BREAKING: Obama Continues Bush Policy On State Secrets

Earlier this morning, Looseheadprop wrote about the case of Binyam Mohamed, the British subject tortured at the hands of the United States at Gitmo, including having his genitals carved selectively with a scalpel. The Mohamed case is of critical significance for a variety of reasons, not the least of which is the fact that there was an oral argument in the Ninth Circuit Court of Appeals in San Francisco this morning that was to provide a crucial test of the new Obama Administration’s willingness to continue the Bush policy of concealing torture, wiretapping and other crimes by the assertion of the state secrets privilege.

From an excellent article by Daphne Eviatar at the Washington Independent at the end of January:

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used whatʼs known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIAʼs so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as itʼs also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that
knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

Well, the news being reported out of Courtroom One in San Francisco is not good and indicates that the Obama Administration has continued the walk of the oppressive shoes of the Bush/Cheney regime and has formally continued the assertion of state secrets.

The best hope for transparency on torture cases, wiretapping cases, and a whole host of illegal Bush/Cheney conduct was for Obama to pull back on the previous policy of concealment via the assertion of state secrets. From the official press release of the ACLU, and their attorney Ben Wizner who argued the case this morning:

The Justice Department today repeated Bush administration claims of “state secrets” in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration intervened in the case, inappropriately asserting the “state secrets” privilege and claiming the case would undermine national security. Oral arguments were presented today in the American Civil Liberties Union’s appeal of the dismissal, and the Obama administration opted not to change the government position in the case, instead reasserting that the entire subject matter of the case is a state secret.

The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:

“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.”

The following can be attributed to Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs:

“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.”

In fairness, the Obama DOJ may view this as protecting information on rendition flights, not details of torture; however, the result is the same, and just as heinous. Meet the new boss, same as the old boss.

161 replies
    • selise says:

      what you said lhp.

      i’ve come to think that obama’s idea of bipartisanship is not ours – he probably sees his job as protecting the batshit crazy wing of the establishment from not just the DFHs, but non-elites everywhere.

      an aside, lhp: if that is the establishment’s prime directive, i’m so glad you didn’t sign.

      but maybe this is obama’s idea of bipartisanship: batshit crazy elites and the not so crazy elites in solidarity against the rest of us?

    • Leen says:

      Not surprised. Keeps us wondering what else these thugs did to detainees.

      Glad LHP picked up on that story

  1. emptywheel says:

    Note, too, taht the Obama Administration is basically protecting a big contractor, Boeing, who was–presumably–led to believe it would be protected for cooperating with the govt.

    So while this reflects more on their stance on rendition (Jeppesen brought these guys to be tortured, didn’t do the torture), it also suggests Obama is going to protect big corporations who cooperated in shredding the Constitution.

    • bmaz says:

      Hmmm, could this policy have application to other subjects we are interested in here, say, perchance, illegal wiretapping?

      I think it can. Shit. Fuck. Damn.

      • emptywheel says:

        What’s that? You say the wiretapping lawsuits are directed at corporations? Big ones, like AT&T and Verizon, not unlike Boeing?

        Now that you mention it there is a big parallel there.

    • frandor55 says:

      The divide between Obama’s campaign rhetoric and some actual actions as president are on display.

      Obama appears to be a corporatist in the Bill Clinton mode. He will talk with uplifting language about our present predicament, whether it be domestic policy or foreign, but his actions will have a strong deference to corporate wishes.

    • acquarius74 says:

      Just read a day or 2 ago that Boeing had been given another big contract. I’ll look for the link.

      Question: If guy A pays guy B to kill/torture guy C, isn’t guy A legally just as guilty of murder/torture as guy B?

      Bush/Cheney = guy A
      Morocco torture tools – guy B
      Mr. Mohammed = guy C

      Plainly, I’m not a lawyer.

  2. pmorlan says:

    Looks like we’re going to have to work that much harder to convince the Obama administration that business as usual just won’t cut it anymore. We want transparency and we damn sure want prosecutions of the Bush administration crimes.

  3. Professor Foland says:

    So I guess I can imagine a scenario in which, having taken office only a couple of weeks before, one might want to be a little bit careful before upsetting so consequential an apple cart as state secrets privilege. But I don’t actually have any hope that’s operating here…if that were the case, I think one would ask for an extension from the judge, or at the very least, broadcast loudly that this was undergoing review but there hadn’t been time to work through the consequences. I’m not hearing any of that.

  4. Hugh says:

    For me, this all goes back to Obama being a representative of the Establishment. This Establishment did not fundamentally disagree with Bush but thought he went too far and executed his policies poorly.

    Obama is left to deal with the toxic legacy of the Bush Administration but rendition itself began under Clinton. So we see this curious positioning of Obama. He may not like what Bush did with rendition but he isn’t going to abandon the concept. Similarly and following from it, he may disagree with Bush’s use of the state secret’s defense but this won’t keep him from invoking it himself.

    • Hugh says:

      And since it seems appropriate I will repeat again the following:

      BILL MOYERS: Do you expect either John McCain or Barack Obama to rein in the “imperial presidency?”

      ANDREW BACEVICH: No. I mean, people run for the presidency in order to become imperial presidents. The people who are advising these candidates, the people who aspire to be the next national security advisor, the next secretary of defense, these are people who yearn to exercise those kind of great powers.…..ript1.html

      • eCAHNomics says:

        Nice quote.

        I was waiting for opportunity to make the same point. Only extreme egomaniacs run for prez. There’s no way any of them would give up any power for any reason.

        And given the background that Obama came from (i.e., not privileged), I’d guess that he has more than the full complement of prez ego. Had to, to make it.

        • selise says:

          george washington did. nelson mandela did. maybe some others?

          or is that just mythology and not history? sometimes i have difficulty telling the two apart.

