Grunion Moon (grunionmoon) wrote,
Grunion Moon

Obama continues Bush/Cheney's course on rendition victims?!?!?

I have a couple of long entries waiting in the background, one mostly-written, both fun in different ways, and also there are some I did in OD that I should crosspost to LJ... but something else interrupted me two evenings ago.

And it horrified me.

Because it's the fastest way to get into it, I am going to paste in an email I wrote to a friend about it to show the horror, so please excuse some eff-words.

It is on... a whole different scale.

Here is the email.

I want to strongly ask and encourage you to click on and read that link in the middle of the email before going on, because you need to see what this is about.
*sigh* This would fall under us being willing to criticize Obama as to criticize Bush - or under us caring whether the Obama Administration really is different from the Bush Administration - or some file folder along in that run of them...
Sarah, what the fuck is this?

(With the Bushies I got too used to stuff to ask "what the fuck is this?" with real astonished sincerity, because I had caught on. This or that senseless thing wasn't intended to 'make sense', 'really' ; it was intended to work.
With Obama I'm not there yet. Genuine: What the fuck is this?
On about three different levels. 1. Secrets that are already public knowledge and publically discussed in The New York Times and everywhere, and also overseas in foreign newspapers and foreign courts and so on, etc., etc., etc., might get leaked to the public and to the world if a court hears a case that references them. 2. The most apparent reason to continue that Bush Administration position - other than #1 making a lick of sense - is to protect an evil Bush-era program and practice that Obama has stated, flat out and facing the nation as President, that he rejects and will not continue. (...) Or to protect people from prosecution/lawsuits for it? 3. So these people, that we did THIS to, get no recourse to law, no redress, no anything, for this bullshit reason, according to the Obama Administration - and this is justified because of what?)
Not... happy.
Dare I hope it'll turn out that this was just a DOJ lawyer going ahead rogue? ... Plausibly??



These victims of extraordinary renditions, innocent people who were snatched and taken to different countries and tortured in Egypt and Syria and black sites in Afghanistan - cases so awful and impossible to put in a good or an okay light that I remember reading through the Talk page behind the Wikipedia page on "extraordinary rendition" and noticing the line that Bush super-defenders were falling back to about these cases - unable to find a level of "silly leftists, there's nothing wrong with this!" as usual, but unable psychologically to concede evil on Their Side, they were reduced to repeated manifestations of "this hasn't been on Fox News! All the sources are like Amnesty International and the Washington Post(!) and the Associated Press(!!) and the New York Times(!!!), every single one of them left-biased sources!, so therefore this article is biased and it's all fake!!!" ....

... and the Bush Administration blocking them in their suit by the single sleaziest reach that I can ever remember ranting and raving with Gwen about - saying that there can be no court proceedings at all on this matter because the crimes being referred to are a secret ....

... that business...

... and the Obama Administration - the Obama Administration - just picked up the same thing and are continuing the same thing.


I need to make sure everyone has a squint through the microscope on a couple of things here. Just so there are no misunderstandings.

First, everyone needs to understand what a SUPER-stretch this legal ploy was. Is.

The original "state secrets" rule, established by the U.S. Supreme Court in its decision in the case U.S. Government vs. Reynolds, means that, if a court case might require the revealing of classified information vital to the national security of the country, and so endanger our country, the government/military can say it's a state secret and the judge has to dismiss the entire case or never convene the case. (And, when the government does this, the government need not even let the judge look in the box at the secrets in question to see whether or not this is justified or necessary.)

This is a honking huge power for the government to have at its discretion. Two things about it:

1) Its abusability... which is illustrated, we now know, by the very case it was created in. Reynolds involved the following: A B-29 burst into flames and crashed. The families of three civilian crew members wanted to know why; they wanted a look at the Accident Report. The U.S. Air Force refused, saying that vital top-secret work that the men had been doing onboard the flight was on the Accident Report, and showing the families the Accident Report would endanger America during the Cold War. They took this to the Supreme Court, and the Supreme Court said that the military had to be thus trusted with absolute secrets. So, over the years since then, the families periodically asked, and over and over got the report with big sections redacted, paragraphs blacked out. ... So, almost fifty years later, in 2000, one of the widows made a Freedom of Information Act request and got a bunch of stuff that had now been declassified, including the Accident Report, finally with no redactions. There was nothing in the Accident Report about any special project or top secret experimental work on board the plane. What was in it - the text that had been blacked out all this time - was the information that, through negligence in multiple respects, that B-29 had been un-airworthy; for example, heat baffles were missing that would have prevented the plane from bursting into flames - and the names of the people who had been at fault. The Air Force, pleading keeping vital national defense secrets from the Soviets, had only been lying to cover its ass, the whole time, all the way up to the Supreme Court.

