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The Torture Cover-Up Continues

No change? On something this important? How is this possible?

John Schwartz writes in the New York Times: "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 Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday."

Maura Dolan and Carol J. Williams write in the Los Angeles Times that Letter "told the U.S. 9th Circuit Court of Appeals that the Obama administration was taking 'exactly' the same position as the previous White House in calling for dismissal of a lawsuit by five terrorism suspects snatched by U.S. agents in foreign countries and delivered to secret detention sites in other countries....

"The case was 'thoroughly vetted with the appropriate officials of the new administration,' said Letter, who represented the Bush administration's opposition to the lawsuit as well....

"At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government's lawyer that he was not convincing.

"'So any time the executive branch of the government says the fact is classified, it means it cannot be examined?' Hawkins asked Letter.

"Letter, noting that national security was at stake, told the court it should 'not play with fire' by permitting the suit to go forward.

"'Nor should the government in asserting [secrecy] privilege,' Hawkins shot back."

Dolan and Williams add: "At the same time, Justice Department officials in Washington pledged to review all cases in which the Bush administration invoked the right to protect state secrets and pledged to ask for secrecy 'only in legally appropriate situations.'"

Here's the response from Anthony D. Romero, executive director of the American Civil Liberties Union: "This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

Glenn Greenwald blogs for Salon that the administration had "resoundingly and disgracefully" failed "the first real test of the authenticity of Obama's commitment to reverse the abuses of executive power over the last eight years."

David Luban blogs for Balkinization: "Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing."

Andrew Sullivan blogs for Atlantic: "This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.

"So what are they hiding from us? Wouldn't you like to know?"

By Dan Froomkin  |  February 10, 2009; 12:14 PM ET
Categories:  Looking Backward , Torture , Transparency  
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Next: A More Visceral Appeal


Change We Can Believe In, indeed.

We told you - Greenwald, Sullivan, Froomkin, all of you - that you couldn't believe anything that Obama said. He had no record to run on, other than voting "present." But you were so busy hating Bush and chanting "yes we can!" that you wouldn't listen.

Well, in a democracy you get the leaders you deserve. And because you refused to take a hard look and see Obama for who he was, you got exactly what you deserved: a president who does what's expedient rather than what's right.

I'd laugh, but you're all just so sad. Grown men putting their hopes in this clown. Pathetic.

Posted by: wapo9 | February 10, 2009 12:57 PM | Report abuse

Change we can believe in? The Obama response to the release of information regarding the torture of human beings by the Bushies is the same as the Bush response.

It brings to mind a popular poster from the days of hippiedom: Tricky Dick Nixon sitting on the pot with the notation "S.O.S."

It is going to be a long four years.

Posted by: frazeysburger | February 10, 2009 1:03 PM | Report abuse

Anyone ever bother to think that our new Boy King took the same postion because ... are you sitting down ... it worked!

Gasp! Say it aint so BHO!

Posted by: SharpshootingPugilist | February 10, 2009 1:05 PM | Report abuse

This is truly disappointing. But does wapo9 believe a Republican administration would decide differently? I seriously doubt it.

Posted by: jesnapp | February 10, 2009 1:06 PM | Report abuse

Dan, you and other bloggers need to keep the torture issue front and center until the truth is unearthed.

Posted by: JCinCT | February 10, 2009 1:09 PM | Report abuse

How much stronger if a decision of the court is not made with the overt connivance of the parties.

The assumption of the ACLU director is that it is all coverup. And in many cases it is, but the difficulty is in separating the legitimate use from the illegitimate. Just because there was torture does not mean there are not protectible secrets, likewise protectible secrets do not mean there was torture.

My hope is that this court will begin to put forward a process to determine which and what.

Posted by: Pogoagain | February 10, 2009 1:10 PM | Report abuse

Three weeks into his administration and Obama is already a failure? Say it isn't so. He still has 205 weeks left. There are definitely some wild and unrealistic expectations among those who comment. I have taken over dysfunctional offices before and had to make quick decisions. They were not always the right ones. Sometimes it took months before those decisions were proven correct or incorrect. The decision on handling detainees and Guantanamo is very complex and made more difficult by the fact that it is not the absolute priority of the administration. We need to give this new administration time to shake the cobwebs out. Let us all still keep vigilant but I am keeping my expectations on an even keel. This is the federal government we are talking about.

Posted by: mraymond10 | February 10, 2009 1:26 PM | Report abuse


I cannot give you any assurances, but I do know that McCain was at least as much anti-torture as Obama. I tend to believe that McCain would have followed through, though, for two main reasons:

(1) He's actually been tortured, so he knows how terrible it is, and
(2) He's not a 6'2" pile of talking bullcrap, like Obama.

