Barack Obama’s legal team has just committed its first great sin. Throughout Obama’s enthusiastic, energetic and “hope” ridden campaign, we were told that things would be different. There would be “change,” and by that Obama assured the American public, with deliberate, well thought out oratory fitting of Moses himself (to say nothing of the late Dr. King), that Obama would abandon the shameful approach George W. Bush adopted to fight terror. Obama’s presidency, or so it was claimed, would be the embodiment of change.
We now know that to be a deceit of the first order. And just how do we know? Consider the case of Binyam Mohamed, an Ethiopian native that was subject to the Bush administration’s extraordinary rendition program. Under that program, suspected terrorists were (are?) whisked away to exotic locales, not for a sybaritic, martini-soaked holiday, mind you, but to be tortured for information. Over a period of two years Mr. Mohamed was beaten to a pulp, cut with small scalpel and then burned with hot liquid, and threatened with rape and death. If this story sounds eerily familiar, it should, as Mr. Mohamed, a British resident, may have been transferred to Pakistan, Morocco and Kabul for his vacances de torture with the full knowledge of the British government. Even more shocking is the fact that the Bush administration threatened to withdraw national security cooperation with the UK if the dark details of Mohamed’s torture were ever made public.
Mohamed and four other detainees have filed suit in the United States against a subsidiary of Boeing (Jeppesen DataPlan) for arranging flights for the Bush administration’s rendition program. In other words, Boeing should be liable for facilitating their torture. Pretty simple legal claim, right? Guess again. The Bush administration insisted that this case cannot be heard because doing so would threaten national security and relations with other countries. And now, Douglas N. Letter, an Obama lawyer, made the exact same argument before the United States Court of Appeals for the Ninth Circuit on February 9, 2009. Clearly surprised by the consistency in approach between the Bush and Obama legal teams in this connection, Judge Mary M. Schroeder asked Mr. Letter whether Mr. Obama’s ascendancy to the highest office in the land changes anything. An unqualified ‘no’ was the response she received, which is quite frankly sickening given the constant pimping of the word “change” during President Obama’s campaign.
Legally, the Bush . . . oops, I mean Obama . . . administration is claiming that the subject matter of Mohamed’s case is subject to the states secret doctrine (SSD), which allows a court, on the request of the government, to exclude certain evidence from consideration if it contains sensitive information that could imperil national security. Where the SSD is held applicable by a court, evidence is completely removed from the litigation, as if it never existed. And make no mistake, the Obama legal team is taking aim at the very heart of Mohamed’s legal claim. According to Mr. Letter, the “very subject” of the case, i.e., the claim that a private company helped the United States government implement its extraordinary rendition program, is subject to the SSD. Naturally, any evidence related to that claim would be subject to the SSD.
Think about what is happening here, stripped of all the smoke and mirrors and legal mumbo jumbo. There is an allegation that a private company helped the U.S. government send a guy to another country to be tortured in the most twisted ways imaginable. That fellow has sued the private company, but the government does not want the details of its arrangement with that company made public. To prevent the disclosure of that information, the government tells an appeals court that the case cannot be heard because doing so could put the “national security” of the United States at risk.
Some say that the Obama administration has not necessarily lost its moral compass here. (Note that it is unclear how much President Obama personally knows about Mr. Mohamed’s torture.) The idea, as articulated by a frighteningly smart colleague of mine, is that it may be wise to adopt the Bush administration’s approach to rendition cases because unearthing additional details of the extraordinary rendition program – especially the authority structures and administrative aspects of the program – would subject the United States government to unprecedented degree of embarrassment without bringing about a meaningful resolution. In fact, additional transparency could embolden America’s enemies by providing a new avenue with which to indict the American system, what we might call the ever-damning “even America admits that it cannot live up to its ideals” shtick. Moreover, while asserting the SSD may seem (or actually be) immoral, the decision to do so is guided by a genuine concern for the reputation and standing of the United States.
I am tempted to respond by saying that nothing could be more embarrassing to the United States than to continue with the Bush administration’s shocking disregard for the rule of law. I say “tempted” because that rather simple response ignores the fact that the Mohamed case raises the spectre of decreased cooperation by private industry with the U.S. government. If a private company can expect to face legal liability for complying with a request made by the U.S. government to fight terrorism, the government’s credibility takes a significant hit. Were Mohamed successful in suing Jeppesen DataPlan, what possible leverage would the U.S. government have in the future to cajole private companies into doing its morally questionable bidding, even in the hallowed name of national security? Notwithstanding this consideration, the standing of the United States in the eyes of the world depends, to a large degree, on how well we live up to our own moral and political ideals. When we abandon who we are, our legitimacy wanes. So if Obama is truly interested in protecting our standing and legitimacy in the eyes of the global community, he has to be willing to shine a little more light on the Bush administration’s misdeeds. As Clive Smith so aptly puts this point, to allow the states secret doctrine to annihilate Mr. Mohamed’s case against Boeing is to confuse national security with national embarrassment.
The states secrets doctrine is far from obsolete. There certainly are situations in which this evidence doctrine does help preserve national security by keeping intelligence gathering techniques and counterintelligence resources under wraps. Indeed, our country still faces a shrewd, committed foe. But not all threats come from without, and today it would seem wise to focus our attention on the enemy within.