          • eCAHNomics says:

            I think we’d recognize if we had a Washington or Mandela. Heck, Obama started his legacy project right from the getgo, swearing in on the Lincoln bible. Did not strike me as a sign of a strong leader.

            • selise says:

              oh i don’t think obama is one of them. my point was only that they do exist and not everyone who aspires to lead is unwilling to ever act for the greater good and give up power. exceedingly rare however

              • eCAHNomics says:

                I knew you meant it was rare. I was just pointing out that we would recognize such a leader if we saw him/her. And there aren’t any around, not in congress, not anywhere that we can see now.

                • selise says:

                  kucinich did it once in cleveland when he was mayor. don’t know what lesson he learned from it though – might have been to not go that far again. or maybe that’s who he is and if push came to shove he’d do it again.

                  • eCAHNomics says:

                    Kucinich is one the flakey side. Dept of Peace, indeed. (Um, it’s called the State Dept.) Not leadership material, though I like his stands on many issues.

                    • selise says:

                      kucinich’s proposal for a dept of peace is nothing like the state dept. completely different altogether.

                      now, if you’d mention the ufo thing, that would be different. but really don’t see it as any stranger than most religious dogma (not offense meant to believers – either in ufos or any religious/spiritual beliefs)

            • sunshine says:

              I am regretting my vote already. BO turned redcoat on FISA and now this.

              Would Lincoln torture? Guess BO is no Lincoln.

              • eCAHNomics says:

                As for your vote, you had no choice, so no regrets.

                But it has certainly turned out worse than the worst that some of us thought.

              • selise says:

                you did what you thought was right at the time and with the info you had available. fwiw, i didn’t vote for obama, but it wasn’t an easy decision and i don’t think you were wrong to. these things don’t have a ‘right” answer like 2+2=?

                • JThomason says:

                  Well who would have thought that all the chest beating about the Nader factor would be meaningless with a candidate moving to the right to assure his victory. Looks like you had it right.

  5. FreedomNow says:

    The Executive Branch MUST maintain Official Secrets. It protects diplomatic and national security interests. The Bamster is finding out that President Bush had some darn good reasons to do what he had to do fighting the Global War on Terrorists.

    • PJEvans says:

      Bull. Sh*t.
      It’s protecting the guys who shredded the Constitution.
      It does zero to protect us – or hadn’t you noticed that they’re spying on everyone?

    • texasaggie says:

      Not all “Official Secrets” are equal. There are those that protect the country and then there are those that protect a government perpetrator from the results of his own misdeeds. The former need to be kept. The latter need to be exposed. I strongly believe that Bush & Co. were masters of the latter. I strongly hope that Obama’s administration will expose them.

  6. AlbertFall says:

    This may be a timing issue.

    No Bright Shiny Object to distract MSM, no fainting spells by GOP while stimulus is on the table.

    I do not expect the USG to walk and chew gum at the same time, unfortunately.

  7. phred says:

    Oh I am certain this is as much about protecting Boeing’s/Jeppesen’s assets as anything else. Just like FAA was all about protecting the inalienable right of AT&T to profit on our ignorance.

    Obama. Is. Despicable.

    He said it himself, if he can’t deliver on turning things around he’ll be a one term President. I can’t wait to help him right back out of office.

  8. phred says:

    Speaking of Boeing — anyone looked at their campaign contributions? Just curious what the current equivalent of 30 pieces of silver is in US $ these days…

  9. perris says:

    you know what”

    I wouldn’t give a flying turd if the republicans took this open door to impeach obama

    I am not kidding either

  10. kirk murphy says:

    Same ol’ Empire: same ‘ol rules.

    Oh, well. Rome’s first Emperor of African ancestry didn’t restore their Republic, either. Wonder who will be our Caracalla?

    (and I wonder if Geta was counting on bipartisanship….)

  11. RonD says:

    Afternoon all-
    I think this is a timing issue. Obama is trying to avoid starting too many fights at one time, in order to not dissipate political capital. He doesn’t want to lose the stimulus, etc., as part of an all-issues war. It sucks, but change will be incremental. I think there is a good chance this issue will be revisited.
    The tools of power are the same no matter who wields them.

    • Praedor says:

      Oh for…PLEASE stop defending his misdeeds.

      To be hyperbolic, it really reminds me of the Germans defending Hitler: “Oh, Hitler doesn’t know about X. If he knew about X, he would stop it.”

      No. He knew about X and he approved X (or didn’t give a flying fuck about X).

      This is exactly what Obama intends. He wants to do the bare minimum necessary to present himself as different from Bush. But is IS only an appearance and a small matter of degree.

      There is ZERO “national security” interest in protecting torturers from being identified and prosecuted AS PER US LAW AND OBLIGATIONS UNDER TWO TREATIES (which are the “supreme law of the land” as per the Constitution).

      Obama is a war criminal with this VERY visible acquiescence to hiding felonious torture IN OUR NAME. Guilty, guilty, guilty.

    • sunshine says:

      Now that this kind of torture is out, this would be the exact day to condemn torturing. This day would be the perfect timing, IMO.

      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.…..ators.html

  12. yellowsnapdragon says:

    There have been a number of comments here and on other (big orange) blogs pleading for the leftie criticisms of Obama to stop. Will this decision finally, finally get the attention of the Obama pollyannas? Are we allowed to criticize yet?

    • selise says:

      Are we allowed to criticize yet?

      i’m sure you’ve already noticed, but sometimes i kinda suck at following rules that make no sense to me.

    • macaquerman says:

      You’re damn right it’s time. How long should it take to find and read throuh the documents of the last half-dozen years, talk to the thousands of people involved, and decide on what the hell to do?
      He’s had three weeks already!
      Why not go with -28- and start impeahment proceedings.

      • eCAHNomics says:

        Um, how long does it take to ask for a postponement, or whatever that is called in legalese? Think they might have had a good excuse, but Obama did not take that choice.