Posted by: wapo9 | February 10, 2009 1:38 PM | Report abuse

Did Darth Cheney's ominous warning that any terrorism attack that happens now will be solely Obama's fault have the desired effect? In other words, is this reversal designed to appease the Busheviks who still roam free, pending war crimes charges?

Posted by: TruthTeller41 | February 10, 2009 1:39 PM | Report abuse

Dan, what happened to the original blog format which really covered the ground? This new one is just snippets of stuff. Did you get tired of doing your homework? It is very disappointing.

Posted by: rufinus | February 10, 2009 1:48 PM | Report abuse

Looks like Obama has decided to become an accomplice to war crimes. Interesting. I predict one more open town hall before he shuts it down and allows only ardent deciples to ask 'questions' of him. This is truly a disaster for this nation. Looks like our morals will be circling the drain along with our economy. Sickening.

Posted by: davidbn27 | February 10, 2009 1:48 PM | Report abuse

Unfortunately the majority of Americans do not seem to particularly care about civil liberties, evident in the pervasive apathy about numerous abuses and violations of international law during the Bush-Cheney regime. Some constitutional scholars and many progressives have said the ways in which the Bush administration trampled upon civil liberties and the Constitution are grounds for serious investigations into violations of the Constitution, as well as possible war crimes according to international law. Many people thought Bush and Cheney should have been subject to impeachment proceedings. However, most Democrats in Congress seemed more concerned about maximizing their political power than investigating possible serious abuses of power.

President Obama has been highly ambiguous in his public comments as to whether his "justice" department will pursue any prosecutions of previous administration officials. The President says no person is above the law, however, if his administration fails to bring charges against any Bush administration officials, probably not wanting to stir up partisan politics, his words will be undermined by his actions.

The people in this country are still waiting to see what Barack Obama meant when he promised change in this country. As some reporters wrote during the campaign, there would probably be more continuity than change in an Obama administration's substantive foreign policies.

Posted by: Aprogressiveindependent | February 10, 2009 1:51 PM | Report abuse

The first instinct of a supporter is to say that this was not yet scrutinized by the Holder Justice Dept. The wailing of those defending this act and criticizing Obama would have come regardless of what he did. If the argument gets tossed, as I suspect the 9th Circuit will do, there will be another chance for Obama to reverse this abomination by either refusing to pursue the argument to the Supreme Court, or affirmatively stating that its argument was wrongheaded and a mistake. But spare me the " I told you sos" from the Bush blowhards. Your man was a disgrace politically, fiscally and morally--you say we get what we deserve; what did we EVER do to deserve someone so ill equipped to lead and so incompetent at governing? No one deserved the guy who was 43rd in history and 43rd in quality.

Posted by: bklyndan22 | February 10, 2009 2:02 PM | Report abuse

We can only hope that the 9th Circuit has more integrity than the Obama justice department. If the court rules in favor of the ACLU will Obama dare appeal it to the Supreme Court? The real Obama is wasting no time showing his true colors. What a disappointment. Hey a new title. President Disappointment.

Posted by: hossplay3 | February 10, 2009 2:16 PM | Report abuse

it's even worse. I just read that President Disappointment is proposing to continue using Military Commissions to prosecute suspected terrorists.

Posted by: hossplay3 | February 10, 2009 2:26 PM | Report abuse

Perhaps, the Obama administration is advocating the Bush administration stance in order to push the case to the Supreme Court for a presumably definative answer? Otherwise had the adminsitration changed stance 100% the next adminsitration could reverse again. A supreme court decision can't be flipped back and forth as policy. Short term loss for long term gain? Surely this will be appealed upwards.

Posted by: m_mcmahon | February 10, 2009 2:32 PM | Report abuse

The reason more Americans aren't up in arms about this is that they don't make the connection between such egregious acts and their personal lives. Erosions of civil liberties - and this erodes civil liberties just as much as does denying habeous or engaging in warrantless wiretapping - are slow processes, and not usually targetted at the individual. In contrast, the economic crisis, while a systemic problem, affects people as individuals. Thus they take an interest in it, and call their Senators to do something.

Sickeningly, the MSM knows full well about this disconnect, and neither points it out, nor does anything to correct it. Imagine the impact of Charles Gibson, over at ABC, making this the first story he reports tonight, and reading copy talking about what this really means to American citizens - the phone line to Capitol Hill would be full before he was done.

