Psyche, Science, and Society

Luban: Will Obama own Bush torture?

Law professor David Luban at Balkinization takes on the Obama administration for its preservation of the state secrets claim to cover over Bush torture-by-rendition:

You Cover It Up, You Own It

By David Luban

Many of us have been wondering which of the Bush Administration’s disgraceful litigation positions the Obama/Holder DOJ would abandon.  Yesterday’s Ninth Circuit hearing in Mohamed v. Jeppesen DataPlan was a newsworthy first start.  It’s up there with the maiden voyage of the Titanic and the flight of the Hindenburg.  The excellent Glen Greenwald summarizes the bad news here.  In brief, DOJ lawyer Douglas Letter astonished the judges on the panel by defending the outrageous Bush abuse of the “state secrets” privilege in a lawsuit by rendition victims against the CIA’s travel service that rendered them.  Letter informed the incredulous judges that the new administration had decided to maintain the old administration’s position.

The state secrets privilege is the so-called “nuclear option” in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets.  With no facts to back the claim, plaintiffs’ cases must be dismissed.

This one is particularly egregious, because most of the facts are well known and well documented through other sources.  One question is whether the state secrets doctrine concerns facts or documents.  That is:  does it mean that government documents cannot be entered into evidence because they are secret?  Or does it mean that the underlying facts are “state secrets” that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position — that the state secrets privilege is a rule about facts, not about evidence — is absurd, but it is the government’s position.  It’s absurd, of course, because there is no point in keeping secrets that aren’t secrets any longer.  As the ACLU’s Ben Wizner who argued against the government yesterday, said of another godawful state secrets case, “really the only place in the world where Khalid El-Masri’s case could not be discussed was in a federal courtroom.  Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen.”

That’s assuming the secret should rightfully be kept in the first place.  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.

The state secrets privilege, used to cover up wrongdoing rather than to protect legitimate national security secrets, is an all-out assault on public accountability and, ultimately, on democracy.  By now, it’s well-known that the state secrets privilege was born in original sin.  The 1953 case in which the Supreme Court established it, United States v. Reynolds, 345 U.S. 1 (1953), turned out, when documents were declassified nearly half a century later, to be a cover-up of gross negligence under a false assertion that the documents contained national security information.

Andrew Sullivan is right to observe here that “with each decision to cover for their predecessors, the Obamaites become retroactively complicit in [their deeds].”  Retroactive complicity is an important, and underexamined, moral category.  People cover up for others for many reasons, not all of them bad.  But the longer and more involved the cover-up becomes, the more deeply implicated you get — not only in the cover-up, but in the original misdeeds that you’re concealing as well.  Little by little, you come to own the deeds yourself.  Or they own you.  It’s time to throw away the Ring, Frodo, before it hooks you and enslaves you.

February 10th, 2009

Leahy talks to White House about Truth Commission

Last night, at his press conference, Sam Stein at Huffington Post asked President Obama about Sen. Leahy’s proposal for a torture Truth Commission. Obama said he wasn’t familiar with the plan, but did not sound enthusiastic about the idea. Today Stein  reports that Senator Leahey and White House Counsel Craig talked about Leahy’s proposal for a Truth Commission to investigate Bush administration torture:

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator’s proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

“I went over some of the parameters of it and they were well aware at the White House of what I’m talking about,” Leahy told the Huffington Post. “And we just agreed to talk further.”

Leahy was understnding of Obama’s focus on the economy, but said he wouldn’t let up:

Asked about the President’s response, Leahy said that he believed the White House was right to maintain its focus on economic matters at this moment. “But I do intend to follow up and talk with him about this,” he said. “I’m not wedded to any part of the plan so long as we get all the facts out. I would hate to see us take the attitude that that was then and this is now, let’s not worry about any of the mistakes or the abuse of the law and give it a pass … because it is my experience that you continue to make mistakes until somebody calls you on it.”

Sen. Leahy also sent a message that, one way or another, the truth will come out. He said that Congress will investigate if Obama doesn’t:

Congress will likely proceed with investigations regardless of whether Obama is on board.

“Oh yeah,” Leahy said when asked if he would go forward without Obama’s endorsement. “I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back.”

This path could create a curious situation for the Obama team, in which the president has committed his administration to prosecuting illegality and the Congress provides the evidence of such.

“What I would much rather see is to see us working together,” said Leahy. “We have a common interest, both the Congress and the administration to get this thing worked out … In this instance, this is so important that our common interest is to get the truth out.”

February 10th, 2009