoners in an open and humane way and treating them as normal prisoners with access to lawyers.

In too many important ways, the Obama administration is adopting the actual practice of the Bush administration. Words are not enough. Motives and intentions cannot be allowed to obscure the actual effects of actions.

[Nell]

Warren Terra: Does anyone know whether there's a significant petition or phone-in campaign being organized?

An excellent question, to which the answer right now appears to be 'no'. Another CCR phone-in campaign (asking AG Holder to drop the appeal of Judge Urbina's ruling and allow the Uighurs to be released to the U.S.) gives a number for the office of the AG that is no longer working.

The only phone number I could get for the Department of Justice is a recording that gives you the postal address to write to Holder and the the contact email, then cuts off. Another DoJ office I reached directly offered to switch me to the main switchboard, but when they did so the line also cut off.

Attorney General Eric Holder
Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

[email protected]

IMO letters will be the most effective. Maybe by the time the Ninth Circuit panel rules, there'll be a more focused campaign.

[Warren Terra]

From a Daily Kos recommended diary:

http://www.whitehouse.gov/...

You can also call or write to the President:

The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Phone Numbers

Comments: 202-456-1111
Switchboard: 202-456-1414
FAX: 202-456-2461

TTY/TDD

Comments: 202-456-6213
Visitors Office: 202-456-2121

I left an email at the hyperlink, for whatever it's worth.

[Nell]

@TLT:

I am not inclined to assume that the Department of Justice's representative is lying when he answers direct questions from a federal judge. But let's assume that Mr. Letter's interpretation of "fully vetted" and Attorney General Holder's differ.

That is certainly the impression AG Holder wished to create with his announcement yesterday after the events in the Mohamed case became known that he was ordering a review of how and where the Department asserts states secrets privilege.

I'm interested in learning the answers tothe questions you pose. But I'm not expecting the "we weren't ready" excuse to fly. The ACLU has been in touch with the transition since shortly after the election about this specific case. They asked that the Obama DoJ not contest the suit. They announced as part of their '100 Days' campaign that they would be watching the administration's position in this case as an early sign of their commitment to transparency and accountability.

Holder and Obama were on notice. If the Obama administration had intended to change the position at all, they could have asked for a postponement (to allow time for the review Holder says he's beginning).

cleek, you're being a dick.

[washerdreyer]

Ambinder's most recent post: I'm going to spend some more time on the phone this afternoon attempting to figure out why the Obama Administration ratified the invocation of the state secrets' privilege yesterday. We know what happened; we know how civil libertarians responded; we know that the Justice Department used the occasion to announce a review of other invocations; we know next to nothing about the sequence of events in this case; we know the how, but not the why.

Despite other issues with Ambinder, his sources seme to be good. Could get interesting.

[ThatLeftTurnInABQ]

Holder and Obama were on notice. If the Obama administration had intended to change the position at all, they could have asked for a postponement (to allow time for the review Holder says he's beginning).

Thanks for filling me in Nell. That doesn't sound good. Pending more details I'm still feeling a big agnostic on the question of whether this is malicious or somebody screwed it up really badly, but in either case public outrage and pressure to roll this decision back seem like the best response.

[Nell]

Ambinder had and has excellent Republican sources.

It remains to be seen how much information he will be able to dig out about the sequence of decision making about Mohamed v. Jeppesen in the transition to the new administration's Department of Justice.

[Scott]

Well, as somebody who's never really had a problem with "enhanced interrogation" -- or rendition, for that matter -- I guess I'd just say that the joke's on you for believing that Barack Obama (or any other president) would actually govern that way when given the responsibility of protecting national security.

So much for your widely disseminated rebuttal to the LA Times story on rendition, eh?

I do, anyway, give you some props for consistency. But, sooner or later, you guys are going to have to realize that you're not as grounded in the "reality based community" as you think you are.

[cleek]

I am implying nothing about "malicious" intent.

sorry, but that's just unbelievable. every one of your comments on this thread is dripping with accusations of different kinds of malicious intent - Obama's trying to "block accountability" or "covering up" and how this or that "speaks volumes" (sinister volumes, i assume).

or, i guess you could say you're not "implying" anything, you're making it explicit. doesn't matter either way, though.

none of us know what Obama's long term plan is, here. he has given us a few reasons to fear the worst, and more to hope for the best. most of you choose to jump for the worst. i choose not to.

[cleek]

cleek, you're being a dick.

i'll just note that the person who throws the first personal attack is usually not the "dick" in the exchange.

[Nell]

Further evidence to undermine the idea that somehow this case caught the transitional DoJ unprepared is found in Glenn Greenwald's post today.

The Obama campaign website specifically cited the Bush administration's use of the state secrets privilege to get cases thrown out of court as a problem that they would change when they came in.

If, despite the ACLU's '100 days' recommendations, the priority given to this issue by the campaign, Biden's support in 2008 for Senate legislation to prevent the use of state secrets privilege as a means to dismiss whole cases, and press attention to Binyam Mohamed and the upcoming U.S. case generated by the flap about the U.S. intel threat that shut down his British case, the new Department of Justice did somehow fail to see it coming, and to change Mr. Letter's guidance when he checked in with his new supervisors, then I would have to say that the new administration is not giving the issue of transparency the attention that they have led us to believe they would.

In either event -- simple screw-up or an effort to close off detailed examination of rendition to torture -- I'm not inclined to leave it up to AG Holder and his boss to decide how broadly to apply the state secrets privilege. Congress needs to pass the bill that Hilzoy mentions in her post, which sets limits that should apply to every executive branch, whether well-intentioned or not.

