The Trust-Us Strategy

This move on state secrets fits a familiar pattern of the executive branch trying to pre-empt the legislative branch by promising to do something internally instead of having to be forced into it by statute. It's not a durable solution and should have no bearing on future legislation, but inevitably it does.

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

The problem is that the people deciding whether "significant harm to national defense or foreign relations is at stake" remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it's not that I don't trust Eric Holder or the review committee tasked with making this determination, I don't trust who comes after him. Case in point - Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

It's not enough for the executive branch to police itself. Congress should act.

...More from bmaz and Adam Serwer. In fact, Holder promised a review of the state secrets privilege back in February, meaning that he's already been undergoing the process that they're announcing today, and yet the DoJ has invoked state secrets in often-unacceptable ways on many occasions since then.

...Basically, nobody's buying this nonsense. Hopefully, Nadler, Leahy and Feingold (all quoted at the link) will continue to move forward with their bill to rein in this hideous practice.

Disappointment On Civil Liberties

I think I was too soon in my tempered praise for Obama's decision on Bagram Air Force Base. Yes, prisoners there will have an opportunity to challenge their detention, but basically using the same process found unconstitutional when tried at Guantanamo. This still denies prisoners basic habeas rights in a court of law and allows the government to abduct anyone and send them to Bagram indefinitely, where they cannot challenge their detention properly. In fact, since the action was in response to a court order to allow non-Afghan prisoners a right to plead their case, the detainees will probably have no opportunity to act on this until years of litigation over whether this system can pass Constitutional muster. As one of the representatives for Gitmo detainees said yesterday, "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."

Boy, how many times have we heard that? In addition to turning Bagram into Guantanamo East and seemingly stocking prisoners there outside any review process, this Administration wants to create a legal process for preventive detention, enabling them to hold anyone without charges indefinitely, which Russ Feingold has called "a hallmark of abusive systems that we have historically criticized around the world." Obama's CIA continue to use the state secrets privilege to get out of a host of different accountability measures. And just yesterday, the Administration announced that they support renewing all sections of the Patriot Act.

The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.

In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.

But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Well, that's nice, they're "willing to consider" privacy safeguards. It's not like we've had multiple reports of the FBI violating privacy through unauthorized national security letters or wiretaps that capture the information of individual Americans. With Russ Feingold and Dick Durbin working on a bill including these safeguards, some advocacy groups are optimistic, but given the Administration record on civil liberties to this point, I'm not sure why.

The President, a Constitutional scholar, is doing what executives in the executive branch typically do - aggrandize their power in the manner of the previous occupant of the office. The courts and Congress need to do what's necessary to stop them. But when the previous President so flagrantly abused the privacy protections and civil rights of American citizens and violated the country's laws, you'd think that the new man on campus would trim his sails a little bit.

But The CIA Never Lies

A federal judge basically excoriated the CIA yesterday, finding it guilty of deception in the least surprising ruling ever. Spies deceive?

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Chief Judge Royce C. Lamberth wrote that he was considering sanctions against five current and former agency lawyers and officials, including former director George J. Tenet, for withholding key information about the operative's covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history." Brought in 1994 by DEA agent Richard A. Horn, the suit alleged that the CIA illegally bugged his residence in Rangoon, Burma, while he was serving in the country [...]

In an order issued Monday, Lamberth ordered Yeates, Brown, Tenet and three current or former CIA lawyers -- John Rizzo, Robert J. Eatinger and A. John Radsan -- to file court documents explaining why he should not sanction them for the government's conduct. Attorneys for the officials and lawyers declined to comment or could not be reached. CIA spokesman George Little said the agency "takes seriously its obligations to U.S. courts."

Horn's attorney, Brian C. Leighton, said Lamberth's rulings showed that the CIA was trying to "cover up wrongdoing."

And Lamberth even accused new CIA Director Leon Panetta of lying to the court.

But the CIA never lies.

bmaz has more.

Slow Motion Avalanche

This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.

Most Transparent Government In History

The Obama Administration has really taken to this executive power and official secrecy thing. Duck, meet water. This has all happened in the past week:

MSNBC:

The Obama administration is fighting to block access to names of visitors to the White House, taking up the Bush administration argument that a president doesn't have to reveal who comes calling to influence policy decisions.

Despite President Barack Obama's pledge to introduce a new era of transparency to Washington, and despite two rulings by a federal judge that the records are public, the Secret Service has denied msnbc.com's request for the names of all White House visitors from Jan. 20 to the present. It also denied a narrower request by the nonpartisan watchdog group Citizens for Responsibility and Ethics in Washington, which sought logs of visits by executives of coal companies.

The Guardian UK:

A rift has opened between the Obama administration and some of its closest allies - Democratic leaders and environmental organisations - over its refusal to publicly disclose the location of 44 coal ash dumps that have been officially designated as a "high hazard" to local populations.

The administration turned down a request from a powerful Democratic senator to make public the list of 44 dumps, which contain a toxic soup of arsenic and heavy metals from coal-fired electricity plants, citing terrorism fears.