2) The fact - which will seem redundant, but you'll see why I repeat it in a minute - that its purpose is to safeguard secrets, keep U.S. government classified information from being revealed and blown.

Now, it should be said that there is an alternative for the government to using this huge peremptory power, and this alternative has been more frequently used than that power. When a particular piece of information crucial to a court case is a classified government secret, the government can simply give the information only to the judge alone, "in camera." So it enters the decision-making process back there, and the secret need not be blabbed in open court, and the case can proceed and conclude. That would also be true and an option here, in the event that there is still-concealed classified information that is in question or is crucially relevant.

Now what the Bush Administration did, in regard to the suit filed by these people who were abducted by the CIA and sent to Egypt and Syria and black sites in Afghanistan to be tortured, is ... either a step beyond, or totally different, I don't know which to say.

The DOJ asserted that, in this case and cases like it - even if the case could be brought just on the basis of this huge amount of information that is already publically known and not involving classified documents or etc. , the Reynolds dismissal of the case applied, and the DOJ asked for it, because - the ... crimes... in ....question... are... the ... state ... secret!

Again: everyone knows about this, in a lot of detail. National and foreign news, and I cannot forbear again mentioning foreign courts... this is not a hidden secret within the bowels of the government in danger of being observed by the wrong people if it is exposed.

This interpretation of the Reynolds power has shed the purpose and the focus of the Reynolds power - the need for the government to be able to keep secrets secret - while keeping the power to shut down trials it doesn't want!

This is as if the Supreme Court had given the government a giant snail with a building-sized, super-thick, ultra-opaque shell - having gone to a lot of trouble to find a snail with that sort of shell, which was the point - and now the DOJ has shown up in court with a huge, hungry-looking leopard slug on a leash. "And what have we here, counselor?" "Your honor, surely you remember Reynolds."

And the Obama Administration just said that they're continuing with this.


Now, I need to say something, in light of some either uninformed or desperate or excessively off-the-cuff statements that I've seen:

This is not about "state secrets" in the generic, the government having some secrets or being able to classify things. Or about government secrets being "bad". Or about the Obama Administration allegedly having betrayed its touted principles if it wants to keep some information classified, etc.

Of course the government "can have classified information." Or more to the point, regardless, that is not what this is about.

(It's like conflating the subject of war crimes, or discussion of a particular war crime, or war crimes proceedings, with people who think that all war and all wars are evil crimes.)


I also need to say something about another reassuring possibility - to say that the possibility is implausible... although emotionally I have to admit that I'm gasping to believe it, or to find something that will get me out of this picture, and I can understand why others would be.

A number of people have suggested the possibility that the reason that the DOJ did this in the courtroom in San Francisco is that the Obama Administration just wants to check everything before altering course.

The answer to that is that it would have been incredibly easy to say that, look, we just got in here, we're looking at everything, can we get a delay, a continuance? It would have been understandable to the judges and it would almost certainly have been granted.

They didn't do that. Instead, the DOJ lawyer positively asserted that this had been talked about among Administration high-ups and that this was indeed their strong position.

Marc Ambinder, who drew Greenwald's ire for referring to the situation as if it were about the Obama Administration generically choosing to have secrets as I described ("Obama certainly never promised Americans that he'd declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever"), subsequently interviewed some officials who asked not to be named and would not discuss the specific case but who said that, yes, the deal was that they were still responsibly reading things and needing to going over things.