[Scott]

cleek,

I agree that nobody really knows what the administration's long-term plans are on this. Nor are they going to be offering a straightforward answer as to why this decision was made.

If I had to guess, it would be that they're looking at the matter differently the more they learn about the threat matrix and the testimonies of intelligence officials about the arrows in their quiver, so to speak.

I just think that a lot of you who have opposed these practices ask too much. I know you disagree with me -- and that's fine. But I predicted that things wouldn't seem so simple for the president (and those who supported him on these issues) as soon as he sat down at the Resolute desk.

Idealism is great -- when you're out of power. It doesn't work so well when you're the one charged with the responsibility of governing.

[cleek]

If I had to guess, it would be that they're looking at the matter differently the more they learn about the threat matrix and the testimonies of intelligence officials about the arrows in their quiver, so to speak.

yes, i agree 100%.

it may come to pass that Obama ends up doing little or nothing to roll back Bush's abuses, and maybe even indulges his own bloodlust with a few torture authorizations himself. and if that happens, it will be a tragedy. and i will have been proved wrong.

but we aren't there yet.

[Warren Terra]

Um, Scott, leaving aside for a moment the issue of torture, even if torture is the government policy how do you justify surrounding that torture policy with secrecy in a democratic republic?
The question only becomes more pointed when it's about an administration that has forsworn practicing or abetting torture, and therefore is uniquely free to confess past malfeasance, especially in the imediate aftermath of their banning torture. Or do you wish to argue that Obama has in fact decided to again commit torture, despite the clear texts of his executive orders?
There's (obviously) a place for secrecy in government and especially national security, but the State Secrets Exemption is now being routinely used not to protect secrets vital to our national security but instead to avoid embarrassment, so that we don't have to admit to the world what our government has done - what, in other words, our democratic republic has become.

[Kathryn in California]

I'm using this decision as a way to pare down my reading list of political blogs.

If a writer or site doesn't address it at all--acting as if it isn't a problem--then I don't trust them. I want the sites I read to show a commitment to holding government to the rule of law and accountability.

Silence when the administration claims it can disappear a trial entirely--doing exactly what the previous administration did--tells me the writer/ site is planning to have an expedient commitment.

The British Government has as much as admitted that this man was tortured. Or consider Maher Arar's case--the Canadian Government fully admitted this man was tortured in Syria. If Obama gets to use State's Secrets on Arar's lawsuit, if the highest levels of proof are less important than the possibility of embarrassment, then we're setting an example which is worse than the Bush administration's.

Bush, at least, had the weak excuse that the tortured could possibly be terrorists.

[Scott]

Warren, I just think that President Obama isn't going to be tying his own hands. I doubt he's planning on utilizing anything you might consider extreme. But, at the same time, events have a way of changing the landscape in pretty short order. If I had to guess, this is what I'd say it is.

As for secrecy and transparency, it's a tougher question. In many matters, I'm for as much transparency as we could possibly have. But I appreciate that it's not so simple when you're dealing with warfare.

And, make no mistake about it: this is warfare.

I think a lot of disagreements people have about these matters end up coming back to the fundamental question of whether they view this matter through a lens of war or through a lens of criminal justice.

If we were to fight this war without doing things that make us squeamish in a peacetime context, it would be the first in our history.

[novakant]

cleek, I urge you - and anybody else interested in these matters - to read through this:

http://valtin.dailykos.com/

I don't care about Obama, I care solely about policy - and I don't like what I'm seeing.

[Scott]

if that happens, it will be a tragedy. and i will have been proved wrong.

but we aren't there yet.
Well, some think this may be a prelude to getting there. I'm not so sure -- I just think that Obama's keeping his options open as Commander in Chief.

He's going to have to strike a balance here -- which, whether you want to acknowledge it or not, was precisely what his predecessor had to do.

And it's altogether possible that the balance he finds on these matters is going to be something that purists on issues like enhanced interrogation and rendition aren't going to like.

But I would suspect -- emotions and lofty expectations aside -- that they'll end up happier than they were before January 20.

[novakant]

clickable link

[Warren Terra]

Scott, you better hope this isn't in fact "warfare". If you can point out the last abstract noun we've defeated through military force, I'd be interested.

Sure, we face genuine enemies. And there's a role for military force: we need to bomb the heck out of those confirmed terrorists we cannot otherwise reach. But where it's possible we also have to address aspects of our behavior that cause people to harbor terrorists and even become terrorists. Torture is one of those aspects - and in terms of world opinion, adding hypocrisy to torture only makes us less credible and less sympathetic.

[Scott]

Warren, but you'll have a really hard time convincing me that anything we do -- torture or otherwise -- fuels the jihadist movement in anything approaching significance. Who had we tortured to instigate the '93 WTC bombing, the bombings of the USS Cole, the African embassies, or 9/11?

As for whether or not this is actually "war", I never said it was a "war against terrorism". But it's still a war nonetheless -- and not against abstract nouns, either.

Moreover, recognizing that it's a war does not mean that it's solely, or even predominantly, the milieu of the military. So that's a strawman you're knocking down.

There are other, far more important, distinctions between warfare and criminal justice than to what degree we rely on military force.

This issue is one of them.

[Ugh]

Warren, but you'll have a really hard time convincing me that anything we do -- torture or otherwise -- fuels the jihadist movement in anything approaching significance. Who had we tortured to instigate the '93 WTC bombing, the bombings of the USS Cole, the African embassies, or 9/11?

So these people just up and attacked the good ole U.S. of A. because, well, they were bored or something?

[windy]

"But I would suspect -- emotions and lofty expectations aside -- that they'll end up happier"

It's hard to speculate whether some people will be "happier" if we put "emotions aside".