        • macaquerman says:

          I think they tried that somwhere else and got shot down by the judge.
          I think this stinks, also but I think that the problems inherent in taking over an enterprise the size of the government, particularly when Bush felt shit and blood all over the walls, might be a tad tough.
          Any and every flaming thing is going to be treated as if it’s the only item on the plate, even before he’s got his cooks in the kitchen.
          Any of you guys ever start a newjob and have it nailed in a month?

          • phred says:

            Given the opportunity, I would press for full disclosure of torture and its perpetrators in a day. I wouldn’t need to contemplate it for a nanosecond. Obama has made himself complicit in the torture cover-up. Stop pretending it’s because he hasn’t had the time or the brains to figure it out. The man ran for office for two years — you think this never came up?

      • yellowsnapdragon says:

        OK, you’re right. We should all hold our tongues and stop complaining until Obama has had what 3, 3 1/2 years in office? That would be a good time to mention that the stimulus package sux. Oh, and that decision about state secrets back in ‘09 wasn’t too great either.

        I’m glad you set me straight.

        • macaquerman says:

          Yeah, that’s what I said , 3 years.
          No, complain away. I don’t think this a good sign at all. But act like Obama’s living in the real world.

          • yellowsnapdragon says:

            I don’t think this a good sign at all.

            There we go. Was that so difficult? Is the earth still spinning after uttering such anti-O vitriol?

            • macaquerman says:

              Not hard at all. You might have noticed that I have little trouble offering criticism. I just expect that the criticism, and expectation, should be tempered by our experience in the world.
              No one should expect that Obama is going to usher in rule of the righteous, or expect that he, even with good intent, can flush out all the shit immediately and somehow actually have a functioning executive.

              • phred says:

                No one should expect

                Just because you suffer from disturbingly low expectations, does not mean the rest of us have to follow suit.

                • macaquerman says:

                  Absolutely agree that you needn’t have expections in accordance with mine.
                  I would hope that your higher expectations are met and hope that my lower one don’t disturb you too much.

                  • phred says:

                    There is nothing that disturbs me more than apologizing for torture (well, after the active participation in procuring it and conducting it).

                    • macaquerman says:

                      Glad that you didn’t get the idea that I was standing anywhere near that pile. My expectations are low only in regard to how we can effectively hope to restore our virginity without a thorough exam coming before the operation.

  13. chetnolian says:

    I think this is even more interconnected. If you had read the British High Court judgement, instead of reading rightwing British rags like the Telegraph, you would have picked up that the information being concealed in the UK probably at least partly concerns rendition to Morocco.

    This is the same information.

    So, having confirmed Bellinger’s threat to the Brits, probably without really thinking what they were doing, they are kind of stuck with not releasing it themselves. To do so would rather be to poke a sharp stick into Milliband’s eye. Now I don’t really think Obama cares a lot about Britain, and given his family history why would he, but I don’t think he quite wants to create a major diplomatic incident with us.

    I would guess a lot of clever Government lawyers are rushing around trying to work out what to do now.

    • emptywheel says:

      It’s an interesting point, but isn’t the point of the suit entirely different, since the target of the suit is different?

      The Jeppesen info is probably details about when and where. The UK stuff is details about razors to his penis and whatnot.

      I agree that there needs to be consistency, though.

      Also, I worry a lot about whether and which govt lawyers are running around at this point. We’ve got Holder–and no one else–at DOJ–they’re all stuck in SJC. We dont’ have Jeh Johnson at DOD, who would be really aggressive on opposing torture–he’s waiting for a full Senate vote.

      So from Obama’s team, we’re stuck with two of the apologists, Holder and (worse) Greg Craig at WHCO. And otherwise, a combination of civil servants and dead-enders.

      I really want Obama’s better lawyers (Johnsen and Johnson, above all) in there, playing a part of these discussions.

      • chetnolian says:

        I don’t think so. Some is about the torture, some is how he got to be in Morocco. There is no chance atall that some, but not all, of the subject paragraphs will now bw released. So the torture bit would come with the rendition bit.

      • bmaz says:

        I really want Obama’s better lawyers (Johnsen and Johnson, above all) in there, playing a part of these discussions.

        Agreed. But it is disturbing that they are not working a lot harder and faster to get them confirmed. And they are not.

      • skdadl says:

        That distinction is calming, to me at least. All the same, I agree with chetnolian that the Telegraph report is predictably Tory-tilted (as is that statement from David Davis), and the High Court judgement (link at Rose’s Vanity Fair article) is referring to more than the scalpel treatment (as if that weren’t enough).

          • skdadl says:

            I only just found it on Sunday (I think — what day is it today?). Anyway, sorry for not inserting teh Rose/Vanity Fair link — scroll down a bit and look to the right, and you’ll see the link to the pdf of the High Court judgement.

            It is fascinating to read. If you don’t have time for the whole thing, read paras 73-77.

  14. RonD says:

    Are we allowed to criticize yet?

    Yes. Loud, long, and continuously. It’s the only way to push the Overton Window to the left.

    FDR-“I agree with you-now go out and make me do it.”

    • sunshine says:

      I love that quote. It tells us to take action. We have to work for what we want. Write, sign petitions, donate, protest, etc.

      FDR-“I agree with you-now go out and make me do it.”

    • bobschacht says:

      Are we allowed to criticize yet?

      Yes. Loud, long, and continuously. It’s the only way to push the Overton Window to the left.

      FDR-“I agree with you-now go out and make me do it.”

      THANK YOU for reminding us of the Overton Window. I have a hard time remembering the “Overton” part of the phrase.