Posted by: kcsphil | February 10, 2009 2:36 PM | Report abuse

Maybe the Obama administration would prefer that they get a chance to investigate any improprieties themselves as part of a (hopefully) comprehensive review of all of the previous administration's questionable policies before they get cherry-picked in a civil lawsuit?

Posted by: Gallenod | February 10, 2009 2:54 PM | Report abuse

Sheesh, some of you are really jumping to conclusions here with virtually zero facts. And even if this one decision is a bad one, it hardly constitutes a trend. It may be that our government is actually protecting another cooperative government in this case, and wants to foster that cooperation.The UK did exactly that recently for our country. Then again maybe our new administration is just as evil as our old administration. Only time will tell. But, this one incident reveals very little. Except maybe to those who have been waiting anxiously for the opportunity to wag their fingers at the Democrats and SCREAM "I told you so!!" How sad. Wouldn't it have been great if could have kept Bush and Cheny for at least another eight years.

Posted by: kgeakin | February 10, 2009 3:04 PM | Report abuse

The Obama administration signified its support for torturing human beings before this latest court case. An appeals court in the United Kingdom quashed the release of the U.S. torture of a Guantanamo prisoner because the Bush administration threatened to withhold intelligence information if the facts were made public. The Obama administration would not change course. Both Attorney General Holder and Leon Panetta have said that there will not be prosecutions for torture.

In the same vein both Hillary Clinton and Joe Biden have been doing a lot of saber rattling toward Iran in the last week. And still no talk about the war crimes in Gaza.

I am not a Republican. As a matter of fact I have been a died in the wool Labor Democrat until the past couple of years. I became thoroughly disillusioned with the do-nothing Democrats after the 2006 elections.

Yes, folks, it is S.O.S.

Posted by: frazeysburger | February 10, 2009 4:09 PM | Report abuse

As an Obama supporter, I have to say that I am very disappointed by this development. I hope that, upon further review by the AG and Justice Department, this decision will be overturned. Meanwhile, I certainly hope the press will hold both Obama's and Gibbs' feet to the fire on this one, until we get some sort of answer on the reasoning behind what looks like a very bad decision.

Posted by: dfritzin | February 10, 2009 4:16 PM | Report abuse

wapo9 wrote at: February 10, 2009 1:38 PM
"I cannot give you any assurances, but I do know that McCain was at least as much anti-torture as Obama. I tend to believe that McCain would have followed through, though, for two main reasons:

(1) He's actually been tortured, so he knows how terrible it is, and
(2) He's not a 6'2" pile of talking bullcrap, like Obama.

Actually wapo9, McCain already DID NOT FOLLOW THROUGH.

Read "Angler" by Barton Gellman and you'll see that David Addington changed the language in a signing statement in such a manner that NOTHING CHANGED after the Senate voted to oppose torture.

Addington's language permitted Bush, "the unitary executive" to use Addington's phrase, to continue with water boarding, et al, at his own discretion, and McCain literally turned his back and didn't follow up.

Cheney and Addington, neither of whom served in the miltary (although Addington dropped out of the Naval Academy his first year), sneered at McCain's concern for Common Article 3 of the Geneva Convention.

I, too, want Obama to end the past practices as it has been proven for centuries that torture does not produce reliable intelligence.

I understood this was as an argument on the narrow issue of "state secrets", but I'll read the transcript tonight.

Posted by: boscobobb | February 10, 2009 4:27 PM | Report abuse

To say I am disappointed would be an understatement, but Barack Obama is not George W. Bush. I continue to support the President. However, we can not let him off the hook. Call, email and write the White House and the Justice Department. This is wrong and cannot stand.

Posted by: JTuckerNYC | February 10, 2009 4:28 PM | Report abuse

wapo9, would mcain have done more?
maybe he is treading crefully so as not to fall into a trap being laid by treasonous republicans who would love to see another successful attack on our country to save their pathetic excuse for a political party.

Posted by: boricuaogun | February 10, 2009 4:32 PM | Report abuse

mcain is not 6"2" of talking bullcrap, he's 5'2" of talking bullcrap.

Posted by: boricuaogun | February 10, 2009 4:36 PM | Report abuse

Wapo9 wrote:
Change We Can Believe In, indeed.

We told you - Greenwald, Sullivan, Froomkin, all of you - that you couldn't believe anything that Obama said. He had no record to run on, other than voting "present." But you were so busy hating Bush and chanting "yes we can!" that you wouldn't listen.

Well, in a democracy you get the leaders you deserve. And because you refused to take a hard look and see Obama for who he was, you got exactly what you deserved: a president who does what's expedient rather than what's right.

I'd laugh, but you're all just so sad. Grown men putting their hopes in this clown. Pathetic.