I could grit my teeth on that assertion in itself, that they had to be careful to go over everything before making a change... On this case? In this matter of this Bush stretch of the state-secret privilege? Where the issue and the information in this case are already known and the case can at least substantially be brought just on that basis? Where any still-secret and still-important-to-keep-secret classified materials that might turn out to be involved could, as I said, be shown to the judge in camera instead of taking this route? In regard to these plaintiffs, who have had those horrible things done to them, in order to bar them from recourse? How much checking do you need to do to get some kind of a steering view here? ... And, never mind that: again, how much of this uncertainty about the materials, and what kind of uncertainty, would you need to have for you somehow not to have reason to prefer obtaining a delay for review purposes to visibly and confidently taking the Bush Administration's course, unless you like that course?

Do we dare ascribe this to a sort of stupidity, where the DOJ lawyers didn't want to ask for a pause, and decided to go ahead affirmatively with the same sort of state-secrets ploy to throw out a lawsuit that the Obama campaign web site had said was so bad, simply because they might sort of look gimpy and unprofessional if they asked for time?

If it were this kind of look-confident goof, then I would hope to see an immediate change as someone woke up and said, "you did what?". And it has now been three days.


When I think about it, I cannot even say that that this is isolated as far as I know. Because I have been hearing on NPR - and I did not know what to think about it at the time - about the Administration supposedly having come right up to the edge of threatening Britain with stopping sharing of intelligence to keep them from divulging secret information that a person had in fact been tortured. Which would be along the same lines.

Look, these people in the extraordinary-rendition lawsuit were abducted by our government and imprisoned and tortured by our government in black sites or by foreign governments at our government's behest with no checking and no accountability and no recompense and no acknowledgement at all. For months and years.

Now, note, up to now we have been wondering whether Obama would take a course of pursuing accountability for the torture regime, or would bypass that in favor of a sort of truth-and-reconciliation establish-what-happened approach, or would ignore it in favor of preferring to "move forward."

Surprise. This is in fact none of those things - it is continuing the work of the former Bush regime in trying to bury the evidence.

This is trying to prevent others from trying to seek accountability. So far from holding its own legal inquest, this is trying to stop a lawsuit by victims.

There is a breathtaking lack of concern for justice in taking this action and continuing this course. (Did someone else I read write that sentence, "breathtaking lack of concern for justice"? I don't know, but it's exactly true.)


I am still spinning ideas about why that I can't choose between.

It could be that Obama thinks that if he lays off this, Republicans will snap out of their partisan frame and work with him like adults on things like the stimulus. ... Which, I suspect, mean that this would be a bad thing done for a short-term reason that was a mistake: why need the Republicans, whose mellowly cooperative non-partisan impulses toward Obama have been on view with the stimulus business, why need they fear fighting him if, while his work-together impulses give them free opportunities, he is abstaining from rolling forward on things he'd be on the solid ground of truth about and he is conceding ground for its own sake?

And, regardless and much more important, it would generally mean that Obama, with his talk of "focusing on getting things right going forward", is totally missing the matter of things going right going forward after his Administration is over.

Really, even in principle, how do you make sure things don't happen again if there are no consequences? What would deter the right sort of politicians and officials from crossing the same lines again if they need not fear prosecution and ruin for it? If the precedent is that the next Administration will not punish them - or, now, will actually protect them and help with the obfuscation?

And wouldn't the latter actually put a Democrat-side stamp of endorsement on the Bush-Republican frame that there can be no American war crimes?

One of the biggest things there was to hope for from Obama was that the dark Bush world of evil things done and lied about and concealed with no accountability and a totally morally nihilistic "pragmatism" and no such thing as a U.S. war crime would be left behind and we would start to build the rule of law and international law and so on back up again.

Two days ago I read that piece, and "you could have knocked me over with a feather"... and I felt the dark clouds of the Bush Administration closing over me again, now!

This one isn't just my head exploding - this needs watching. It really, really needs watching. And more. Have you ever emailed the White House? In all the time I've railed and ranted about this and that, I do not think I have ever asked you to email the White House, to call the White House, to contact your newspapers to ask why there has been nothing about this (nothing in the Oregonian so far here), etc. But I'm asking you now. I'm gonna do all those things myself.

I'll give this link to Greenwald's blog in general, he's done two or three more pieces on this since that one.

And here you'll see Rachel Maddow picking the business up.

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