The LA Times:

He was appointed with fanfare in December as public watchdog over the government's multibillion-dollar bailout of the nation's financial system. But now Neil Barofsky, inspector general of the Troubled Asset Relief Program, is embroiled in a dispute with the Obama administration that delayed one recent inquiry and sparked questions about his ability to investigate without interference.

The Treasury Department contends that Barofsky does not have a completely independent role. That claim prompted a stern letter from a Republican senator, who warns that Obama administration officials are encroaching on the integrity of an office created to protect taxpayers.

The Washington Post:

A federal judge yesterday sharply questioned an assertion by the Obama administration that former Vice President Richard B. Cheney's statements to a special prosecutor about the Valerie Plame case must be kept secret, partly so they do not become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."

U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney's voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.

The Plum Line:

On Friday, there may be a major development in the torture wars: The CIA is set to release portions of a 2004 report that reportedly found no proof that torture foiled any terror plots, which would dramatically undercut Dick Cheney’s claims that torture worked.

But a news story this morning raises the question: Is the CIA trying to keep chunks that would undermine Cheney under wraps?

That last one may concern the CIA, but I'm pretty sure they work for somebody in the White House. And that's just from this week, there are countless other examples of using the state secrets privilege to shut down lawsuits, breaking a campaign promise to post every bill passed by Congress on the White House website for public comment before signing, and on and on and on.

Progressives battled George W. Bush and Dick Cheney on their unprecedented offical secrecy on the merits, but also out of a recognition that there is such a thing as Presidential precedent. If one President can get away with aggrandizing their power, the successor would certainly watch and learn. Which is exactly what has happened.

Presser Thoughts

Watched Obama's presser. Man, he doesn't want to answer anything regarding what the Bush Administration committed regarding torture at all. He did eventually admit that waterboarding is torture, but Jake Tapper (decent job Jake) really had to pull it out of him. He said "Waterboarding violates our ideals and our values. I do believe that it's torture." He made a good series of statements of why we don't torture, invoking Churchill's treatment of German detainees during World War II, and without so many words, shot down Dick Cheney's insistence that cherry-picked documents prove the success of torture techniques, basically saying that he's seen nothing to disabuse him of the notion that torture makes us less safe. I think we'll eventually see those and other memos in the slow trickle of the fact pattern.

But the elocution was maddening. He admits waterboarding was torture, but answering a question of whether the Bush Administration's torture tactics violated international law, he called them a "mistake." As if it was an oversight, not necessary to prosecute.

Now, a President makes no decisions on whether or not to prosecute anyone, and he shouldn't prejudge any future cases by agreeing on what the Bush Administration did or didn't do. But these are key issues that are not getting answered, and a continued insistence that we look forward and not backward being pressed. He called torture a "shortcut," almost conceding the point that it works, but in totality said the country is made less safe. Clearly he's getting some information of some sort showing certain techniques being effective in some way, but it's all vague, and David Axelrod just followed up on Countdown by saying it's unclear which information came from which techniques. As you know, I think it's wrong to have this debate at all, and that such a debate debases us and violates our ideals and our values just as much. And we should stop talking about whether torture works, because in totality it doesn't, and start talking about why it has been prosecuted as torture for centuries. The cost-benefit analysis might be somehwat useful, but it doesn't make the needed argument about our essential debasement when we engage in such behavior.

And by the way, with no further actions on torture, we lose the argument with allies about our values and our commitment to the rule of law as much as we did by torturing in the first place. They'll go their own way.

Judge Baltasar Garzon will probe the "perpetrators, the instigators, the necessary collaborators and accomplices" to crimes of torture...

Garzon said that documents declassified by the US administration and carried by US media "have revealed what was previously a suspicion: the existence of an authorised and systematic programme of torture and mistreatment of persons deprived of their freedom" that flouts international conventions.

This points to "the possible existence of concerted actions by the US administration for the execution of a multitude of crimes of torture against persons deprived of their freedom in Guantanamo and other prisons including that of Bagram" in Afghanistan.

Michael Scherer of Time also put together a great question about the state secrets privilege, and got the President to state that the privilege is overly broad and ought to be narrowed. As for why Obama's lawyers in the Justice Department continue to use it, he claimed that they just got into office and had to come up with these briefs and haven't mastered the issue yet to the degree that they need to. I think that's a desperately bad answer. First of all, we're now talking three months. Second, shutting down lawsuits because you haven't had time to figure out the national security implications makes little sense, and the 9th Circuit Court agreed yesterday.

Overall, I think Obama is doing a great job with a bad hand, and has really moved the country forward in the first 100 days. On a few issues - Afghanistan, the banks, and this inability to break fully with the Bush Administration on the rule of law, or offer any accountability - we part ways. That's OK - it's my job to build a movement to push him in the right direction and criticize where necessary.

But what Obama has been missing has been an independent, obstreperous citizens' movement demanding fundamental reform. Roosevelt had the labor movement, the Townsend Clubs, Huey Long, socialists and communists challenging him from the left. Johnson had the civil rights movement forcing his hand.