Posted by: wapo9 | February 10, 2009 12:57 PM

Oh please. Believe me, I'm plenty pi$$ed at the admin for this, however don't you get on here, and act like you give a rat's a$$. Like your boy McInane would have done any differently.

Posted by: CharlesWGray | February 10, 2009 5:14 PM | Report abuse

If an individual is abused by the federal government it is exceptionally difficult for them to right the wrong.

It is important for society to ensure that wrongs are righted because decency and fairness are always under threat.

If Obama does not assist the plaintiffs by allowing them to seek justice then how and why is he better than Bus?

Bush and Cheney and their legion of followers believed that their beliefs were right and unchallengeable. They found thousands who followed them. Their legacy is that they have allowed brutal elements in society to gain a stronhold.

Society is uncivilised when those in control abuse individuals and ensure that there are no efficient processes to right the wrongs.

Obama should bring about change rather than enforcing cruelty.

Posted by: robertjames1 | February 10, 2009 7:49 PM | Report abuse

People who want to know more about this case, it is also being carried on in Britain, so the Guardian has pieces on it daily right now. In addition, Andy Worthington did a piece on it, where he details what is going on and where the plaintiffs came from.

The case is related to the Jose Padilla case and to the torture of Abu Zubaydah, during the time when John Yoo was writing the torture memoes and John Bolton was withdrawing the U.S. signature from the Rome Statute (backing out of the International Criminal Court). If the Obama administration keeps it up, since another government is already on the ropes in this one, there are going to be international repercussions.

If they think they can use state secrets to prevent the inevitable torture investigation they are so worried will interrupt what they want to accomplish, this is exactly the behavior that sunk LBJ. Trying to smash an international problem badly to get time to work on a domestic agenda.

I disagree, wapo9. John McCain participated in the Military Commissions Act which retroactively immunized Bush administration officials from prosecution for torture, and refused to back restrictions on the CIA. He is unreliable on torture, regardless of his experiences.

Posted by: ondelette | February 10, 2009 8:01 PM | Report abuse

Maybe I'm Googling the wrong thing, but it appears that the corporate media -- except for its bloggers -- is staying away in droves from this story.

Dan, you and Greenwald and Andrew ... we're depending on you to keep it alive until Obama gets the message (yes, I've sent e-mails to all the "interested" parties).

Posted by: whenpigsfly | February 10, 2009 8:29 PM | Report abuse


Dan, what happened to the original blog format which really covered the ground? This new one is just snippets of stuff. Did you get tired of doing your homework? It is very disappointing.

Posted by: rufinus | February 10, 2009 1:48 PM "

Dan I agree with rufinus here. What I think rufius doesnt know and probably many of your shrinking number of readers is that you have to open each section of your blog seperately if you want to see the comments too. Please go back to the old format. The comments are interesting too and soon your advertisers will realize that the post is padding the number of downloads in this fashion. You will end up losing readers and advertisers if you dont listen to your readers and quit being like Bush................You dont want to be like him, do you??

Posted by: waawaazaire | February 10, 2009 9:44 PM | Report abuse

The previous administration placed us in a difficult position internationally speaking with its, well what to call them but what they were: its war crimes. So if this case moves forward, a) European prosecutors will place further indictments and b) all of Bush's little rendition buddies will get outed. Which pretty much blows away whatever else you had in mind for international relations this year.

If you ask me, this one is coming straight from Hillary.

Posted by: fzdybel | February 10, 2009 10:20 PM | Report abuse

Meet the new boss.

Same as the old boss.

Posted by: solsticebelle | February 10, 2009 10:31 PM | Report abuse

There are several troubling elements about this story.

1) There is scant coverage of this in the MSM, and where there is a story, there is little background and discussion of the state secrets privilege as a legal doctrine.

2) There are clueless bloggers out there like Marc Ambinder who are nothing but Administration mouthpieces who are saying the Administration hasn't really had the time to review this case, and the invocation of state secrets is merely a "holding pattern" until they can review the case.

3) This is a horror story and the despicable actions taken by our Government against these innocent men is not being told. Most stories merely mention the case and the result -- not the underlying grievance.

4) The hypocrisy of the Obama Administration is striking because they are essentially defending something they criticized for years; namely, the abuse of the state secrets privilege to dismiss cases entirely instead of being used to object to certain documents within a larger case.

5) Finally, and perhaps the most glaring fault of the fledgling Obama Administration is their use of the state secrets privilege to try and toss this case out of the court is actually a defense of extraordinary rendition -- something outlawed under an Executive Order signed in his second day of office.

Posted by: winoohno | February 11, 2009 4:38 PM | Report abuse

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