"Moreover, recognizing that it's a war does not mean that it's solely, or even predominantly, the milieu of the military. So that's a strawman you're knocking down."

Is B. Mohamed a prisoner of war?

[Scott]

Ugh, no. Go read Sayyid Qutb's book "Milestones". It's the Mein Kampf of the jihadist movement and is available in an English language translation in many US libraries.

It lays out the intellectual formations of the modern-day jihadist movement. One of Qutb's closest acolytes, in fact, was Ayman al-Zawahiri.

Qutb radicalized while living in the US (as a college professor in Greeley, CO) in the 1940s. His experience here was his first introduction to Western culture and he came to see Westernism as an affront to God -- and something that the Muslim world would adopt if not for the radical imposition of Sharia law.

Upon his return to his native Egypt, he wrote this and a couple other manifestos laying out the framework for what we now know as the Islamist movement.

He eventually became very influential in the Egyptian Muslim Brotherhood organization and mobilized it into, among other things, a failed assassination plot against Egyptian leader Gamal al-Nasser, who they saw as an appeaser of Western liberalism.

In other words, they're motivated by a fear and hatred of pluralist Western culture.

Now, I don't doubt that the jihadists use things we do as propaganda to garner sympathy. So did the Nazis. So did the Soviets. That's part and parcel to being at war with somebody.

I'm not sure we should put that at the top of our list of criteria to support decisions about policy. I just don't think it's going to make much difference in that regard.

[Nell]

cleek, I apologize for saying that you were being a dick.

I was irritated by your failure to distinguish between upholding the existence of state secrets and abusing the "state secrets privilege" to throw whole cases out of court, and further irritated by your failure to acknowledge hilzoy's response to your comment.

I was irritated by your characterization of my comments and those of others sharply critical of this move by Obama's Justice Deparment as "it's already been decided that Obama is equally as bad as Bush. no further evidence is allowed, or asked for", when I made it clear that whether the motivation is good or evil, it cannot be used to trump the actual effect of actions and policies. The outcome is as bad, in terms of justice for torture victims, maintenance of the system of checks and balances, and accountability for criminal behavior, as if this argument had been made by a Justice Dept. lawyer under the Bush administration.

In addition, I've specifically, substantively addressed the legitimate questions TLT raised about whether this could have been a screw-up rather than a deliberate policy.

What you and Scott seem to agree on is this: Despite the bogus and torture-induced character of the supposed threat posed by the plaintiffs in Mohamed v. Jeppesen Dataplan, there are real threats out there that make it imperative for the government to maintain its ability to kidnap people and fly them places secretly. So, to protect one of its prime contractors in this activity, the criminal behavior of that contractor must go unexplored and unpunished.

Not the balance I would have hoped this adminstration would strike. Possibly the judges of the Ninth Circuit will demonstrate better judgment.

[Scott]

Is B. Mohamed a prisoner of war?

Well, under a loose interpretation of the word, yes. But he's not a POW under the auspices of the Geneva Conventions. As AG Holder himself recognized, these particular people are not afforded the protections of the GCs.

And that's hardly a debatable point. Common Article 2 of the GCs is pretty explicit that those who are fighting for some "Power" that is not signatory to the GCs are entitled to the GCs' protections only if the Power on whose behalf they are fighting "accepts and applies the provisions (of the GCs)."

You think the Taliban and AQ accept and apply the provisions of the Geneva Conventions?

So, you're mistaken if you think that the GCs cover any and all armed conflict for all signatory parties. They don't.

[windy]

these particular people are not afforded the protections of the GCs.

London janitors?

You think the Taliban and AQ accept and apply the provisions of the Geneva Conventions?

I didn't say anything about Taliban, AQ or the Geneva conventions.

[Nell]

Scott, thanks so much for helping us all relive the fall and winter of 2001 and 2002. Who'd have thought that the first few weeks of the Obama administration would bring back that magical time? Let's re-have all those arguments about civil liberties and torture and war.

Your presence here is the fulfilment of a prediction made in Greenwald's comment section, about an effect of the DoJ's recent action that, while smaller and not as corrosive to the rule of law and human rights as the suppression of the Mohamed case, does reduce quality of life for blog visitors:

...the Obama DOJ's embrace of Bush's use of the state secrets privilege to shield these crimes from public view will (probably already has) trigger a tidal wave of finger-wagging from the right that this, of course, means civil libertarians have been deeply Unserious about national security all this time.

That is, once Obama "got a chance to sit in the President's chair in the Oval Office" and hear about all the top-secret scary threats to America, he realized that the Bush administration was right to commit all these crimes and egregious uses of secrecy. This will, in turn, serve to "prove" quite usefully that the entire panoply of complaints about rampant Bush lawlessness in the sphere of anything arguably related to national security can be dismissed as fringe and - I dare to say - dangerous.

Resolute desk: check. Characterization of opponents of torture as "purists" and opposition to impunity as "emotional": check. Qutb citation: bonus!

[JanieM]

Yes, it's the finger-wagging in particular that makes me ever so ready to listen up when Scott tells me to "make no mistake about it."

[Scott]

As nice as that is Nell, I'm not really getting anything substantive from it. I'm not a troll. And I'm trying to carry on a mature, serious conversation. If you want to do that, let's do it. If you don't, then I'll move on to converse with those who do.

Mr. Greenwald may not like the implications of Obama's decision in terms of the discussion of these matters, but it does pretty obvious bring some vindication.

It's a lot easier to criticize than it is to replace.

[Scott]

I'm not finger-wagging, Janie. I'm saying that it's a mistake to look at the base nature of this conflict as being a matter of criminal justice and law enforcement -- that it is very much a war.