      I think one of the tactics (I’d say strategies, if I thought Bush was capable of strategic thinking) of the Bush (mal-)administration was to front-load all kinds of crap onto Obama’s lap– so many things that even if he were the best president **evah**, he wouldn’t be able to deal with them all, and some of the left-over crappola would undermine his presidency and lay the groundwork for a Republican come-back.

      We frequently have fainting spells here as we think about Obama’s tactics on whatever sh*t the day brings. We have the luxury of picking them apart one at a time. He has to deal with them all at once.

      I don’t like the preliminary signs here any more than anyone else. What I am sure of, however, is that most of the things we want Obama to do won’t get done without our pushing. He needs to know– regularly, frequently, passionately– that we do care about these things. We cannot give up. It’s not that he isn’t willing to. But he has to see where it fits into his strategic planning.

      Our biggest problem is going to be acedia (Yeah, look it up. There’s a new book about it that seems tangential, but isn’t.) We’ve got to keep pushing the Overton Window until it gets where it needs to be.

      Bob in HI

  15. Praedor says:

    Obama is now, officially, a war criminal and needs to be hauled before the Hague alongside Bush, Cheney, and Rumsfeld.

    He’s also backsliding on getting out of Iraq. He’s obeying Petraeus’s orders.

    It looks like it will have to be the British public to bring not only their government, but also the Obama and Bush Torture Regimes to justice too.

  16. sunshine says:

    This is the reason I donated money to ACLU. When and where do we walk? I was angry about the torture pics from before but this torture I read about today is just unthinkable.

    BO has to make some decissions to make. He can’t make us and the corps happy at the same time. Bush was constant about “I campaigned on this issue” and he did follow through as best he could. Will Obama?

  17. Binx101 says:

    I’m almost speechless at the lack of depth I’m reading here and the extreme actions so many are expecting instantly. Certainly, there is a wish list – but there has to be some collective understanding as to the procedural paradigm. If there is some consensus operating here that Justice Department is going to deliver immediate gratification for even the least serious offenses or misdeeds by our government – then it’s clear that reasoned discourse and examination are out around here – and that we’ll just sound byte our way through the facts. This is an asinine approach.

    The Almost Daily Binx

    • Praedor says:

      No, THIS is easy. No torture. No hiding of past torture by criminals in government. FULL disclosure of past crimes against humanity.

      There is ZERO legitimacy to hiding torture flights and torture.

      This is the Executive pulling yet another Nixon.

    • bmaz says:

      Hey binxie, you think carving up a man’s ball with a scalpel is “the least serious offenses or misdeeds by our government”??

      What kind of heinous human being are you?

  18. applepie says:

    What a disappointment. My foreign friends shook their heads and grimaced when I told them I voted for Obama. They were convinced that he would continue to do whatever it takes to prop up the criminal globalism of capitalism…including, apparently, rendition and torture. It now seems increasingly likely that the same ones who would destroy the planet with bush have infected Obama as well.

    I always thought we would have to fight to defend him against right-wing attacks, and I still will try to…at least for a few more weeks. But it seems that that defense will become increasingly absurd if he continues the same heartless and thoughtless policies of the past.

    Or is this passive-aggressive behavior telling of a deeper fight within the admin that we are not aware of?

    • Praedor says:

      Happily, Obama is going to fail in propping up the criminal empire that is the US. NOTHING he and his economic “advisors” can stop the big boom. The ENTIRE edifice is coming down. Honestly. The liabilities held by the handful of big banks that he and his idiot “advisors” are trying so desperately to save are 10s of times larger than ALL THE MONEY ON PLANET EARTH.

      The TARP nonsense and all the latest attempts CANNOT prop up the system. There is not enough money, combined from all nations, to cover the liabilities. The military is going to collapse as the backing for it blows away in the winds of the ongoing, and building, economic tsunami.

      Obama is simply the last emperor of the US. He will preside, while desperately flailing and trying to put a happy face (called “bipartisanship”) on the collapse.

      • applepie says:

        This was the same conclusion my friends came up with. And I agree that nothing can save such an unsustainable system as the one that has been created.

        So, is the correct response from Obama to ‘bunker down’ like bush did? Or, is there another solution? Or none?

    • sunshine says:

      I think BO the torch was passed the day BO was sworn in. It went from telling us, the voters, what we wanted to hear to now doing what the wealthy, corps and new magnets want. That is who is trashing and fighting with him now, not the far right.

  19. drational says:

    Come on people. It’s been 3 weeks. Obama is not the same as Bush/Cheney.
    If there is such a thing as a real ”state secret” (which fwiw I believe there is) then I can be patient and see how the new administration is going to deal with prior crimes.

  20. SaltinWound says:

    I wish I were surprised. Obama parses words a lot when dealing with these issues that are very important to a lot of us. If he were clearly in our corner, we wouldn’t have to work so hard in interpreting his statements.

  21. Blub says:

    I don’t see what the big deal is here. We’re concerned, we’re speaking up about what we’re concerned about. This is exactly what we should be doing. We don’t know whether Obama plans any misdeeds (I like to think that he doesn’t) and neither do you, but we need to say “this is what we want you to do, Mr. President” and “This is what we need to change, Mr. President” and “Mr. President, we disagree with what you’ve done or not done so far in terms of setting policy or repudiating past policy.”

    There is a far cry between this and preemptively accusing someone of being a war criminal. How does someone possibly merit an accusation of being a war criminal with only 2 weeks in office? Come on, let’s get real.

    • Praedor says:

      But it IS a misdeed to cover up the crimes of his predecessor and his minions, most of which are still in their jobs under Obama.

      You CANNOT cover the crimes of others without yourself being a criminal as a result.