This kind of opposition isn't easy. No president likes to face disruption, particularly from what he would consider his base. There are similar stories told about both Roosevelt and Johnson meeting with leaders of the movements and saying something to the effect of, "I agree with you, now go out there and make me do it." But in reality, Roosevelt wanted to squelch Long and tame labor. And Johnson repeatedly ordered Hubert Humphrey to bring the civil rights demonstrations to an end, saying that they weren't helping the cause. King got a lot of pressure —to say nothing of wiretaps and FBI investigations—to get back in step.

Yet it is precisely these movements—independent, disruptive, passionate, demanding bolder reform, taking on entrenched powerful interests—that enabled Roosevelt and Johnson to achieve far more than they ever thought possible. The New Deal we remember—Social Security, the Wagner Act, Fair Labor Standards, the SEC and Glass Stegall, progressive taxation—came not in the first 100 days, but as Roosevelt, under pressure from his left, geared up for re-election. The Voting Rights Act surely would not have been passed without Selma and many other sacrifices transforming public opinion to enable Johnson to act.

We have to be pests or we get what we deserve.

White House Rejected On State Secrets

Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.

Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."

Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.

In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.

Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.

Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.

Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.

The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.

The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:

...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.

And hopefully, not just the victims but the perpetrators will have their day in court as well.

...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.

Pushing Back On A Runaway Executive

The New York Times editorial board steps up with an excellent editorial about the White House's duplicity on Bagram Air Force Base.

The Obama administration is basking in praise for its welcome commitment to shut down the American detention center at Guantánamo Bay. But it is acting far less nobly when it comes to prisoners held at a larger, more secretive military detention facility at Bagram Air Base in Afghanistan.

In February, the new administration disappointingly followed the example of the Bush White House in opposing judicial review for prisoners who have been indefinitely detained at Bagram without any charges or access to lawyers. The administration has now added to that disappointment by appealing a new federal court ruling extending the right of habeas corpus to some Bagram detainees.

Bagram differs from Guantánamo in that it is located in an active theater of war. Historically, habeas corpus has not extended to detainees held abroad in zones of combat. But the evidence suggests it was the prospect that Guantánamo detentions might be subject to judicial oversight that caused the military to divert captives to Bagram instead [...]

In the absence of a fair review process that complies with international and military law, there is no reason to feel confident that everyone detained at Bagram deserves to be there. The administration should focus on putting such a process in place, instead of wasting its energies in an appeal that simply recycles extravagant claims of executive power and perpetuates the detention policies of the Bush administration.

I think the boldfaced paragraph is the important one here, actually. The Bush Administration set up Bagram to be the next Guantanamo as a reaction to the series of court battles they were losing. By defending the practice, Obama is shielding the previous Administration from their own culpability in indefinite detention and acting in contravention of court-ordered mandates, as has disappointingly become standard practice.

Meanwhile, Greg Sargent reports that the White House has no opinion on legislation that would significantly constrain the ability for the executive to use the state secrets privilege, legislation that was sponsored by then-Senator Joe Biden and then-Senator Hillary Clinton. The Congress needs to assert itself and check the runaway executive here.

Obama's State Secrets Controversy Grows

The outcry over the President's expansive use of the state secrets privilege to shut down lawsuits against illegal wiretapping has escalated. TPM Muckraker finds a series of experts willing to acknowledge that this is no different from Bush's policy to get these lawsuits tossed out.

Ken Gude, an expert in national security law at the Center for American Progress, supported the administration's invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is "disappointing," Gude told TPMmuckraker, calling himself "frustrated."

Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. "They've taken the maximalist view that the judge has hardly any role in determining whether national security" would be compromised by the release of classified information," he said. "There's going to be people who are very unhappy, and justifiably so."

He added: "I'm very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government."

Gude's general view was echoed by Amanda Frost, an associate professor at Washington College of Law who has written extensively about issues of government transparency. Frost made clear that she hadn't followed the Jewel case, but called the Obama administration's assertion of the state secrets privilege in a similar high-profile wiretapping case involving an Oregon-based Arabic charity "indefensible." The NSA, she said, has already acknowledged the existence of the wiretapping program, and some of its details are publicly known, so the claim that national security would be jeopardized merely by allowing the trial to proceed doesn't hold water. The government is making that argument in both the Oregon case and Jewel.

There are more at the link. Even the traditional media are starting to openly question Obama officials on these points - and the officials are maintaining that the President fully supports the invocation of the state secrets privilege on expansive national security grounds to dismiss lawsuits. Dan Froomkin calls it utterly un-American. And this find by Greg Sargent makes clear the official hypocrisy at work:

Obama attacked Bush’s use of (the state secrets privilege on the grounds of national security) during the campaign. Indeed, Obama’s campaign Web site still identifies Bush’s use of the tactic as a “problem” that created undo “secrecy” and needs to be changed.