If you want to make a case against that argument, go right ahead. I'll engage it in a friendly and serious manner.

If you want to just mock, well, then you deserve Glenn Greenwald's label of "unserious".

[JanieM]

Scott, I haven't taken you for a troll, and I do feel that you're being more or less friendly and serious, just perhaps not entirely aware of or in control of the effect your approach and tone are likely to have.

I think that someone who comes on here and tells us, as if from on high, to "make no mistake about it" is finger-wagging. I'm not mocking, I, like Nell, am just irritated. Since you're the one who's asserting that if I disagree with you I'll be making a mistake, I think the burden is on you to make your case that it's a war and not a criminal matter, and I don't see that you've even begun. It's hardly a small enterprise, and since you're the one making the sweeping assertion, I think the burden is on you to support it. I'm not making any assertions about it at all, I'm just saying that being talked down to isn't likely to make me listen more carefully.

Shorter me: "make no mistake about it" is finger-wagging. Telling me what I "deserve" is more of the same.

[Nell]

No, I'm not going to engage someone who defends torture, in however "friendly and serious" a manner. Or the "war" on (some) terrorists. Or overweening executive powers in the service of that "war."

Because we've been through all those discussions a million freaking times. The last eight years didn't go off the rails just because a venal, dim little princeling and his crafty vizier did all the decidin'. There was and is something seriously wrong with the conceptual framework.

When the last regime announced that Geneva Convention protections wouldn't apply to people captured in the "war on terror", I predicted out loud that Guantanamo and the prisons in Afghanistan would be torture chambers. Very, very Unserious thing to say at the time. I was reproved by all the self-styled grownups and hard men keeping me free.

Well, you know what? It's a structural thing. When you erode the rule of law, pull a shroud of secrecy over things, leave the decision-making up to the few people at the top with no checks, it ends up not mattering enough how smart or well-intentioned those people are. And even if they manage to keep a lid on the worst excesses, the not-so-great people who follow them, still with no transparency or checks and balances, are almost bound to take us back into the ditch.

[russell]

that it is very much a war.

If so, then the folks in Guantanamo deserve the status of POW.

If not, then they deserve the treatment mandated by Geneva III:

Noncombatants, combatants who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment. The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples

The quote is from the wiki page on Geneva III.

This country has eschewed torture in the face of much worse threats than Al Qaeda or anyone like them presents, or than Qutb ever dreamed of. We used to actually be a strong voice for humane treatment of prisoners, of any kind. Even if hypocritically so.

Hypocrisy, as they say, is the tribute that vice pays to virtue.

But, no more strong voice from us.

I find the point of view you advocate cowardly and weak, as do I find Obama's position here. And Greenwald's right, this will only, as you say, vindicate folks who hold your position in their own minds.

More's the pity.

I doubt Obama will come out torture. I'm less convinced that he will come out against an expansive reading of state secrets privilege, but we'll see.

Either way, the position Letter presents here sucks.

[Anarch]

Mr. Greenwald may not like the implications of Obama's decision in terms of the discussion of these matters, but it does pretty obvious bring some vindication.

Vindication is one view. Complicity is another. At the moment, I (and apparently many others) are leaning towards the latter.

[herbert browne]

Somehow I think that it's the "considered threat" (considered by the CIA, probably) to relationships with other nations- Britain, Morocco, maybe France, etc- that's the key, here... and a perceived need to tread slowly into these areas, when so much publicity from so many places is prepared to 'sit in judgment' on the new guy, here.
There are a whole lot of ways to expend 'political capital'... and it's not possible to right the wrongs of the last 8 years of Cheney/Bush in even several dozens of pronouncements & pen strokes. ^..^

[Sapient]

I think that it's important to look at the particular case itself, and the parties to the case, and to understand (perhaps) that one of the reasons the Obama administration doesn't want it to go forward is this: this is a torts claim against a private party.

What the plaintiff is suing for in this case isn't vindication of his rights against the government; rather, it's money damages against a company that contracted with the government to do its dirty work. Granted, most of us here wish that all of the people involved in doing Bush's dirty work would be punished, prosecuted, shunned, etc., but the following is what I hope is happening (obviously speculation on my part):

The Obama administration probably would prefer a more cohesive approach to figuring out how to compensate the victims of Bush's extraordinary rendition program, and to determine how to identify and punish the perpetrators. Rather than having random tort suits brought against random government contractors, it might be a better approach to determine which government agents will be subject to investigation/punishment (presumably only high level ones, if any). It's unlikely that the Obama administration would want to allow a precedent to be set that government contractors acting at the behest of Bush should be liable for injuries resulting in Bush administration policies.

In order to get rid of particular cases that might interfere with a more structured policy approach, the state secrets privilege is being asserted. There is a good faith legal argument for it, and it furthers the ends of justice (if one believes that Obama will find alternative ways to bring justice to the victims).

If I were a part of the Obama administration, even if I were in favor of prosecuting those in the government who sponsored torture, I might not want to subject private contractors to significant tort liability.

[cleek]

What you and Scott seem to agree on is this: Despite the bogus and torture-induced character of the supposed threat posed by the plaintiffs in Mohamed v. Jeppesen Dataplan, there are real threats out there that make it imperative for the government to maintain its ability to kidnap people and fly them places secretly.

and here you go jumping to completely unsupported conclusions about me. there's utterly no evidence that i want to "preserve" the govt's self-assumed ability to do any of those things. i've never said anything like that, and i never will. that's just something you created out of thin air heated by your own fevered imagination.

well, at least you're consistent.

