Obama Administration & State Secrets Doctrine

Big disappointment on Monday when a Justice Department lawyer, in arguing to dismiss a case against the government for torture, re-asserted a "state secrets" theory developed by the Bush Administration on the grounds that even discussing it in court could threaten national security.

Or is it? On balance I'm not so sure.

It is tempting on first impression to share the outrage of the ACLU Executive Director Anthony Romero, who commented: "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."

In any event, what gives? After all, some of Obama's harshest criticisms of the Bush Administration were reserved for this sort of issue. Even the judges on the Ninth Circuit Court of Appeals were surprised.

"The change in administration has no bearing [on your argument]?," asked Judge Mary M. Shroeder.

"No, your honor," replied the lawyer, Douglas N. Letter. "[The argument was] thoroughly vetted with the appropriate officials within the new administration," he said, and "these are the authorized positions."

So why the shift? It is certainly understandable, as a Justice Department spokesman explained in justifying the government's position, that the government would want to keep information "that, if released, could jeopardize national security." The ACLU counters, though, that it IS possible to bring cases without facts being made public - courts should have a chance to decide what should be allowed to be discussed, based on classified information revealed to the judge(s) alone.

But the Justice Department lawyer, Mr. Letter, says that this is exactly what happened in this particular case. In urging the Ninth Circuit judges to review the same materials that led the Federal District Court (Judge Ware) to dismiss the case, Letter predicted, "you will understand precisely, as Judge Ware did, why this can't be litigated."

Talk about intrigue - it's hard to imagine what could be of such magnitude that would lead Barack Obama to do an about-face on such an important principle. It has to be the sort of thing that the Supreme Court envisioned in the Pentagon Papers Case when reviewing what it calls "prior restraints" on speech, commenting that the only time this most highly disfavored form of government restriction would be allowed is if the speech were the equivalent of threatening the lives of troops by publishing "the sailing dates of transports or the number and location of troops."

All I can imagine is that the case at issue here is of that sort - and for the moment anyway, I want to have enough faith in Barack Obama to believe that he would only take this position if it were absolutely necessary. At the same time, I do maintain that the Justice Department should NOT rely on this blanket "state secrets" doctrine, which can be so egregiously abused in the wrong hands. Rather, the government should argue for the necessity of confidentiality on a case-by-case basis.

What to Do About Bush/Cheney Abuses of Constitution

In the run-up over the last weeks to the presidential transition, there has been a lot of talk about what to do about the Bush/Cheney administration's eight-year assault on the Constitution. (See, for example, Harvard law professor and former Reagan appointee (solicitor general) Charles Fried, Slate senior editor Dahlia Lithwick, Yale law professor Jack Balkin, Nobel Prize winning economist and New York Times columnist Paul Krugman, among others.)

Some say those who were responsible at the highest levels for authorizing such abuses as torture, incarceration for years without access to lawyers or legal process, warrantless wiretap programs, allowing the Justice Department to become a partisan vehicle for rewarding the administration's supporters and punishing its critics - to name just a few - should be criminally prosecuted. On the other extreme, some say what's done is done, and we need to look forward, so we should do nothing.

Probably the best approach, however, everything considered, is the middle ground: holding a full set of hearings so that we will finally be able to know the full extent of the various abuses and egregious excesses (given his advocacy for the technique in getting people to spill, maybe Dick Cheney should be waterboarded if he continues to resist providing information - what's good for the goose is good for ....); but not going for criminal prosecutions, with all of the delays and legal maneuverings that would entail.

Yes, we want to hold the perpetrators accountable, but the most important thing is to expose all of what went on so that it can be held up to the light of national and international condemnation. Criminal prosecutions would hinder that goal, and could turn into a frustrating legal circus. By contrast, a sort of American version of a Truth and Reconciliation Commission would more easily allow the evidence to come forth since it would not be subject the rigorous procedural and evidentiary requirements of a criminal trial.

In this way these people may be fairly judged - and likely condemned - by the court of history, with their names living on in infamy for betraying the high principles of fairness and justice for which America and its constitutional form of government stands.

