[INDENT] It will be extremely difficult for even the most loyal Obama followers to deny that this was an active and conscious decision on the part of the Obama DOJ to embrace one of the most extreme abuses of the Bush presidency. … [/INDENT] [INDENT]It isn’t merely that the Obama DOJ is invoking the privilege for this particular case, which contains allegations of torture that are as brutal and severe as any. That’s bad enough. But worse is that they’re invoking the most abusive parts of the Bush theory: namely, that the privilege can be used to block the adjudication of entire cases (rather than, say, justify the concealment of specific classified documents or other pieces of evidence), and, worse still, can be used to prevent judicial scrutiny even when the alleged government conduct is blatantly illegal and, as here, a war crime of the greatest seriousness. They’re embracing a theory that literally places government officials beyond the rule of law. No minimally honest person who criticized the Bush administration for relying on this instrument can defend the Obama administration for doing so here.
The article seems a touch hyperbolic, although I can understand why. The Obama DOJ only said that they stand behind the policies specifically for this case:
"<i>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.
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.</i>"
Groups like the ACLU need to understand that unwinding Bush era policies isn’t necessarily something one can do with a snap of the fingers and a blanket statement. It sucks, but anyone who thought that Obama would have us out of war, out from under civil injustice, and out from economic difficulties in his first 100 days (or something) needs to get a little historical perspective.
Greenwald’s style can be a bit overheated. But he’s also been firm on saying Obama need to be judged on what he does. This is one of the first few things he’s done in this area, and it unambiguously contradicts his earlier policy.
Same here. We can’t credibly accuse the Bush admin of being evil for something like this (or in this case, this specific example) and then give Obama a free ride if they say, yep, what they were doing is proper and we stand behind it. Nor do I think it’s valid to hide behind “well, they can’t change everything that was screwed up in the first 100 days” - this is a situation in which they looked at the situation and made a decision.
So, imo, it was either OK under Bush and thus the right decision by Obama, or it was absolutely wrong under Bush and thus Obama has made a bad decision.
(lovely to be able to stand far away with little data and make such judgements! ;) )
As far as I can tell, he only did the second one. It’s not necessarily ideal, but it’s pretty different from actually ordering extraordinary renditions, and it doesn’t contradict the earlier policy decision at all.
It’s the difference between saying ‘this piece of evidence is too secret to be allowed in open court’ and ‘the court can’t even consider this case because secret evidence might come up’. The former, fine. The latter, not so much. The latter is the issue.
Not allowing something in open court is standard procedure for classified information. Not allowing any judge to see it under any circumstances is different, and shouldn’t be allowed.
This puts us betwixt Scylla and Charybdis to a certain degree: the government has to be held accountable but it also has to keep secrets and protect our intelligence services. You can’t have the government using a get out of jail free card ad infinitum because that will inevitably lead to abuse. You also can’t have a Johnny Cochran calling FDR and Patton to the stand and demanding the recitation of the Manhattan Project in open court on behalf of nazis, though.
The whole idea that this is an issue where we have to make a sacrifice and find a middle ground is ridiculous. I’m going to assert that there is no good result that could possibly come from having secrecy being grounds for dismissal of a case.
I don’t even understand how this happens. Don’t the judges decide whether to dismiss? Don’t they have any self-respect?
I am going to go out on a limb and assert that kicking puppies is bad! No good result can come from it.
I don’t think anyone in this thread is advocating the government being able to unilaterally have a case dismissed on the grounds of secrecy. In fact, I stated that I DIDN’T think the government should get a get out of jail free card.
By “middle ground”, just off the cuff, I mean special courts to hear these cases as well as restrictions on what can be brought in as evidence. There has to be a solution that keeps government accountable as well as protects our ability to keep intelligence secrets.