[hilzoy]

For what it's worth: (a) since several people seem to think that there's some inconsistency between what I said last week about rendition and what I said in this post, I should say that the two points seem to me quite distinct. One was, essentially, about whether the LA Times reporter had read the Executive Order accurately, and also about whether there was any response to what the person from Human Rights Watch said other than 'wtf??' This one is about a completely different thing. The LA Times story gave me no reason to doubt the Obama administration (except in the sense of making me think he was getting blowback from some people in intelligence, which I would have assumed in any case.) Affirming the state secrets doctrine does.

Also: I think that while this is awful whichever way you slice it, there are more and less awful hypotheses about what happened. The less awful ones start not just with the fact that Holder only just got confirmed, but also with the fact that the documentation on detainees seems to be utterly disorganized. (There are no files, etc.) This means that it might be hard to get a handle on exactly what the deal is with any given detainee: how strong is the evidence against him? who is he anyways? etc. I also imagine e.g. people from the CIA being defensive and describing detainees in the worst possible terms, and various other career people, who were there under Bush, doing what they can to make their decisions seem defensible, which in practice means saying things that support invocation of the state secrets act.

Under these conditions, and given serious time pressure, I can imagine someone taking a position that is risk-averse (from the point of view of the government, though not of course from the position of the plaintiffs.) I hope I wouldn't, but I can imagine it, and I can imagine its not meaning that this is a position the Obama administration will stick to.

I could also imagine that what would come out in court is not just horribly embarrassing about us, but about e.g. some other country, whom we asked for help, and that disclosing it might cause genuinely serious problems, where I am defining "genuinely serious problems" to exclude revelations of Bush administration officials' wrongdoing. And I could see that mattering.

I am not (not! not!) suggesting that any of this would make the decision to invoke the state secrets privilege remotely justified; just that it would affect how I would interpret it, and what I would take it to imply about the future. Worst case: a deliberate decision to extend the Bush policies of secrecy. Best case: a deeply flawed decision made without a lot of necessary background, and under enormous time pressure.

But that's all hypothetical. And after reading as much as I could about this, I was not feeling like extending the benefit of the doubt. Especially since I don't see why, on my best case scenario, they didn't just ask for more time.

[Scott]

If so, then the folks in Guantanamo deserve the status of POW.

If not, then they deserve the treatment mandated by Geneva III

You need to familiarize yourself with Common Article 2 -- which prefaces each of the conventions.

I won't quote it verbatim here, but it essentially says that GC signatories are obliged to respect the tenets of the GCs in all conflicts with powers which are not signatory to the GCs....assuming that those powers abide the GCs themselves.

That said, we could choose to honor the GCs if we wanted to. But it's entirely up to our discretion in this particular conflict -- unless you'd argue that AQ/Taliban respect the GCs in their actions.

The best argument here against rendition, enhanced interrogation, etc. is the moral one. The GCs pretty clearly don't apply. I appreciate the moral argument -- I simply reject it.

Unfortunately, warfare can get as bad as dropping a couple nukes on heavily populated Japanese cities. I've always been morally troubled by HST's decision to do that -- but, then, I wasn't sitting where he was.

War is hell -- and I doubt it'll ever be anything but.

[Scott]

Vindication is one view. Complicity is another. At the moment, I (and apparently many others) are leaning towards the latter.

Only time will tell. BTW, I'm not saying that Obama's action on state secrets justifies any of the Bush Administration's actions. It's a more complex issue than that.

When I said "vindication", I was speaking more about people like me generally holding out that Obama would probably act differently than he sounded during the campaign on these sorts of things.

Glenn can poke fun at it all he wants -- it doesn't change any of the facts here. We can only speculate as to why he's changed course -- but my suspicion is that things look different to him from where he's now sitting.

I'd hope that everybody could at least appreciate that, if not endorse it. I'm one of those rare weirdos who thinks that both GWB and Obama had/have the country's best interests at heart...and that reasonable people can disagree about these things.

[novakant]

Shorter Scott:

1.) we're in a state of perpetual war
2.) war is hell
3.) we can do whatever we want - hooray!

[windy]

Glenn can poke fun at it all he wants

"Fun"? What in hell's name made you think that he's doing this for fun?

[Jesurgislac]

Yeah, well, I admit I didn't expect to be proved right quite so fast.

But it's true, even if Hilzoy won't acknowledge it: Either the Obama administration intended to clean out the approval of torture from the top down - which, given Obama's approval of Bush's Defense Secretary, they evidently didn't - or they would end up going along with what the Bush administration did.

I wish I'd been wrong, and you crazed optimists had been right. The US has had years and years during which it was legal and approved for the US military to torture prisoners. In principle, a new broom could have swept clean - but only if the new broom had been willing to start at the top, and brush down.

[Nell]

@cleek: This is what led me to the conclusion that you agreed with Scott:

Scott: If I had to guess, it would be that they're looking at the matter differently the more they learn about the threat matrix and the testimonies of intelligence officials about the arrows in their quiver, so to speak.

cleek: yes, i agree 100%.

(The "arrow in their quiver" they seek to preserve being rendition flights organized by Jeppesen, not torture. I know you don't agree with Scott on that.)

[Nell]

@windy: Scott's confused about who's poking fun; it was a commenter at Glenn G.'s who foretold the appearance of Scott and his warblogger ilk claiming vindication.

--

Here are the possible explanations advanced so far for the Obama Justice Dept. action in Mohamed v. Jeppesen (not all mutually exclusive):

1- Legal rope-a-dope: Purposeful effort to get a broad denial of state secrets privilege, planning not to appeal the ruling to the full court if that happens, to create legal precedent/cover.