Congress can actually act here. Russ Feingold has carried legislation that would sharply limit the ability of the executive to use the state secrets privilege. Far from being the work of "America-haters" or based on a knee-jerk antipathy to George Bush, civil liberties advocates were always adamant that the standard of the rule of law be equally applied in all cases. No executive, Republican or Democratic, should have the untrammeled power to essentially supersede the courts and act above the law. Here's Feingold's statement, reflective of this belief:

I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct. The Obama administration’s action, on top of Congress’s mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program. In February, I asked for a classified briefing so that I can understand the reasons for the Department’s decision to invoke the privilege in another case, and I intend to seek information on this new case as well. I also encourage the greatest possible public accounting of the use of the state secrets privilege and welcome the Attorney General’s statement that he hopes to share his review with the American people.

Beyond the particular case at issue here, it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege. The American people must be able to have confidence that the privilege is not being used to shield government misconduct. That is why I am working with Senators Leahy, Specter, and others to pass the State Secrets Protection Act as soon as possible.

This is truly ugly stuff, and the worst aspects of the Obama Administration thus far, in fact almost all of them, have been when they have sought to participate in what amounts to a cover-up. They should not have the tools to do so, at least in this case.

The Cover-Up Is Worse Than The Crime

I think I mentioned it in passing once, but the Obama Administration's reliance on the state secrets privilege to try and throw out warrantless wiretapping lawsuits ought to concern every American. The President and the Justice Department have now implicated themselves in the illegal activity by using these means to cover it up. As Glenn Greenwald says, progressives have almost unanimously condemned Obama for this conduct - including some of his most fervent supporters.

The fact that Keith Olbermann, an intense Obama supporter, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here. Just as revealingly, the top recommended Kos diary today (voted by the compulsively pro-Obama Kos readership) is one devoted to attacking Obama for his embrace of Bush/Cheney secrecy and immunity doctrines. Also, a front page Daily Kos post yesterday by McJoan vehemently criticizing Obama (and quoting my criticisms at length) sparked near universal condemnation of Obama in the hundreds of comments that followed. Additionally, my post on Monday spawned vehement objections to what Obama is doing in this area from the largest tech/privacy sites, such as Boing Boing and Slashdot.

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Obama has done much to commend him, and yet in several key areas - the banks, Af-Pak policy, and a portion of these civil liberties issues - he has not fulfilled his own rhetoric or offered any substantive change from the Bush Administration. And it's important for a healthy ideological movement to acknowledge that, and I think progressives are passing that test.

As for this specific case, Obama's DoJ is acting in a lawless fashion, to be blunt. They are using the state secrets claim in ways more expansive than Bush's lawyers ever did, to cover for the previous Administration and, in the process, assert executive power to essentially shut down the judicial branch and claims under the law. It is indefensible. What's more, it's not likely to work, as all the relevant case law in this area shows, making it an even more baffling position to take.

The Sickness Is Still With Us

After printing excerpts of the Red Cross torture report previously, Mark Danner has now published the entire report, every damning detail, along with a companion article about the contents therein. Scott Shane's article in the New York Times highlights the participation of medical personnel:

Medical personnel were deeply involved in the abusive interrogation of terrorist suspects held overseas by the Central Intelligence Agency, including torture, and their participation was a “gross breach of medical ethics,” a long-secret report by the International Committee of the Red Cross concluded.

Based on statements by 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006, Red Cross investigators concluded that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.

Facilitating such practices, which the Red Cross described as torture, was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill treatment.”

At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”

The description of medical workers studiously monitoring the pulse or oxygen level of a suspect being tortured, or measuring the swelling in another's leg as he is shackled to the ceiling and forced to stand, seems the very banality of evil.

In a separate report released yesterday, military officials were implicated in and aware of torture techniques at Guantanamo, contrary to their own Congressional testimony.

Today Seton Hall Law delivered a report establishing that military officials at the highest levels were aware of the abusive interrogation techniques employed at the detention camp at Guantánamo Bay (GTMO), and misled Congress during testimony. In addition, FBI personnel reported that the information obtained from inhumane interrogations was unreliable.

Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented on the findings: "Who knew about the torture at GTMO? Turns out they all did. It's not news that the interrogators were torturing and abusing detainees. We've got FBI reports attesting to this. But now we've discovered that the highest levels knew about the torture and abuse, and covered it up.

"Abu Ghraib was the flashpoint and provoked the FBI to formally hand its reports to the DOD, which in turn forced the DOD to respond with what became known as the Schmidt Report. Schmidt's investigation was essentially a whitewash, but, ironically, the abuse was so pervasive that his team turned up still more incidents. To conceal the problems documented by both the FBI and the military, the DOD published an incomplete, sanitized report, culminating in Schmidt testifying before Congress that there was no torture or abuse at GTMO [...]

FBI personnel stationed at GTMO submitted a series of unsolicited reports describing at least 118 improper interrogation techniques: physical harm to the genitals--to a degree punishable by life imprisonment as sexual assault under military law; forced viewings of homosexual pornography; denial of food and water; disorientation techniques such as sleep deprivation; and religious abuse such as forced "satanic baptisms."