      • Blub says:

        actually, that is not precisely true, under with customary international law, the Geneva protocols, the Convention Against Torture, and the CCPR. Both are potentially crimes, but there is a still a fundamental difference between the one who carries out a war crime/crime against humanity personally or suffers it to be carried out (by ordering it or being directly in the chain of command) and the one who fails to punish or helps conceal war crimes which happened in the past. If you’re right, than the governments of Japan, Spain, Turkey, China, the UK (in re Ireland) and a bunch of other countries would be criminally culpable for past acts that they haven’t really owned up to (Japan still censors text books and historical records on its role in WW2 atrocities, for example). Fortunately, you’re not right.

  22. Mary says:

    Um, any votes for “his guys just aren’t in place?”

    62 – they’ve said. No investigations of CIA torture and no charges. Immunity for telecoms. Presidential torturers and Presidential illegal snoops are above the law. Have a nice day.

  23. chetnolian says:

    To explain further my point at 68, the only part of the redacted paragraphs I think could be vaguely operationally sensitive is something on rendition.

    • bmaz says:

      To explain further my point at 68, the only part of the redacted paragraphs I think could be vaguely operationally sensitive is something on rendition.

      Yep; but the ironic part of that is that the facts of the rendition flights and program are really fairly well known and documented. So it really boils down to a coverup of the illegal torture; the once and future wrong.

      • chetnolian says:

        Oh I do agree, I’m just trying to find a credible expanation for why they are royally screwing this up. They (US and UK Govts.) look fairly stupid on this. The substance of all the inforamtion, both on rendition and on the torture, is fairly welll public. I certainly feel I know about as much on the scalpel issue as my sensitive soul needs or can take.

  24. chetnolian says:

    Totally, totally OT, but BMAZ, did you see Teddy Mayer, the American who was one of the founders of the BRITISH F1 McLaren Racing Team, has just died?

  25. RonD says:

    Obama is simply the last emperor of the US. He will preside, while desperately flailing and trying to put a happy face (called “bipartisanship”) on the collapse.

    I have long thought that a truly “responsible” imperial president would be putting together a “soft landing” plan for the Empire, to try and cushion the crash of the inevitable collapse.

    • DWBartoo says:

      According to the ‘experts’, complex societies do not collapse, so long as the hierarchical ’structure’ remains.

      Thus, the unfortunate sinking of the Titanic, while unpleasant, momentarily, for some, did not represent failure, but rather, success.

      As the American ship of state sails into cold and unfriendly waters, let us rejoice in the knowledge that the first class passengers will always be safe, and in charge of the situation.

      Those in steerage are to be remembered for being willing to give their all for the cause … (unless their credit card debt is excessive, in which case, EVERYTHING is their fault).

  26. beguiner says:

    Am I the only one to notice the “scalpel” on “genital” bit in the original post? This is horrifying new to me.

    Something inside of me broke when I realized that this is what is being done by my government in my name.

  27. RonD says:

    You CANNOT cover the crimes of others without yourself being a criminal as a result.

    Neither can one shovel out a tank of sh*t without getting some on you, and I’m afraid that’s the position Obama is in. Getting clean is going to take awhile. Therefore, we must all scrub harder.

  28. Mary says:

    3 – Boeing, which scooped up Judge Luttig (who has previously kept Padilla disappeared in the military brig with no habeas and despite the fact that the allegations that put him there emanated from the torture of Jeppeson “passengers”)

    The problem with this case (for the torture victim and for this nation’s morality) is that it touches too many, too powerful, too embarassing, too criminal

    Padilla’s original warrant (bringing in Mukasey, Clement, Comey, Ashcroft et al and Bush’s direct orders).
    Pakistan’s relationship with selling the US detainees and torturing them for the US (Mohamed was tortured in Pakistan, while the US was cutting the check, by people who couldn’t even speak his language to interrogate him)

    Either the involvedment of the FBI in the Pakistan torture and the shipment to Morocco (in which case it is hard to believe Mueller wasn’t briefed) or the invovlement of CIA officers impersonating FBI agents (which has also been alleged by FBI sources in other cases).

    Morocco’s and Pakistan’s relationships with the US as torture proxies.

    The torture issues of Bagram.

    The “scoop” on the bucket swinging to create nuclear fission plot and the degree to which the CIA and Bush admin bought into that.

    Material witness affidavits by the FBI in federal courts affirmatively using torture and allowed in the courts.

    The knowledge of the DOJ when Clement made his reps on torture to the Sup Ct and when Comey held his Padilla presser (where he emphasized that Zubaydah’s statements were corroborated, but left off the “by torture” part)

    The knowledge of DOJ of pictures of the torture and either the destruction of that evidence of the failure to produce such evidence to various courts ordering production of torture info or at least preservation.

    There aren’t too many big players whose names don’t get a mention in this case.

    • RonD says:

      the bucket swinging to create nuclear fission plot and the degree to which the CIA and Bush admin bought into that.

      Wow, I haven’t heard that

    • jdmckay says:

      The “scoop” on the bucket swinging to create nuclear fission plot and the degree to which the CIA and Bush admin bought into that.

      what are you referring to here?

  29. Mary says:

    49 – they have had time to feel that they could have Panetta issue a “no invesigation of or charges against CIA persons involved in *enhanced interrogations* – and that’s official” statement, though. To thank the UK for covering up torture. To not ask for extensions in proceedings such as this one so they could make a determination. To decide that telecoms should have immunity after all. Etc.

    They can’t have it both ways – that they need time to review, but that they can also certify to the intel committee that no one will be charged; Holder can certify that there’s no way to find mens rea if there’s an olc opinion; and they don’t need extensions in al-Harramain or Jeppeson bc they are good to go with continuing the Bush policies.

    • macaquerman says:

      I would find it a damn sight easier to argue with you if you would just stop your annoying habit of being right.