2- Screw-up: a holdover Bushie argued the case because he's the one most familiar with it, no one really reined him in in time. {Have no idea if Douglas Letter is that, it's just a plausible scenario in the 'we weren't ready yet' category. Plus he mouthed off to the judges, telling them they were "playing with fire".}

3- Choke: Excess of caution on this case, because it's early days and Team Obama are afraid to make a mistake wrt any of the prisoners, but will do better once they get to take a deep breath (Holder's review).

4- Unwillingness to hold private contractors accountable for Bush-induced crimes: Fits with Obama's willingness to go along with immunity for the eavesdropping telecoms. Few presidents eager to take on biggest companies at any time, this one certainly shows no signs of stomach for same only a few weeks in.

5- Desire to retain rendition flights as tool in anti-terror kit: How many contractors could or would do what Jeppesen did so capably? They'll just have to figure out how to make it up to the victims some other way.

6- Diplomatic nightmare: Case would likely reveal complicity of countries and people we don't know about yet, and Obama's just not ready for the headaches. There hasn't been time to prepare Country X.

7- No torture accountability at this point: It's all about clean hands going forward; we can't afford the distraction of focusing on the crimes of the previous administration.

Depending on how much benefit of the doubt one wants to extend, and/or how much cognitive dissonance one can tolerate,
there's plausibility in most of these.

Weren't you hoping, though, that we wouldn't have to do this kind of Kremlinology for a while, because we'd have a president who'd be reasonably straight with us about what he was doing and why?

Time to write that letter on behalf of the Uighurs. Let us try what love can do.

[Phil]

I'm still trying to wrap my head around the idea that not a single thing we've ever done has motivated jihadists to attack us -- not a single thing, according to Scott! -- but a single book by Qutb is the sole motivator for all of the attacks. That certainly is morally convenient. Assuming "morally convenient" means "preposterous."

[Sapient]

What would be the result if the State Secrets privilege was not invoked in this case? As to the parties in the case, it might allow the plaintiffs to win a money judgment from Jeppeson. The government is merely an intervening party trying to suppress the evidence. The government suffers not at all. The Bush administration's policies are not adjudicated. The public is not enlightened since if the evidence is classified, it would remain under seal even if the judge could look at it. In other words, Jeppeson, if it lost, would be holding the bag for Rumsfeld and John Yoo.

If I were the new administration, trying to bring an end to the past era, I would be trying to figure out a policy that would assess blame on the people who were most responsible for the problem, and compensate victims according to their suffering.

Although I believe that the American system of civil litigation is a wonderful institution, a random civil action is probably not the best way to fairly solve a problem on this scale, especially one that involves the government during war. This is because even where the state secrets act is not invoked, the government has sovereign immunity as a defense to many civil claims (and, remember, we're not talking about criminal prosecutions). If cases were ONLY brought against the private parties cooperating with the government, the assignment of liability would be terribly skewed.

A better way to do this would be for Congress to enact legislation to compensate victims of certain unlawful acts of the government and its contractors.

In order to get rid of this case and work towards a more comprehensive solution, the government invoked an available legal defense. The State Secrets act was merely a tool to do that. It's a morally neutral tool in this case. We can assign blame if we see that nothing else is done to redress the plaintiff's grievances.

[Scott]

1.) we're in a state of perpetual war
2.) war is hell
3.) we can do whatever we want - hooray!

I never said anything about this war being perpetual -- nor did I say we could do "anything we want."

Is everything really so black-and-white in your world? Because it's not in mine. Obviously there are and should be limits to what we can legally and should morally do. In fact, where those limits are placed is the very crux of the debate.

[Scott]

I'm still trying to wrap my head around the idea that not a single thing we've ever done has motivated jihadists to attack us.

Well, what did we do to provoke, for example, the 1993 WTC attack? Dare to aid the Afghan resistance in their war against the Soviets? What did we to do provoke the storming of the embassy in Iran and the taking of hostages? The Camp David Peace Accords?

FTR, I never said that "one book" is the source of all this. I said that reading the book is a great, first-hand primer on the most predominant strand of jihadist ideology.

You can choose to understand our enemies or not, it really doesn't matter to me. But, if you want to, it's a good place to look.

[russell]

You need to familiarize yourself with Common Article 2 -- which prefaces each of the conventions.

I'm familiar with it.

That said, we could choose to honor the GCs if we wanted to.

Quite so, and historically we always have. Against all sorts of opponents.

I appreciate the moral argument -- I simply reject it.

Yes, that's clear.

Unfortunately, warfare can get as bad as dropping a couple nukes on heavily populated Japanese cities.

Three words: hors de combat.

As a practical matter, you're saying that beating people to death, chaining them to the floor, inducing hypothermia, etc etc etc are all OK with you if it means you might be a little safer.

Not people on the battlefield, not people, innocent or otherwise, that happen to live in an area where active warfare is going on, not people who are currently bearing arms against us.

People who we have captured and hold, completely under our control, with no means of self-defense, and who currently pose absolutely no threat to anyone whatsoever.

Maybe we'll do the beating, maybe we'll send them off to someone else who will do it for us. Either way, you're good with it.

Further, if some of the folks we abuse are innocent, that's just part of the price to be paid. Not by you, of course. By them. But it's OK with you, just as long as you and yours are are, maybe, a little safer.

I think that sucks, and I want no part of it. YMMV.

[Jesurgislac]

Did you use to comment on Slacktivist, Scott?

[Phil]

Well, what did we do to provoke, for example, the 1993 WTC attack?

The common strain among most of the attacks since the Reagan era has been our stance vis a vis Israel. Not to mention our history of misadventure in the region -- you might remember some coups that we've backed, and some war in Iraq back in 1990-1991.