And, in order to keep those tortured at Gitmo, the Justice Department hid the mental illness of one of their top witnesses:

The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.

In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.

During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.

"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.

This sickness, with the kangaroo courts and the cover-ups and the implication of more and more officials, will remain as a black cloud over the head of this government if it's not dealt with properly. It is not enough to "look forward." We tortured multiple prisoners with multiple banned techniques, all in the name of "fighting the war on terror," in actuality making us less safe after their eventual disclosure and providing no intelligence value. As Danner notes, this has been going on for years, and in the absence of a ruling - and punishment - for those who ordered this, we will continue to have corrosive and distorting fights over the efficacy of this violation of American and international law.

It is because of the claim that torture protected the US that the many Americans who still nod their heads when they hear Dick Cheney's claims about the necessity for "tough, mean, dirty, nasty" tactics in the war on terror respond to its revelation not by instantly condemning it but instead by asking further questions. For example: Was it necessary? And: Did it work? To these questions the last president and vice-president, who "kept the country safe" for "seven-plus years," respond "yes," and "yes." And though as time passes the numbers of those insisting on asking those questions, and willing to accept those answers, no doubt falls, it remains significant, and would likely grow substantially after another successful attack.

This political fact partly explains why, when it comes to torture, we seem to be a society trapped in a familiar and never-ending drama. For though some of the details provided—and officially confirmed for the first time—in the ICRC report are new, and though the first-person accounts make chilling reading and have undoubted dramatic power, one can't help observing that the broader discussion of torture is by now in its essential outlines nearly five years old, and has become, in its predictably reenacted outrage and defiant denials from various parties, something like a shadow play.

I agree with President Obama that torture hasn't made us safer, but the continued failure to deal with what the Bush Administration has done CONTINUES to cripple our political influence around the world and our moral capability to lead. John Conyers released a report to little fanfare last week called "Reining in the Imperial Presidency" detailing all the lawlessness enacted, the politicization of justice, the assertion of extreme executive power, the assaults on individual liberty, the retribution against critics, the passing of secret law, all of it. And the committee offers 50 recommendations for how to reverse this challenge to Constitutional government. Right at the top are these two:

Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance.

The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.

It's not just about ending these practices. By refusing to investigate them, and even actively invoking claims like the "state secrets privilege" to shield any possibility of a reckoning, the Administration implicates itself. Because they must use the same extreme claims of executive power, in some cases more so, to facilitate the cover-up. As Danner says:

There is a sense in which our society is finally posing that "what should we do" question. That it is doing so only now, after the fact, is a tragedy for the country—and becomes even more damaging as the debate is carried on largely by means of politically driven assertions and leaks. For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true "empirical evidence of the last five years, hard years," and speak out, clearly and credibly, about what that story really tells.

In failing to wrestle with this, or letting Spain do it for us, we lose ourselves.

Unitary Executive Theory Makes A Comeback

Marcy Wheeler and Glenn Greenwald say basically all that needs to be said about the Obama Administration's shameful efforts to block a ruling on warrantless wiretapping in the Al Haramain case. It's not only that this White House is running interference for the last White House, it's the basic copying of the same dangerous theories of unitary executive power that should have everyone worried.

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:

"In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the
Government to grant counsel access to classified information when the Executive Branch has denied them such access."

That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency.

Just for a little background on the Al Haramain case - the Islamic charity, in an accidental court filing from the Bush Justice Department, discovered they had been spied upon illegally by the government, without a warrant. Their certainty is due to the transcript of the eavesdropped conversation that the government gave them. Since that time, both the Obama and Bush Administrations have ordered that the document, and therefore the evidence for illegal conduct, is classified and cannot be admitted into court. Despite several rulings to the contrary, this President - like the one before him - is claiming that only the executive can decide what may be done with classified information, with the potential being that any President can just classify whatever compromising information exists about his or her activities and shield it from the view of the Congress, the courts, and the people. It is an expansive and un-American view of the Constitution, used in this case to service a massive cover-up.

And this effort to use the state secrets privilege to this degree has been thoroughly rejected in this case. But the government continues to appeal. Aside from admitting that Bush's DoJ lied to the presiding judge in an earlier filing, there is nothing redeemable about Obama's conduct.

There is simply so much that Obama's team has had to overturn from the Bush regime, they're probably getting heartburn from all of the decisions. Yet while, in isolated respects, they've done a decent job, it cannot excuse this conduct. I don't know whether it's foreknowledge of the extent of the lawbreaking, or pressure from the telecoms to save their immunity (which could absolutely be threatened by this ruling, as there's a pending case with the same judge, Vaughn Walker) or what, but Washington is united in really, really not wanting the truth on warrantless wiretapping to come to light. It is despicable that this has become so vital that Obama, a constitutional law professor, would adopt the same unitary executive theory than he actually swore an oath to reject.

