Thomas R. Eddlem / The New American & Editorial / The New York Times – 2009-02-17 23:02:32
Americans Want Torture Inquiry, Obama Doesn’t
Thomas R. Eddlem / The New American
(February 13, 2009) —
A Gallup Poll released February 12 revealed that 62 percent of Americans want to investigate or criminally prosecute Bush administration officials who authorized torture in the so-called “war on terror.” But even though President Obama has said numerous times that “nobody’s above the law,” on February 10 he used the Bush administration’s “state secrets” gambit to quash a lawsuit attempting to penalize some of those involved in renditioning torture subjects.
That lawsuit sought damages against a private airline used by the CIA to rendition low-value suspects for torture by dictatorial regimes abroad. One of the five plaintiffs, Benyam Muhammed (a British and Ethiopian citizen), alleged he was renditioned to Morocco where torturers made razor cuts on his penis. The lawsuit alleges that San Jose-based Jeppesen DataPlan Inc. should have known that its planes were being used to ferry suspects for torture and is therefore liable for damages.
But because the Obama administration invoked the “state secrets” policy at the Ninth U.S. Circuit Court of Appeals in San Francisco, the lawsuit’s likelihood of revealing felony torture on the part of Bush officials is now remote.
“This is not change,” ACLU Executive Director Anthony Romero correctly told the Associated Press. “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.”
The Obama policy in San Francisco also drew a rare condemnation of a Democrat from the New York Times editorial page. [See below.]
The Gallup Poll came just two weeks after it was revealed that the Obama administration’s Justice Department has dispatched several government lawyers to defend Bush-era Justice Department official John Yoo from a lawsuit by torture victim Jose Padilla.
Jordan Paust of the University of Houston Law Center calls giving Justice Department lawyers to alleged international war criminals “an outrage and constitute an embarrassing embrace of international criminal conduct that the international community has demanded must result in absolutely no form of impunity.” Paust says that alleged criminals should bear the costs of their own defense, and notes there is a long historical case for this. At “a 1781 Resolution of the Continental Congress, the Founders expected that ‘the author of … injuries [that are “offenses against the law of nations”] should compensate the damage out of his private fortune.’”
President Obama’s actions are fast diverging from his public rhetoric.
Continuity of the Wrong Kind
Editorial / The New York Times>/a>
(February 11, 2009) — The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.
On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.
Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.
Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.
The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs.
The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
President Obama has taken some important steps to repair Mr. Bush’s damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.
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