  30. placton says:

    we must all support this stuff, because we need to keep our powder dry – and really, Obama is different – we just have to give him more time – blah blah blah

    Greenwald sez:
    “I just spoke with Wizner about today’s hearing. It’s really remarkable what happened. One of the judges on the panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in the administration had any bearing on the Government’s position. Letter emphatically said it did not. He told the court that the new administration — the new DOJ — had reviewed and vetted this case and the Bush positions and decisively opted to embrace the same position”…..ate… /

    here’s smores:…..ate… /

    But no doubt there is some secret strategy – yeah right!
    Best, Placton

  31. Mary says:

    93 – apparently the whole Padilla dirty bomb plot stems from the fact that “interrogation” of Mohamed elicited the fact that he had visited a web site on making a nuclear weapon – and the story goes:…..ture200812

    By late April, Abu Zubaydah was being tortured and giving up details of a plot that sounded truly terrifying: a plan for Padilla to build and detonate a radioactive dirty bomb in America. But even at the outset, some who worked in U.S. counterterrorism were skeptical.

    Convinced that the dirty-bomb plot was real, those interrogating Binyam Mohamed assumed that he must be part of it, and if he could not fill in missing details, he must have been covering up.

    M.I.5 seems to have shared the C.I.A.’s groupthink. Sources in London say that its agents also assumed that anything Mohamed said to try to defend himself must be a lie. One admission he did make was that he had seen a Web site with instructions on how to make a hydrogen bomb, but he was apparently claiming it was a joke. The intelligence agencies believed this was a smoking gun, notwithstanding Mohamed’s bizarre statement that the instructions included mixing bleach with uranium-238 in a bucket and rotating it around one’s head for 45 minutes. Neither the British nor the Americans thought Mohamed’s claim that the Web site was a joke was credible: his “confession” to reading instructions about building nuclear weapons on the Internet was cited in Mohamed’s Guantánamo charge sheet. Yet it was a joke: such a Web site, with instructions about how to refine bomb-grade uranium with bleach and a bucket, has been doing the rounds on the World Wide Web since at least 1994. In 2005, the conservative columnist Michelle Malkin cited it in her blog as evidence of al-Qaeda’s deadly intentions. She was swiftly disabused by readers, who, unlike the C.I.A. and M.I.5, immediately recognized it as satire.

  32. Mary says:

    96 – keep in mind that state secrets is also deemed appropriate for protection of diplomatic relations. What happens to US and UK relationships with Morocco if they release info on the Moroccan genital slicing?

    • Blub says:

      there could also be other complexities. What happens if the US interrogator ordered the Moroccan interrogator to do the slicing and pressured him into complying, and the Brits witnessed the action (or any other imagineable combination here)? Yes, the Moroccan is culpable and ought to be punished, but there would obvious diplomatic issues involved in disclosing the precise circumstances of the torture… disclosure which could destabilize Morocco, for example. Like it or not, secrecy is the currency of diplomacy and military intelligence. It has always been the case and will continue to be the case under Obama.

      What we should be demanding (and the only thing we really can demand) is that American personnel responsible for crimes against humanity identified and held to account for their actions.

      • bmaz says:

        Well, no, that is wrong. What we can do is demand that any and all perpetrators of war crimes be exposed and brought to justice. Your argument that “for diplomatic currency” we should shine it all on is curious and somewhat revolting.

        • Blub says:

          I think you either misread what I wrote or I failed to commnunicate properly what I was trying to argue. I was saying what will likely happen and what we can likely get away with demanding with a reasonable expectation of sucess, as opposed to what I would personally like to see happen. To think that we’ll succeed in ending the use of secrecy and mistreatment in military intelligence services around the world would be grossly optimistic. Punishing our own people (and asking others to do the same) is a more reasonable expectation. Furthermore, mistreatment and torture should never be legitimized like it was under shrub, and those who sought to legitimize it (as well as those who practiced it) must be hunted down and punished. But understand that spies and soldiers will continue to mistreat prisoners and use torture (illegally) no matter what we choose to do. What we need to do is reestablish the idea that such behavior is illegal.

    • DWBartoo says:

      If the ‘endless’ WOT continues as advertised, Morocco might become the equivalent of Disneyland, with thrilling ‘rides’ and exciting ‘adventures’, why it is even possible that they will see a huge increase in ‘business’ and become a ‘must see’ for the ‘World Tour’ crowd.

      (There are even rumors that some folks like to watch such stuff, gets their jollies off, as it were.)

      Betcha some of our recent ‘Higher-Ups’ might wanna visit, just for old ‘times’ sake.

      If our principle ‘export’ is to be bombs, then Morocco could become one of our favored ’service’ providers, when other, less extreme ‘measures’ are called for. (heh, heh, heh …)

      With ole Unca Sugar as their best bud, the Moroccans have little to fear.

    • Praedor says:

      It is best to sever all diplomatic ties to any country that practices torture anyway. I would think that those who slice genitals would be an easy sell to drop-kick.

  33. Mary says:

    You know, there is currently in effect an Executive Order that requires that information of crimes not be classified. Obama needs to fess up that he believes in pixie dust too.

    • phred says:

      I was wondering about that. I remember long ago at TNH a conversation we had about the use of classification to cover up criminal behavior. So, if Obama chooses to continue down the path of hiding criminal conduct behind classification, does that make him an accomplice? co-conspirator? Is there some violation of statute he becomes a party to, even though he didn’t initiate the cover-up?

    • DWBartoo says:

      The ritual goes like this: “I believe … I believe …”

      But one must also clap in rhythm …

      Otherwise Tinkerbell will cease to exist … and pixie dust will vanish from the earth.

  34. Mary says:

    113/116 – I don’t believe there is any reason to invoke state secrets where government crimes are at issue – period. I just toss out the Morocco aspect of one where they can try to fight Pilate over the fingerbowl and claim that they aren’t covering up for their own torture roles, but “merely” trying to protect a diplomatic tie.

    It doesn’t fly, but I’m thinking they’ve tried it out.