Binyam Mohammed and The Need For Justice

Glenn Greenwald has the sordid details of the Binyan Mohammed case, which are causing a stir in Britain and around the world but barely a ripple here. Here's his ultimate summary:

So, to recap: first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world. Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him. Then, once he was broken beyond the point of return, we shipped him off to Guantanamo.

After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:

"For several centuries the common law has excluded evidence obtained by cruel, inhuman or degrading treatment; it cannot be used to secure a conviction."

We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them. And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.

One thing that's missing, notable if only for its unbelievable nature, is that Mohammed was imprisoned as a terrorist after confessing to reading a satirical article in a magazine, written by noted terrorist Barbara Ehrenreich, about how to make an H-bomb. Really.

There was a wild claim a week or so ago that the CIA was holding the torture information from President Obama, which is absurd considering that he has unilateral ability to classify and declassify documents (unless they're protecting him from criminal liability). While some US lawmakers are demanding that the evidence be shown, and others are trying to get the State Secrets Protection Act revived so that the Administration cannot hide behind national security any longer, ultimately we're still stuck with a group of government officials putting self-interest above the rule of law:

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

(As Hilzoy makes reference to, is does look like Mohammed may actually be released shortly.)

Ultimately, this is what the Administration is throwing away by blocking accountability, while parroting the talk of how we value the law in America and we hold no man above it. An international group of judges have made their pronouncement on what this evasion of responsibility does to our moral standing and values, and it's a powerful statement:

"We have been shocked by the damage done over the past seven years by excessive or abusive counterterrorism measures in a wide range of countries around the world," said Arthur Chaskalson, a member of the International Commission of Jurists, in a statement announcing results of a three-year study of counterterrorism measures since the Sept. 11, 2001, attacks.

"Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights,'' said Chaskalson, a former chief justice of South Africa.

"It would be better that the government recognized that there are risks -- rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism -- that we live in fear and under a police state," said Stella Rimington, former head of MI5, the domestic intelligence-gathering agency.

None of this changes unless we recognize that crimes were committed and that they must be adjudicated, with those held responsible brought to account. Otherwise, the cancer will metastasize with another President in another era and it will come back worse than before. In addition, continuing to ignore treaty obligations and flout international law while demanding that other nations be held to that same standard is crippling for American legitimacy. Indeed, some in the Administration claim to know that there are some terrorist suspects who we simply cannot prosecute and must hold indefinitely, while simultaneously knowing that there are individuals inside the previous government who committed and authorized direct crimes but cannot be held responsible. The double standard is staggering.

Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantánamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyal’s new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Amazing. We have powerful individuals in the Obama Administration arguing for a parallel justice system in the United States. No wonder Charlie Savage calls this a return to Bush-era national security policies. Perhaps the most disgusting thing Savage digs up is this quote from Greg Craig, the White House counsel:

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

"The institution of the Presidency" is seen as more important than the laws the President swears to uphold and execute. And thus an empire crumbles.

While I agree with Glenn Greenwald that there is a distinction between what Obama Administration officials say and what the President will actually do, and that Obama has the opportunity to make a better outcome here (especially if pressured by a newly emboldened Congress), the essential truth cannot be questioned:

Nonetheless, there is no question that Obama has already taken some truly alarming steps, including -- in addition to those listed above -- invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I've become convinced -- for reasons Darren Hutchinson has argued and Savage today pointed out -- that there's more potential mischief in that policy than I immediately recognized.

There's just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions -- he just needs more time; it's only been three weeks -- is a complete straw man.

The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.

And we must wage them. We must fight for accountability and justice, starting with a full investigation into Bush-era crimes and a full release of those reports already completed. The American people deserve the truth. Furthermore, we must ensure that the changes in policy resulting from the new Administration on these issues are real changes and not the same policies with a friendlier face.

Congress The Civil Libertarians Of Last Resort?

OK, what the f%&! is going on here? The Obama Administration has an empirically good team on civil liberties at the Justice Department. And yet in the last few days, DoJ lawyers have backed up President Bush's extreme use of state secrets privileges, Leon Panetta - in a generally solid hearing at the Senate Intelligence Committee - told the panel that some detainees were "too dangerous to prosecute" and may have to be held for a long time, and now Elena Kagan, nominated as Solicitor General, has agreed that "enemy combatants" can be detained without trial:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

Now reading further, Kagan was apparently led by the nose by Huckleberry Graham on this one. And this isn't totally bad, but there's a significant amount of mission creep that can result. For example, with whom are we at war? When is that war considered over? What is the battlefield? For an Administration that is trying not to use the phrase "war on terror," their stated policies are not necessarily reflecting that. Not to mention the fact that the Supreme Court has ALREADY RULED in this matter and decided that "enemy combatants" as defined by the Bush Administration have habeas corpus rights. Simply put, we are not a nation of laws if we have a separate set of them for some people. The rules of criminal justice can easily apply to all, at the minimum by charging suspects with a crime and giving them a trial.

