Patterico's Pontifications

2/10/2009

Obama Administration Position on State Secret Issue: Exactly the Same as the Bush Administration Position

Filed under: Civil Liberties,Obama,Terrorism — Patterico @ 8:25 pm



Jake Tapper reports that the Obama administration has advanced the same position as the Bush administration on an issue of state secrets:

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

The case involves five men who claim to have been victims of extraordinary rendition — including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

A year ago the case was thrown out on the basis of national security, but today the Ninth U.S. Circuit Court of Appeals heard the appeal, brought by the ACLU.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn’t changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

Glenn Greenwald is livid:

This was an active, conscious decision made by the Obama DOJ to retain the same abusive, expansive view of “state secrets” as Bush adopted, and to do so for exactly the same purpose: to prevent any judicial accountability of any kind, to keep government behavior outside of and above the rule of law.

He also approvingly cites this comment:

The worst is yet to come. By that I mean that the Obama DOJ’s embrace of Bush’s use of the state secrets privilege to shield these crimes from public view will (probably already has) trigger a tidal wave of finger-wagging from the right that this, of course, means civil libertarians have been deeply Unserious about national security all this time.

That is, once Obama “got a chance to sit in the President’s chair in the Oval Office” and hear about all the top-secret scary threats to America, he realized that the Bush administration was right to commit all these crimes and egregious uses of secrecy. This will, in turn, serve to “prove” quite usefully that the entire panoply of complaints about rampant Bush lawlessness in the sphere of anything arguably related to national security can be dismissed as fringe and – I dare to say – dangerous.

Bravo.

Aw, y’all aren’t going to make that argument, are you? [Ed: please insert smiley-face emoticon here. — P]

P.S. I’ll admit the ugly truth: in addition to being a tree-hugging animal lover, I’m not a big fan of the state secrets doctrine. Which is to say, I understand the need for such a doctrine, but I also worry about its abuse.

But do I also think the left has been deeply unserious about terrorism? Yup — many of them. For example, Glenn Greenwald is rather fond of referring to the terror threat in terms that are often sarcastically capitalized.

In other words: yes, the right may well may the point that Greenwald’s commenter fears the right will make. And the right may also have a point.

30 Responses to “Obama Administration Position on State Secret Issue: Exactly the Same as the Bush Administration Position”

  1. Purple prose all ’round my brain

    lately Greenwald still sounds the same

    daleyrocks (5d22c0)

  2. People who thought Obama or Clinton (had she won) were going to be more free with state secrets or nicer to just everyone at Guantanamo were delusional. He now knows things that he didn’t know before.
    I bet O writes a few signing statements too. He’s the CEO now, why would he give up the powers of the Executive that have been slowly accruing since Regan?

    EdWood (0bd853)

  3. That is, once Obama “got a chance to sit in the President’s chair in the Oval Office” and hear about all the top-secret scary threats to America, he realized that the Bush administration was right to commit all these crimes and egregious uses of secrecy. This will, in turn, serve to “prove” quite usefully that the entire panoply of complaints about rampant Bush lawlessness in the sphere of anything arguably related to national security can be dismissed as fringe and – I dare to say – dangerous.

    Yes, were the Gleeeeeens ideas ever to become the guiding policy, it would be dangerous. Even when he is trying to chastise Bush, who is no longer in office, the Gleeeeeens insist on their ongoing mendacious language calling it lawlessness, and assuming that crimes were committed. He/they are douchenozzles.

    Nice to see that in some ways, Baracky’s rhetoric was just that, rhetoric. Sadly, that same rhetoric tarnished the name of a good man, President Bush. You want to talk about UN-serious, Gleeeeeeeens? Mendoucheous asshat, heal thyself.

    JD (c6800b)

  4. I can understand Glenn Greenwald being livid.

    Image a author and Constitutional lawyer with his brain capacity being fooled like a lab rat.

    See .. you can fool most of the people most of the time.

    Neo (cba5df)

  5. Neo – And you can fool all of the Gleeeeens all of the time.

    JD (c6800b)

  6. Greenwald, we have to admit, is actually being intellectually honest here. If Bush was as despicable as they say, then Obama is actually worse than Bush for not only committing the same sins, but being an utter hypocrite after campaigning against exactly what he’s now doing.

    Between Obama and Bush, the civil rights activist would have no choice but to choose Bush.

    At least a few people on the left are admitting it. Doesn’t make up for the sockpuppet BS, but it’s worth respect.