What did we to do provoke the storming of the embassy in Iran and the taking of hostages?

You're kidding, right? You've maybe heard of this guy?

I just find it interesting that you apparently believe that, of all moral agents in the world, the United States alone can act with absolutely no countereffect -- any actions we see in opposition to us occur entirely in a vacuum, or because of the irrational motivations of others. Not because of anything we did, no sir.

You can choose to understand our enemies or not, it really doesn't matter to me. But, if you want to, it's a good place to look.

I read all about Qutb in the same issue of Smithsonian that you did, thanks. In any case, if I had seemingly never heard of Shah Mohammad Reza Pahlavi, I might not be so snotty to others about how well I understood our enemies and they didn't.

[John Thacker]

we already know Obama is intent on closing Guantanamo.

Sure. But the everyday treatment in Supermax prisons like Fort Leavenworth or ADX Florence is worse than waterboarding (which not everyone at Guantanamo faces), and is torture. And the treatment that Mohamed faced here is clearly worse than waterboarding or anything else goes on at Guantanamo. For all its faults, the camp at Guantanamo Bay is more open to the press and inspections than Fort Leavenworth, ADX Florence, or any Moroccan, Pakistani, or Egyptian secret police interrogation room.

And as Leon Panetta said, we're not ending rendition. The other option is apparently moving these prisoners to Supermax prison to endure torture. If closing Guantanamo is simply about getting these prisoners out of public view while giving them arguably worse treatment, what's the point? If it's about continuing to find foreigners to do "torturing that Americans won't do," then what's the point?

[Scott]

Quite so, and historically we always have (honored the GCs). Against all sorts of opponents.

But, still, you do acknowledge that C.A. 2 leaves it to our discretion in this particular case, right?

Personally, I'm not sure we've had conflicts since the ratification of the GCs where C.A. 2 really applied -- until now, anyway.

As a practical matter, you're saying that beating people to death, chaining them to the floor, inducing hypothermia, etc etc etc are all OK with you if it means you might be a little safer.

No, I'm not saying that at all. I'm not endorsing "anything goes" on interrogation techniques.

I'm just not necessarily opposed to something because some people would -- even with a semblance of reason -- call it "torture".

That is a subjective term. There are, of course, codified definitions of it to be found -- including in the GCs and US law. But, again, I think it's a situation where it's our own laws which will ultimately govern our standards.

And it seems to me that Congress should get more specific (even if clandestinely) about what is and is not allowed -- either in-sourced or outsourced.

The Detainee Treatment Act (which passed Congress with broad bipartisan support) tried to do this -- but did it poorly, IMO.

Now, if I think that Congress should explicitly define what is and isn't acceptable under US law, doesn't that sort of imply that I'm not supporting a limitless standard?

[Scott]

The common strain among most of the attacks since the Reagan era has been our stance vis a vis Israel. Not to mention our history of misadventure in the region -- you might remember some coups that we've backed, and some war in Iraq back in 1990-1991.

One might think. But, lest you forget, we were allied with the forebears of al-Qaida (including UBL himself) in Afghanistan against the Soviets in the 80s. This was after the Iranian revolution, after Beirut, after our meddling in the Iraq/Iran war, etc. And that suggests to me that realpolitik exists in that culture just as it exists in ours.

Keep in mind, I fully understand that the Islamists fear the spread of Western liberalism. In fact, it's among the predominant themes in Milestones and other seminal Islamist treatises. So I'm quite aware that their posture is more defensive in nature than offensive.

But, at the end of the day, I'm not sure it matters much. They still see Westernism as a creeping affront to God's demands -- and they're going to see it that way whether we're waterboarding people or not.

It seems to me that the only logical endpoint of any campaign to alter our behavior in a way that makes it congruent with their ideology is for us to repent of our lustful infidelity and accept Islam.

Since I don't think we're prepared to do that, I'm not sure why we should take even the first step down that road.

And this is why I say that the moral argument against what you're calling "torture" is a better one than the argument that such behavior on our part serves as fuel for their movement.

Because I very much agree that we could easily cross the lines of our own moral boundaries. And it's entirely possible that we have crossed them.

I'd just rather we had a more specific dialogue about where exactly those boundaries lay.

[Scott]

I just find it interesting that you apparently believe that, of all moral agents in the world, the United States alone can act with absolutely no countereffect -- any actions we see in opposition to us occur entirely in a vacuum, or because of the irrational motivations of others. Not because of anything we did, no sir.

Not in this case, I don't. Or, put another way, I don't think there's anything we could do or not do that would alleviate their grievance -- not anything, anyway, that we'd be prepared to do.

They don't envision a world where Westernism or any other liberal, pluralist culture can coexist with Islam. And don't take my word for that -- go right to the source.

I read all about Qutb in the same issue of Smithsonian that you did

That's not where I learned of him. I first learned of him in Lawrence Wright's book. And that's what led me to track down Qutb's ideas in his own words.

In any case, if I had seemingly never heard of Shah Mohammad Reza Pahlavi, I might not be so snotty to others about how well I understood our enemies and they didn't.

What makes you think I've never heard of him? Of course I've heard of him. I'm just not so sure I'd say that our support of him way back when really explains the impasse we've had with the Iranian theocrats.

That, too, was (and is) far more a clash of cultural visions than a particular clamor over one guy.

In any regard, I don't mean to be snotty. Really. But I do think that a sober understanding of the motivations driving the likes of Zawahiri puts to rest any hopes that we can just tweak certain unnecessary behaviors and establish some common vision of coexistence with him and his ilk.

What you were saying indicated to me that you think such a thing is possible. And it reminds of a saying Churchill used to have about hoping the alligator eats you last.