Perhaps the good that's coming of this is the pressure it is putting on Congress to act, and how they are actually meeting the challenge. Russ Feingold blasted the Administration for their decision to invoke the state secrets privilege, and he is asking for a classified briefing on the matter as well as pushing his own legislation that would limit how state secrets can be used. Similarly, Patrick Leahy is being very adamant about the need for investigating the crimes of the Bush Administration, even talking to the White House counsel about it:

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."

The dialogue between the Vermont Democrat and the president's office is a new phase in a delicate process concerning how best to handle potential crimes in the previous White House. Leahy proposed an investigatory commission on Monday, after which the president -- speaking at his first news conference -- said he did not currently have an opinion on the plan. Obama went on to say that he would rather look forward than backward, but he promised to prosecute any crime -- whether committed was a former White House official or everyday citizen [...]

Leahy did add an important ripple to the story in the interview with the Huffington Post: 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."

I am unhappy with some of the moves by the Administration on these issues thus far, but am heartened by Congress stepping up to perform its oversight functions.

....the House is introducing a companion bill on the state secrets privilege today, with Rep. Jerrold Nadler (D-NY), John Conyers (D-MI), Zoe Lofgren (D-CA), and Tom Petri (R-WI) signing on.

No Excuse For This

There is no excuse for the Obama Justice Department invoking the state secrets privilege to get a court case on extraordinary rendition thrown out. Men who were illegally kidnapped, flown to Guantanamo and tortured sued the government and the owner of the aircraft used in the rendition, and Obama's officials basically said that the whole matter was a secret and cannot be adjudicated. Here's Ben Wizner of the ACLU, who was one of the lawyers on the case:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.

Greenwald:

What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act, and it's hard to disagree with what ACLU Executive Director Anthony Romero said today:

"Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. 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."

As Greenwald goes on to note, Obama has claimed to end this practice of rendition, and yet is invoking the state secrets privilege because revealing the scope of the program would degrade CIA operations - operations that he has said no longer exist. Those statements aren't compatible, and one can only conclude that rendition is continuing, perhaps in a kinder and gentler way. Or more to the point, the Administration doesn't want any consequences for the crimes of the past, reserving the right for future Presidents to absolve them of crimes in the future.

Now, it could be - probably not, but could be - that as Attorney General Holder is reviewing all state secrets claims, the Justice Department wanted to maintain consistency until a decision was made at the top. However, that doesn't square with the actual conversation in the courtroom:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more. The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Just to bring in some perspective, let's add to this what has been alleged to have happened to one of the five Brits suing the government in this case, Binyam Mohamed. The Telegraph UK reported over the weekend:

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain.

Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was picked up in Pakistan in 2002 on suspicion of involvement in terrorism, rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in 2004. All terror charges against him were dropped last year.

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

Another source familiar with the case said: "British intelligence officers knew about the torture and didn't do anything about it. They supplied information to the Americans and the Moroccans. They supplied questions, they supplied photographs. There is evidence of all of that."

It was done in our name, using our tax dollars, and now this new Administration, which has spoken very specifically and on the record about the pernicious nature of the state secrets privilege, is now invoking it the same way George Bush had, to avoid accountability. Applying state secrets to get entire court cases thrown out is just the most extreme version of this. Russ Feingold has said:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

Leon Panetta is on the record saying there will be no prosecutions for CIA officers who implemented the crimes of the Bush era. Last night, Obama responded to a question by the Huffington Post's Sam Stein about the need for a truth and reconciliation commission, just so that we would know the extent of the lawbreaking of the past eight years, by dodging the question, saying that if there were "clear instances of wrongdoing" prosecutions should occur, he would be more inclined to look forward and not backward. And we even have evidence that Obama is backsliding on the closure of Guantanamo:

President Obama assured relatives and victims of the Sept. 11, 2001, attacks and the bombing of the USS Cole that he is keeping an open mind about how to handle the approximately 245 detainees held at the U.S. military prison at Guantanamo Bay, according to participants in an hour-long meeting yesterday at the White House.

The president met with about 40 family members and victims, who hold different views on his decision to close the prison in Cuba within a year. The exchange, which was sometimes passionate but never acrimonious, left some who were deeply skeptical of the administration's decision to suspend military commissions at Guantanamo Bay satisfied that the president has not yet decided to abolish the current system of prosecuting suspected terrorists.

Obama told the group that he was only hitting the "pause button" when he sought the suspension of proceedings against 21 detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. And he assured the group that he wants the swift prosecution of those responsible for the terrorist attacks and their facilitators.

This is the rot that comes from a lack of accountability. In covering up someone else's crimes, you inevitably use their methods, which are crimes themselves. They maintain an architecture which can easily be pulled out to cover up your OWN crimes. And it violently damages the rule of law and the ability for Americans to believe in their government.

I'm sick about this.

Facial Challenges

The Supreme Court just rejected a court challenge to the Bush Administration's warrantless wiretapping program. And they did so in the most Kafka-esque way possible.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

This fits with the demise of "facial challenges," motions that a law is unconstitutional on its face. The 9th Circuit upheld the state secrets privilege last year even when the Islamic charity who sued had TRANSCRIPTS of their own conversations, which were inadvertently handed to them by the government.