    Joco (4cdfb7)

  7. you can fool most of the people most of the time

    You can fool all of the people some of the time, some of the people all of the time, and that’s enough to make a decent living.

    Horatio (55069c)

  8. but it’s worth respect.

    Joco – Though you may have a point, given his track record of the last 8 years, the overt dishonesty, the partisan hackery, and the overall mendacity of the Gleeeeeeeeeeeeens, I am not willing to give him respect for doing what he should be doing.

    JD (c6800b)

  9. One of my Con Law professors made it a point to emphasize that the power of the Executive rarely, if ever, recedes – despite the fancy rhetoric of the Executive of the day.

    Leviticus (ac4602)

  10. And now, Obama’s nominee for solicitor general is saying that the administration can indefinitely detain Al Queda detainees.

    Bwaaahaaahaaa. There’s your “Change”.

    SPQR (72771e)

  11. SPQR – Correct. From the LA Times, although there theoretically is the issue of the botched Supreme Court decision and whether the prisoners have ties to Al Queda:

    “By David G. Savage
    February 11, 2009
    Reporting from Washington — 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……..”

    http://www.latimes.com/news/nationworld/nation/la-na-solicitor-general11-2009feb11,0,7158432.story

    Why the left continued to be dishonest about established principles of of international law for the duration of the Bush Administration is a question I will never understand. The only explanation I have is pure BDS.

    daleyrocks (5d22c0)

  12. daleyrocks, remember how many loons called for trial as war criminals when Bush admin legal advice conflicted with their beliefs?

    SPQR (72771e)

  13. SPQR – Now they will have to call on themselves to be prosecuted.

    JD (c6800b)

  14. JD, do not cease respiration while awaiting that outcome.

    SPQR (72771e)

  15. I don’t see a lot of Bambi’s supporters cheering this on. Why is that?

    steve miller (3381bc)

  16. “daleyrocks, remember how many loons called for trial as war criminals when Bush admin legal advice conflicted with their beliefs?”

    SPQR – Leahy and Nostrildamus are trying to convince Obama to do it as we speak.

    daleyrocks (5d22c0)

  17. steve – Baracky can do no wrong. Were they to chime in, they would point out that Bush had a bloodlust for torture, and though their policy is no differenct, their hearts are more pure. Or some BS drivel like that.

    JD (c6800b)

  18. Steve: I voted for President Obama twice, so I guess I count as a ‘supporter’, although I was always somewhat ambivalent about my support for him and in both cases voted more against his opponents than for him.

    I haven’t been chiming in for two reasons:

    (a) if it’s true that the Obama administration is adopting the same policies with regard to state secrets as did the Bush administration, then I’m extremely disappointed and not sure how to pursue my disappointment in the political sphere.

    (b) i’m not sure that it’s true; given that the current administration has not yet been in office for a full month, and that many intermediate-level staff jobs have not yet been filled, it’s possible to read the actions in this case as being a holding pattern: “we’re not going to change anything until we’ve had a chance to fully analyze the situation and figure out what we want to change.” If that’s what’s happening, I think it’s totally appropriate; taking the time to understand the situation before implementing policy changes is how things should be done.

    Since I can’t tell if what’s happening now is a holding pattern or an actual policy decision, I don’t feel comfortable either defending the administration or denouncing the administration.

    aphrael (e0cdc9)

  19. “I don’t see a lot of Bambi’s supporters cheering this on. Why is that?”

    steve – Hear that? It sounds like….heads exploding. I love the sound of heads exploding in the afternoon.

    daleyrocks (5d22c0)

  20. aphrael – Read the statements of the Solicitor General nominee at her confirmation hearing provided at the link above. She merely confirms the position of the Bush Administration. Whether or not that is the position of the Obama Administration does not matter. She expresses that as her view of the law.

    daleyrocks (5d22c0)

  21. Daleyrocks,

    (1) I think you’re conflating two different issues: the administration’s position with respect when it wishes to assert a state secrets defense, and the administration’s position with respect to “enemy combatants”. My comments above were entirely directed at the question of the state secrets policy.

    (2) I think that Sen. Graham’s questioning, and Dean Kagan’s answers, both missed the point. I concede that the government has the authority to detain without trial (and until the end of the ward) people it has picked up on the battlefield. My dispute has always been that it should have to demonstrate to an independent magistrate that it has, in fact, picked the people up on the battlefield and isn’t just claiming to have done so. Nothing in the excerpt provided addresses that question in any way.

    aphrael (e0cdc9)

  22. aphrael – I wasn’t conflating the two. I was suggesting that you look at a new development. Sorry you were confused.