Good Riddance Dick Cheney

It's probably no surprise Dick Cheney is still defending waterboarding as legitimate. Of one thing we have become certain - Cheney is a dangerous man. Only 10 more days, then to the scrapheap of history.

In the recent presidential election, thankfully John McCain and Barack Obama were in full agreement on at least one thing: America does not torture. Decent Americans - Republican and Democratic alike - all agree on this point. And make no mistake: waterboarding IS torture, despite Cheney's, Bush's and John Yoo's (author of the infamous DOJ torture memo) lame protestations to the contrary. If it walks like a duck & quacks like a duck....

Cheney's ends-justify-any-means brand of neoconservatism is scarily reminiscent of that of the Nazi political theorist Carl Schmitt, whose theories on broad executive power paved the way for the fascist Adolf Hitler to lead a civilized, highly-cultured nation into committing the most egregious human rights violations in human history. In interpreting the Weimar Constitution, Schmitt argued that the president's power to declare a state of emergency granted him broad, virtually-dictatorial authority. Schmitt justified this expansive executive power as much more efficient and effective than resorting to the comparatively slow processes of legislation. Sound familiar?

Good riddance to Dick Cheney.

George W. Bush Protects Torture Technique

Last week an advisor to Barack Obama resigned because she referred to Hillary Clinton as a "monster" during an interview with a Scottish publication.

One should pause, and hesitate again, before damning another human being with such an incendiary term, defined by Webster's Unabridged as "a person who excites horror by wickedness, cruelty, etc." Obama's advisor was correct to resign - Hillary Clinton has done nothing to deserve such a label.

George W. Bush, on the other hand, comes close to deserving the label after his veto yesterday of a bill that would have banned the torture technique of "waterboarding" and other techniques not allowed in the Army field manual on interrogation (which prohibits physical force against prisoners). To use the massive power of the office of the President of the United States to advocate (over the objection of the democratically-elected legislature, no less) what is widely regarded as cruel, inhumane and beyond the bounds of decency is, by definition, nothing short of monstrous.

Understand that most experts - including the military and law enforcement agencies like the FBI - believe the technique is unnecessary and even counterproductive. Bush's own commander in Iraq, Gen. David H. Patraeus, has argued that the use of such techniques creates risks for any future American prisoners of war.

So why does he persist? In a word - Power. Power of the presidency vis-a-vis Congress and anybody else who crosses his sanctimonious good vs. evil worldview.

And the all-too-shameful fact is the veto will not be overridden. (The bill passed 221-199 in the House and 51-45 in the Senate, short of the two-thirds needed to override the veto.) It is most unfortunate that there are enough in Congress - mostly Republicans, it happens - who lack the spine and courage to stand up against Bush's fearmongering. Who are these people? Have they no shame?

This is why people around the world justifiably hate George W. Bush's America.

Dream - This is George W. Bush's America

So I had this dream last night.

I was at some big out-of-town public event - maybe a concert, maybe an evening art fair; something pretty crowded, with lots of inadvertent jostling, bumping up against people, etc.

The next day as I'm leaving my hotel room I'm approached by a group of 10-12 guys in full military dress (vaguely Latin American, maybe some Central or South American country) with lots of medals hanging from their chests. One guy says, "Were you at this event last night?"

"Yes," I reply.

"Did you know that there was an attack on our soldiers?" he asks. I tell him no, I didn't, and he continues, "Well we think you do."

"No, I really don't," I reassure him, but he doesn't believe me, repeatedly demanding, "What do you know? What do you know?"

"I promise you, I don't know anything," I say more urgently, trying to convey that I truly do not know anything.

"Well we're just going to ask you some questions," he says as his colleagues close around me and start tying me to a chair. I think to myself, "Well I'll be okay - after all I'm an American, and since we treat people with basic decency they have to treat me okay as well."

But as the ropes tighten I remember torture memos, waterboarding, and those awful stories of people (sometimes completely innocent - guilty only of being in the wrong place at the wrong time) kept for years and yes, tortured, by anyone else’s definition, in Guantanamo Bay and secret CIA interrogation camps, and I think to myself, "Oh s**t, my life is over….”

And then I wake up.

If only this were just a dream.