    It’s like the invocations in the Arar case, where maybe they didn’t want to reveal the “methods” by which the 15 yo at GITMO was “enabled” to implicate Arar. Not defensible, still criminal and crimes, just another dance on the card.

    • macaquerman says:

      For the hell of it, when the complicity in illegality was as widespread as this was, is there a point at which you’re willing to stop sweeping the stable for fear of lacking anything to ride?

  35. pmorlan says:

    This decision to continue using the “state secrets” privilege deserves a round of phone calls to the WH.

    Phone Numbers

    Comments: 202-456-1111
    Switchboard: 202-456-1414
    FAX: 202-456-2461


    Comments: 202-456-6213
    Visitors Office: 202-456-2121

  36. Mary says:

    62 – “Come on people. It’s been 3 weeks.”

    Um, no. Obama has been in politics for much longer and was in the US Senate for several years. He’s been running his campaign for 2 years. These aren’t “new” or “suddenly discovered” issues. They are at the heart of what has been out there for years – at the heart of why people wanted to be rid of Bush and vote for “Change”

    He has known these issues were on the table for years and has had policy advisors to work with him on them for years.

    • DWBartoo says:

      Not only do I likes the way you think, I, natcherly, agrees with you.

      If this is all ‘new’ to Obama, then we is truly in what ole Poppy Bu$h done called “deep doo-doo” …

    • skdadl says:


      And @ 120, that was the interrogation of Omar Khadr, and the interrogator was an FBI agent — FBI special agent Robert Fuller. The DoD got his testimony in at the last tribunal hearing in Khadr’s case on 19 January — just in time to smear Arar one last time in the international press.

      Luckily, Arar is in the clear, as we’ve all known for some time, and CSIS have certified that. The RCMP had Arar under surveillance at the time Khadr is supposed to have seen him in Afghanistan.

      • stryder says:

        He might get off on a technicality but he’s going to have to grow wings and fly to get away from Mary

    • bmaz says:

      Not to mention that Obama actively campaigned on the premise that he knew and understood these issues, as well as the illusion that he would be handling all this differently.

      for all those saying “we need to give him time”; tell me, just when the hell IS the right time to denounce torture and the concealing of programs to torture? Get. Real.

    • jdmckay says:

      157: ok, I saw your response. I think that’s a bit different than your wording though.

      62 – “Come on people. It’s been 3 weeks.”

      (…)These aren’t “new” or “suddenly discovered” issues. They are at the heart of what has been out there for years – at the heart of why people wanted to be rid of Bush and vote for “Change”

      He has known these issues were on the table for years and has had policy advisors to work with him on them for years.

      That’s sure how I see it… fully agree.

      Same judgment applies to his wish-washy stimulus/recovery proposals as well.

      I watched his entire presser, would have been mildly encouraged if I was not aware of underlying realities which he (sort’a kind’a) addressed. He used a lot of words to generalize w/out meaningful specifics (IMO) on most critical subjects.

      His statement in response to Sam Stein suggests concerns all of stated here (and elsewhere) over torture/secrets/prosecutions are well founded.

      Putting his clout behind “stimulus” package… invoking all the economists who say something must be done, ok fine. But his speficics on that one as well… I didn’t hear ‘em. And his comparison of current econ crisis to 90’s Japan: poor analogy, and inaccurately described. Meaningless AFAIC.

      Oh well…

  37. Mary says:

    123 – no. Did you come up with that example bc I do have a barn full of horses, though?

    It’s a very hard hit to not be able to ride, but if you send someone out on a lame nag who falls and the rider breaks their neck, they’ll wish you hadn’t had anything left in the stable for them.

    You do have a huge problem with the scope. From a moral standpoint, I don’t think there is a person left at DOJ who shouldn’t be swept out, but from a more pragmatic point, yes, even a legalistic and less sweeping sweep is like a round of strangles hitting the barn. But if you believe in the rule of law, you dig in and address it as you should via the rule of law – some smaller players will get offered deals, the government itself will have to acknowlege that Yes, America DID torture, etc. and it won’t be easy or pretty – like treating strangles it will be full of putrid pus and misery. But not treating is worse.

  38. Mary says:

    Breaking news:

    CIA Operative Accused of Rape
    : It Was An Authorized Interrogation Technique

    Holder and Panetta have pledged to insure that there is no prosecution, as OLC opinion authorizing rape, saying: “as long as it’s some Muslim that you can claim is an Illegal Enemy Combatant (failure to wear camoflage undies counts as proof), go for it puppy.”

    Obama has reiterated his earlier disinclination to look back and says, hey – not to worry, I won’t be having Muslim women raped in the future, but really, golly, how was this poor guy supposed to know better – he had an OLC opinion after all.


    Or not.

  39. Mary says:

    127 -in countries that don’t have a Democratic party, I think they go ahead and outright call their rhythmic clapping for what it is – flagellation.

    • DWBartoo says:

      Could we direct our guests to the euphemism, please?

      Deary me, it appears that Obama is trying to whip up some enthusiasm for more ‘adventures’.

      How many more seasons of Jack Bauer may we expect?

      Several trollish types have, apparently seriously, suggested that we should just go to war with everybody, since nobody likes us and, according to Cheney, America needs to be ‘respected’ (which I take to mean ‘feared’) rather than loved.

      I wonder how the rest of the world, which, we were told, rejoiced at Obama’s ‘win’, look upon recent ‘developments’?

      • phred says:

        I wonder how fond of war the trolls will be when we run out of funds to buy the high tech toys from the military-industrial complex that is all too happy to sell their wares elsewhere… I bet a clusterbomb looks a whole lot different when you are standing under it, than when you are buying it.

  40. Mary says:

    136 – 12. Many of whom are not all that safe to ride. Although the blind in one eye pony is coveted by all my friends and will never want for a place to live.