    I see no reason why it makes a difference if the individual is picked up on a battlefield if they are an enemy combatant, though. Seems to be an irrelevant point. Spies were typically not picked up on the battlefield and shot upon capture. Would your thought be to shoot prisoners not captured on a battlefield? Somehow I doubt that is what you are thinking.

    daleyrocks (5d22c0)

  23. aphreal — they could have asked to have the oral argument postponed while the Gov’t brief was under review. That would have signaled to the 9th Cir. that a change in policy was under consideration.

    The fact that they asked for no postponement, and then announced that there was no change in the policy notwithstanding the election result suggests that there is not going to be a change in the policy … or at least there is not going to be a change in the Admin. position on the asserting of the privilege in this particular case.

    WLS Shipwrecked (26b1e5)

  24. aphrael, I’m not going to pick on you, because I appreciate your honesty.

    But this does seem to be a signature issue of the Obama campaign and he’s flipped 180 degrees.

    I know it’s almost a cheap shot, but at what point will he have reversed his stance enough to make you regret voting for him? He’s not quite John McCain yet, is he – at least he knows how many mansions he owns.

    Was he serious about anything he promised? He made a big deal about Katrina; has he visited Kentucky yet? Or are rednecks just not Americans?

    steve miller (3381bc)

  25. aphreal — define “battlefield” in context.

    That’s the rub.

    WLS Shipwrecked (26b1e5)

  26. WLS Shipwrecked: yes, you are correct that they could have asked to have the oral argument postponed, and they probably should have done that.

    As for defining ‘battlefield’, I agree that that is part of the problem. But noting that it’s difficult to define doesn’t mean we shouldn’t do the work. :)

    aphrael (e0cdc9)

  27. Steve Miller: I think there are a couple of different issues there.

    (a) I will not regret voting for President Obama until and unless something happens to convince me that one of his opponents would have done a better job. I don’t get to vote for the perfect candidate; I get to pick for the best candidate among my available options.

    (b) I voted for Ralph Nader in 2000. But it was not until 2003 or so that I concluded that I was unhappy with the job President Bush was doing. I think that it takes time to grow into the job, and that making judgments based upon the successes or failures of someone who has just started is unreasonable. The best – or worst – I would say about President Obama at this point is that, in my mind at least, the jury is still out; and I don’t think it is unfair of me to ask for at least as much time to make that determination in the case of a man I voted for as it took me in the case of a man I voted against.

    aphrael (e0cdc9)

  28. aphrael – I appreciate the honesty.

    Do you know where that line is? If it were McCain, the line would be supporting partial-birth abortion. I’d rather have an abomination I know (Obama) at that point than a turncoat.

    What issue or set of issue would lead you to regret your vote and wish you’d voted for another party?

    I would not vote for Nader as I feel he is a fraud personally and a political naif. You can’t be the president without followers, and there just aren’t enough former Corvair owners out there.

    steve miller (3381bc)

  29. WLS Shipwrecked and aphrael – What am I missing with this definition of “battlefield.” If we detain a prisoner who can be classified as an enemy combatatant, through a hearing process or not, does the location from which they are detained actually matter? In the case of uniformed enemy soldiers? In the case of Al Qaeda members who do are not a party to and do not adhere to international agreements related to the treatment of prisoners of war and would not normally be considered enemy combatants under such agreements?

    daleyrocks (5d22c0)

  30. Steve Miller: I don’t think it’s that clear.

    Let me use DOMA as an example. I am a strident opponent of DOMA and would like to see it repealed post-haste. I expect that President Obama will do that. But if he doesn’t, I don’t know that it will make me convinced that he is doing a bad job; for one thing, his job requires prioritizing things, and for another, politics requires horse-trading. If he trades away my issue, I will be angry, and I will feel betrayed … and I will consider that, maybe, whatever he got for it was important enough to make it the right choice for the country.

    Where I’ll start questioning my decision is if I come to believe that either Sen. McCain or Secretary Clinton – the two people I voted against while voting for him – would have in aggregate made more decisions the right way. Which, I think, is a judgement that would inevitably take time.

    For what it’s worth, I now think it was a mistake to vote for Mr. Nader, and would not do it again.

    aphrael (9e8ccd)


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