On the campaign trail and well after his inauguration, Barack Obama has been critical of the Bush Administration’s “state secrets” defense against releasing evidence on extraordinary renditions.
When Eric Holder was appointed by Obama to be the US Attorney General, Holder made a pledge to review previous state secrets cases from the last administration.
From Eric Holder:
“I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
“I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law.”
“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.”
Yet Eric Holder has yet to live up to his promises.
In the Ninth Circut case of Mohamed v. Jeppesen Dataplan, Inc,
There was widespread anticipation that the Obama administration would change course, especially given the administration’s stated emphasis on government openness and AG Holder’s commitment to review every pending case in which the Bush administration asserted state secrets. (See here.)
But it didn’t.
Instead, a lawyer representing the administration told the panel that the administration would maintain the Bush administration position–a decision “thoroughly vetted with the appropriate officials within the new administration.”
Unfortunately, such news isn’t much of a priority for the American media, who appear to be more interested in reporting on the Bush’s Administration’s past sins, and less inclined to report Obama’s surprising continuation of the state secret privilege.
Thanks to the foreign media and constitutional law blogs, Americans still have an opportunity keeping informed of the issue.
From the United Kingdom’s Guardian:
Barack Obama‘s justice department has repeated a Bush administration policy of citing “state secrets” to prevent the release of evidence concerning extraordinary renditions.
The decision, revealed at a hearing in a San Francisco appeals court, came days after the British high court ruled that evidence of renditions and torture must remain secret so as not to endanger the intelligence relationship between the two countries.
The Obama justice department, under attorney general Eric Holder, today reiterated that position, to the disappointment of civil rights campaigners.
Saying that Holder had instructed officials to review the “state secrets” policy, a justice department spokesman said: “It is vital that we protect information that, if released, could jeopardize national security. The justice department will ensure the [state secrets] privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.”
Accusing Obama of turning his back on civil liberties, Anthony Romero, executive director of the American Civil Liberties Union, one of the parties in the case, said: “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.”
Now the Obama Administration’s decision to implement the state secrets privilege case of Mohamed v. Jeppesen Dataplan, Inc., was a little more than a week ago, yet what makes this interesting is how Democrats and the Left in general, are reacting to the President’s continuation of the state secrets privilege.
As you may recall, Sen. Leahy has been calling for a “Truth Commission” to investigate the Bush Administration’s “asbuses of power;” one such priority has been to unravel the Bush Administration’s use and defense of the state secrets privilege. Leahy along with other Democratic lawmakers have been relentless in their attacks on the Bush Administration for their secrecy in executing the War on Terror, and yet, after the Obama Administration’s decision to continue the practice, Leahy has been a pretty quiet. But let’s be fair, “breaking the law,” as Sen. Leahy puts it, is only permissible if done by a Democratic president.
Instead of vocally opposing the President, Leahy is sponsoring new state secrets legislation, and of course, only makes mention of the Bush Administration’s use of the privilege.
Some on the Left are being true to their convictions and are being openly critical of Obama’s hypocritical reversal, yet many more, like Sen. Leahy, are keeping quiet or rushing to Obama’s defense. Afterall, the only partisans out there are Republicans…
From Salon:
We don’t actually have a system of government (or at least we’re not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely. That, by definition, is how grateful subjects of benevolent tyrants think (“this power was bad in Bush’s hands because he’s bad, but it’s OK in Obama’s hands because he is good and kind”). Countries that are nations of laws rather than of men don’t rely on blind faith in the good character of leaders to prevent abuse. They rely on what we call “law” and “accountability” and “checks and balances” to provide those safeguards — exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.
Democrats have large majorities in both houses of Congress; they ought to use it to legislatively bar the power that the Obama DOJ is now attempting to vest in the new President by enacting the legislation they spent all of last year insisting they favored. Now that the Obama DOJ is seeking to acquire that power for its new President, the need for that law is more acute than ever.
- Marc