[russell]

doesn't that sort of imply that I'm not supporting a limitless standard?

Tell me where your line is:

beating
beating to the point of maiming
beating to death
inducing hypothermia
isolation or disorientation
isolation or disorientation to the point of inducing psychosis
isolation or disorientation to the point of inducing permanent psychological disability
strappado
threats or actual attacks by dogs
sleep deprivation
sleep deprivation to the point of inducing psychosis
stress positions
stress positions to the point of extreme pain
stress positions to the point of permanent joint or other physical damage

kidnapping to render to US justice when charges have been filed
kidnapping to render to US intelligence, to be held outside of US justice system
kidnapping to render to foreign intelligence, some chance of torture
kidnapping to render to foreign intelligence, high likelihood of torture

You seem to say your standard has a limit, tell me what it is. Tell me what, in your opinion, is a step too far.

[Phil]

What makes you think I've never heard of him? Of course I've heard of him. I'm just not so sure I'd say that our support of him way back when really explains the impasse we've had with the Iranian theocrats.

Which is, of course, entirely unrelated to the question you asked, which was "What did we to do provoke the storming of the embassy in Iran and the taking of hostages?" If you don't understand the relation between our helping to install -- and later, to protect and provide medical care for -- the Shah and the Iranian hostage crisis, you're in no position to be lecturing anyone.

But, at the end of the day, I'm not sure it matters much. They still see Westernism as a creeping affront to God's demands -- and they're going to see it that way whether we're waterboarding people or not.

How many jihadist terrorist attacks have there been on the Netherlands, by the way, so long as we're talking about bastions of Westernism? Sweden? Finland? France? Germany?

If the answer is "none," why do you suppose that is?

[Phil]

I should have added at the end of my previous post: Keeping in mind that the attacks in Madrid and London appear to have been directly related to their activities in and support of the Iraq war.

I do think that a sober understanding of the motivations driving the likes of Zawahiri puts to rest any hopes that we can just tweak certain unnecessary behaviors and establish some common vision of coexistence with him and his ilk.

I disagree, and think those "certain unnecessary behaviors" having nothing to do with Britney Spears and the NFL channel, and have a lot to do with foreign adventurism and militarism.

[psy]

"Hang on hilzoy, you're going to have plenty about which to post."

LMAO. Well the CIA nominee stating that renditions would continue and that he'd be seeking enhanced interrogation techniques didn't seem to rate a mention. Not even when it came within a week of her post about that.

Maybe the soicitor general nominee stating that the US can indefinitely detain terrorism suspects without trial will get across the line into mention-worthy territory. But who knows, it was reported by the LA Times. Perhaps they will be what's worthy of criticism again.

[Scott]

If you don't understand the relation between our helping to install -- and later, to protect and provide medical care for -- the Shah and the Iranian hostage crisis, you're in no position to be lecturing anyone.

But what was Khomeini & Co's primary gripe about the Shah, Phil? They felt that he was too culturally liberal and an affront to Islam.

They didn't hold hostages because we provided medical care for some Iranian. They stormed our embassy in the coup and held our hostages in the service of their faith.

[Scott]

How many jihadist terrorist attacks have there been on the Netherlands, by the way, so long as we're talking about bastions of Westernism? Sweden? Finland? France? Germany?
Well, there has been jihadist activity directed at both France and Germany. Heck, go read up on those Paris riots from a couple years ago.

But none of these places you mention are the heart of Westernism. America is the heart of Westernism. Would you try to kill somebody by shooting them in the elbow?

Why do you suppose that all of those countries have taken direct part in the war against the jihadists, considering their relative direct safety from the jihadists?

[russell]

But what was Khomeini & Co's primary gripe about the Shah, Phil? They felt that he was too culturally liberal and an affront to Islam.

Iranian resistance to the Shah was much wider than just the Islamists. Resentment against the US for their involvement with the Shah goes back at least to the coup that removed Mossadegh.

I'm also not sure your equation of Khomeini's political Islamism and current day jihadism really holds up.

Why do you suppose that all of those countries have taken direct part in the war against the jihadists, considering their relative direct safety from the jihadists?

I'm not sure if you're being sarcastic here or not. Militant Islamic violence is not uncommon in Europe. Not as dramatic as 9/11, usually, but more frequent than here.

[windy]

Well, there has been jihadist activity directed at both France and Germany. Heck, go read up on those Paris riots from a couple years ago.

Are you completely paranoid? Not everything involving violence and Muslims is automatically "jihadism". I fear that next you might be telling us about the Bosnian Jihad against the Serbs.

Why do you suppose that all of those countries [Sweden? Finland? France? Germany?] have taken direct part in the war against the jihadists

? They haven't.

[Gary Farber]

"You can choose to understand our enemies or not, it really doesn't matter to me. But, if you want to, it's a good place to look."

Some of us were well-read on Qutb in the late Eighties, or early Nineties, and some earlier, and some later.

You can choose to be a condescending [NOUN] and presume you're talking largely to people who haven't studied Islamic terrorism, and its historic roots, for many years, and that some of these people have been doing so for decades before 2001, or you can choose to not be a condescending, presumptuous [NOUN].

The latter generally goes over better, and helps win friends and influence people far more quickly, than the former.

Oh, and I can point you to a couple of hundred blog posts I wrote in 2002 on Islamic terrorism; you can start here, in January of 2002, and keep going; I first linked to bin Laden's various fatwas in December of 2001; when did you first start writing on blogs about Islamic terrorism?

[CharleyCarp]

They stormed our embassy in the coup and held our hostages in the service of their faith.

Our previous support for the SAVAK can't have had anything to do with it. Not our long history of meddling in their affairs.