  41. Mary says:

    132 – it boggles the mind, doesn’t it? Errachidi making souffles when he was supposed to be an al-Qaeda general at a training camp, a teenage al-Qaeda financial wizard who was actually uh – getting tomatoes, not making funds transfers; the British crew who were somewhere else at the time the Bin Laden picture that they confessed to being a part of was taken; and Khadr pushed into statements on Arar that were obviously false as well – it goes on and on, but all we are supposed to hear is that they saved the world by waterboarding KSM.

  42. JThomason says:

    During the Bush administration I watched this stuff because it seemed like holding these issues in the vigilant eye would leave no doubt where the change was needed.

    Now look at it:

    1. Drone bombings in Pakistan
    2. Panetta disavowing prosecutions for torture.
    3. Continued vigor out of a White House basement office in the funding churches with respect to ”faith-based” initiatives in social services behind the precedental framework of a fiction that the social services arm of a church can be segregated from its more traditional church related activities.
    4. The continued acceptance of the practice of extraordinary rendition behind a state’s secrets doctrine.
    5. Backroom capitulations on the stimulus package.

    Right, change we can believe in…what a crock. I guess a good stout cup of power goes straight to the head. And Cheney spiked the punch bowl on the way out the door. I hardly want to pay attention anymore.

  43. Mary says:

    142 – pretty much. I keep hoping to find help I can afford, but not so much yet. It helps that I have enough land that in good weather they can stay out a lot.

    143 – They have to be let down, but I think they are all so involved in trying to survive the Bush generated eco-saster that it isn’t as high a priority. But IIRC, one of the German cases that was turned down for prosecution was specifically tied to the fact that avenues had not been exhausted in the US yet. It’s kind of looking like Panetta has just told the world that avenues are, indeed, exhausted.

  44. Mary says:

    146 – you can also add in the orders the US tried to issue to NATO member in Afghanistan too, i.e., orders to start killing anyone associated with oppium growing and trade, without needing any evidence tieing them to the Taliban or al-Qaeda. That order went out while Obama was CIC and only got revised when German and British officers said hell no, that’s a war crime, to use the military in that way. Obama said nada.…..83,00.html

  45. Kassandra says:

    Well, you could sorta see thsi coming with the back off from FISA and protecting the telecoms. Also, more to the point the Dems supporting the “Domestic Terrorism bill” and not mentioning a word about whether the gov would continue spying on US.

    By the way, I hear people are starving in Alaska; coming soon to YOUR neighborhood. Alaskans Starving While Palin Mugs For Camera

    O isn’t gonna substantially change a thing. The stimulus is crap and won’t work.

    I think we can all be assured that The Shock Doctrine worked and the USA is now a third world country being dictated to by the IMF and the World Bank. No wonder they wanted Wolfowitz in there. Good thing he’s gone, I guess.

  46. Leen says:

    Glenn “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.”

    What was it that AG Eric Holder kept repeating during his confirmation hearings
    no one is above the law”

    yeah right

  47. Mary says:

    158 – yeah, it is a bit different than my wording bc I didn’t spell out. Padilla and Mohamed have been basically tied together, with the CIA making dirty bomb charges against both (dropped in Padilla’s case when he had to go to trial, while they were charged against MOhamed at GITMO right about the same time)

    The ties for the two as “co-consirators” for a “dirty bomb” attack are, on the one hand, Zubaydah’s comement on Padilla:

    …that Abu Zubaydah had dismissed Padilla as “a maladroit extremist.” He told his interrogators that Padilla “was ignorant” and believed he could “separate plutonium” to make a real nuke from other nuclear materials by “rapidly swinging over his head a bucket filled with fissionable material.”

    while on the other hand, Mohamed, who had booked a flight on the same plane as Padilla when both had fled to Pakistan and both were trying to get out of Pakistan after the invasion, was discovered by the CIA to have confessed to visiting the hydrogen bomb bucket swinging website. The one they never could figure out did exist and was a spoof.

    So … they now had a complete picture. The two bucket swingers just had to be co-conspirators in a dirty bomb plot.

    On the stimulus and bank bailouts, he could have Stiglitz and Krugman and Roubini in the mix – but he’s opted for less Nobel Prizey and more centristy. Oh well indeed.

    • jdmckay says:

      (…) So … they now had a complete picture. The two bucket swingers just had to be co-conspirators in a dirty bomb plot.

      Thanks for clarification on the bucket brigade.

      On the stimulus and bank bailouts, he could have Stiglitz and Krugman and Roubini in the mix – but he’s opted for less Nobel Prizey and more centristy.

      centristy to what… wall street investment banks?

  48. JohnLopresti says:

    I am sure commenters will cover the recent history, as I continue to read the upthread. The way I read developments in the Binyam case, carefully, in UK news, and in the pleadings from human rights attorneys, and the leaks from government officials, Bush had Rice threaten Milliband with noncooperation on reconaissance, based on US state secrets in rendition; in other words, payback in a separate area of law enforcement, certainly one in which the UK recognized US had contributed much to domestic intell in UK, and internal intrigue involving UK agents. I think that was the gum Bush left in the works, a dysfunction Clinton and Holder with help from other leadership counsels in US to extract. I think there is a way forward for Holder, one he already has announced recognizing, namely, review of the state secrets classification as overbroad in some instances. I noticed Johnson at Bush EPA claimed in a letter to Boxer he could not tell her why he suppressed air pollution science, as it was a state secret as he implemented the suppressive techniques; at least that is my coloring of Johnson’s exculpatory remarks to Boxer concerning the redactions in a report. I think Patriot released a lot of these avenues of duplicity. Congress probably will reformulate what is Patriot and what is spurious. Meanwhile agencies may work with Holder and OMB to remove the whiteout from a few documents. Johnson’s contention was deliberative privilege.

Comments are closed.