We have, in addition to an extremely conservative Supreme Court, a national security state where official secrecy trumps Constitutional violations.

If The President Does It, Then It's Not Illegal

Mike Mukasey, Attorney General of the United States, before the House Judiciary Committee today.

Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let's concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you're talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn't. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration.

Delahunt: I can't cite you a case.

The Attorney General is saying that the President can do anything he wants, break the law any way he wants, as long as the President's own Justice Department, populated his own handpicked officials, validates it. And he's saying it directly to members of Congress, essentially telling them that they don't exist. They have no power to prosecute because the Justice Department won't take up the case, and the courts have no power to adjudicate because these are official state secrets. There is only one branch of government that matters.

JMM:

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

Good thing we kept our powder dry on impeachment. That certainly didn't embolden a runaway President.

Fear, Itself

The Senate is debating FISA as we speak. It's certainly fortuitious of them to hold this debate and these votes during the two days leading in to Super Tuesday, where there is no oxygen for any other political story whatsoever. When you're scheming to remove Americans' fundamental civil liberties, better to do it under cover of darkness.

In the reality-based community, we understand that a rule by fear is no way to run a democracy, and is actually making us less safe.

Let me be clear: Our ability to track and monitor terrorists overseas would not cease should the Protect America Act expire. If this were true, the president would not threaten to terminate any temporary extension with his veto pen. All surveillance currently occurring would continue even after legislative provisions lapsed because authorizations issued under the act are in effect up to a full year.

Simply put, it was wrong for the president to suggest that warrants issued in compliance with FISA would suddenly evaporate with congressional inaction. Instead - even though Congress extended the Protect America Act by two weeks - he is using the existence of the sunset provision to cast his political opponents in a negative light.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections [...]

In these still treacherous times, we can't afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration's attempts to erode FISA's legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

That's the sad legacy of this Administration; promoting fear as a way to bully a cowering group of Democrats into making key concessions on our Constitution and civil liberties. In doing so we move closer to a national security state, where the state secrets privilege keeps a veil of secrecy over executive branch abuses, where journalists who try to inform the public are threatened with subpoenas and jail time, where fear clouds reason and narrows the debate, where the war machine perpetuates in the name of fear and "keeping people safe," a fine conduit for continued imperialism that violates international law with incursions into sovereign nations.

American military forces in Iraq were authorized to pursue former members of Saddam Hussein’s government and terrorists across Iraq’s borders into Iran and Syria, according to a classified 2005 document that has been made public by an independent Web site.

The document, which was disclosed by the organization Wikileaks and which American officials said appeared authentic, outlined the rules of engagement for the American division that was based in Baghdad and central Iraq that year.

(Interestingly, that story also shows that Muqtada al-Sadr had his status as a hostile foe "suspended" and basically protected from attack. Considering that Shiite extremists are the most dangerous facet of the current war, you'd think they wouldn't placate him so much. Of course, Sadr is an example of the severe complications we have in Iraq.)

Ending a culture of fear is so crucial to the next Democratic President. We have lost so much because of fear.

The Latest Twist on FISA: A New "Compromise" That's Anything But

Yeah yeah, I know, Joe Klein is an idiot and a dishonest hack, and Time Magazine did its best to shield him from criticism, even rejecting numerous counterpoints from Democratic legislators who took issue with Klein's smears. This is all well-documented. Unfortunately, it's also irrelevant to the new heart of the matter on FISA. Arlen Specter is pushing a bullshit "compromise" that actually does pretty much the same thing as telecom amnesty would do.

And voila! your wishy-washy compromise (Specter's statement; the bill):

"The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S." [...]

But here's the killer:

"nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege"

Given that much of BushCo's motivation to give the telecoms immunity relates to BushCo's own exposure for illegally wiretapping Americans, and given that the telecom lawsuits were so important because they provided an angle around State Secrets, this pretty much sinks the lawsuits anyway.

In other words, the government becomes the substitute defendant in all the telecom lawsuits, the government can still invoke state secrets, meaning the lawsuits are very likely to be squashed, and ipso facto, the telecoms get away with lawbreaking. And more important, we never learn the extent of the spying on Americans.

There's a clause in there that leaves the telecoms on the hook for any spying prior to 9/11, but for the most part, this would be the end of any opportunity to reveal the breadth and scope of the President's warrantless wiretapping program. If Bush decided it was legal, then the telecoms get away scot-free.

And this will be voted on in the Senate Judiciary Committee TOMORROW.

So, as much as I agree that Joe Klein is a dick, I wish Glenn Greenwald would step away from that for a moment and back to the destruction of the rule of law that's about to occur under all of our noses. Substitution is just a kinder and gentler word for retroactive immunity. It's the kind of "bipartisan compromise" that the Broders of the world will love, but which is actually a far-right effort to indemnify participants in the surveillance of Americans. This has broad consequences for the surveillance state and the future of civil liberties. Mr. Greenwald, your country needs you. Refocus.