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State Secrets: Protecting National Security or Justice Denied?

1 year ago
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Alex Wagner
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Alex Wagner
White House Correspondent
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In 2002, Binyam Mohamed, an Ethiopian now living in England, claims he was arrested in Pakistan, turned over to the CIA, flown to Morocco and handed off to Moroccan police. Mohamed asserts that interrogators held him for 18 months and subjected him to torture. According to the New York Times, this included "cutting his penis with a scalpel and pouring a hot, stinging liquid on the open wounds."

Eventually he was flown to a secret prison in Afghanistan where, Mohamed said, he was "held in continuous darkness, fed sparsely and subjected to loud noise -- like the recorded screams of women and children -- 24 hours a day," the article said. He was then transferred to Guantánamo Bay, Cuba, where he was incarcerated for another five years. Mohamed was released in 2009.

On Wednesday, a federal appeals court for the Ninth Circuit dismissed a lawsuit filed by Mohamed and four other former prisoners against Jeppesen Dataplan, Inc., a subsidiary of Boeing, tasked with arranging flights for the CIA to extradite prisoners to other countries for imprisonment and interrogation. (One Jeppesen managing director referred to them as "the torture flights.") The judges of the Ninth Circuit, in a sharply divided 6-5 ruling, said that simply by letting Mohamed's civil case come to court, highly sensitive government information would be compromised.

In dismissing the case, the court handed a major victory to the Obama administration, which has -- via the Department of Justice -- maintained a broad use of the so-called "state secrets" privilege throughout Mohamed's trial (in April of last year, a Ninth Circuit court ruled that the case could proceed, but the administration appealed this decision). It is the administration's position that the court hearing of a former detainee -- even one relying solely on public information -- would pose too much of a risk to national security. This, despite a high profile Department of Justice policy announced last fall that said the administration would limit the use of the very same state secrets privilege in an effort to "strengthen public confidence," presumably in response to Bush-era secrecy.

Mohamed's case, however, is not unique: not a detainee who alleges torture during the Bush administration has seen a lawsuit go to trial. Critics who assert this is stonewalling say it falls in line with other Obama administration policies, including the continued transfer of detainees to foreign countries where they are denied the legal rights of the United States, and indefinitely detaining terrorism suspects without charge or trial. The president himself came out against any criminal investigation into Bush administration officials who may have been involved in torture and detention, saying: "This is not a time for retribution. It's a time for reflection."

Such actions by Obama, who said, as president-elect, that he would, "adhere to our values as diligently as we protect our safety, with no exceptions," have raised eyebrows, if not garnered outright condemnation, among civil and human rights activists.
While Obama the candidate may have had a clear-eyed view as to how he would change national security policy once he got into office, the reality of altering Bush-era programs has proven to be incredibly complicated. The president has been hamstrung not only by a complex security environment -- grappling with continued terrorist attacks and an ongoing war against al-Qaeda -- but also a highly partisan political environment, where every move made to alter counterterrorism policy is an opportunity for critics to lambast the president as "weak on terror." As a result, the White House has been forced to adapt its principles -- sometimes, quite radically.

At the start of Obama's administration, the president made solid steps to unwind the policies of the Bush years: 24 hours after assuming office, Obama put an end to the use of torture and called for the closing of Guantánamo within one year. He released Justice Department memorandums and CIA reports regarding the previous administration's torture policies. He shut down the so-called CIA "black sites," an overseas covert prison network.

Meg Satterthwaite, associate professor of clinical law at NYU and faculty director at the Center for Human Rights and Global Justice says, "There's no doubt that the administration did shut down the worst parts" of the Bush-era counterterrorism program, and that "they made huge steps." But, in her view, the continued claim of "state secrets" in the case of detainees like Binyam Mohamed, "is a terrible sign." These people, says Satterthwaite, simply want "basic justice."
Ben Wizner, the ACLU attorney for Mohamed, goes one step further: "This administration made a political determination that trials of high-level Bush administration officials would be damaging, and they've had to work back from that to ensure [their desired] outcome." The "state secrets" privilege, he posits, is exemplary of that. Says Wizner, "Once the judge has found a party guilty, criminal liability becomes the next question. [The Obama administration] would lose too much by allowing justice to run its course."

Ken Gude is the director of the international justice and security program at the Center for American Progress, a left-wing think-tank. He disagrees with Wizner's assertion that the Obama administration might be using "state secrets" privileges to protect Bush administration officials, saying, "I don't think that there's evidence" for that. Still, he concedes, "Obama's position on state secrets is the most disappointing part, in terms of how the administration has sought to rebalance policy since Bush."

To supporters who had hoped the president would have done away with more of the Bush-era counterterrorism policies, some experts point to the difficulty of unifying public opinion on security matters. Sattherthwaite argues that "there's a political aspect" to the administration's current position. "It's best illustrated by the closing of Guantánamo," she says. "The administration had the best intentions, but the actions of Congress and public perception made it politically not viable." (The detention facility remains open).

Gude, too, noted the political environment and its effect on the Obama administration's counterterrorism policy: "It's a very challenging environment," he says. Referring to the political gridlock in Washington, Gude explains, "A lot of effort has been put up to prevent the White House from doing everything it wanted to do." For his part, Gude asserts that the president can still turn the dial: "A shift in detention policy is the right move not just because it brings us back to [a more consistent worldview], but because it's good national security policy as well."

But Wizner remains concerned about the administration's embrace of a more hard-line counterterrorism strategy. He and the ACLU have further voiced concern about what's been called a "new normal," which accepts the laws many considered extreme and unlawful under the Bush White House.
"Torture was the law of the land under Bush, and that has been granted immunity under Obama," he says. Not content to sit back with the Ninth Circuit's ruling, Wizner says that he and Mohamed will be taking their case to the Supreme Court. Should the highest court in the land decide to take up the matter, it will be the first time in 50 years that the court has ruled on the scope of the president's power to control the release of state secrets.
Filed Under: Terror, Supreme Court, Foreign Policy, Obama Administration, National Security, Law, White House, Analysis
Tagged: detainees, Guantanamo Bay, State secrets, torture
More articles from Alex Wagner »

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8 Comments

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vicbar88

Tt is really quite simple - In this case which do you prefer Justice or Security? Every administration/government since the beginning of this country and all of those prior and elsewhere have really but one real job - "to protect it's very own existance" so basically Justice has no meaning or value if you do not exist. Justice is a relative term and should never be used to jepordize ones own existance.

September 16 2010 at 9:52 AM Report abuse rate up rate down Reply
imme534333

Thank you Pat Craven for a well reasoned response.

September 12 2010 at 9:03 PM Report abuse -2 rate up rate down Reply
Roy M

Do you really think the right-leaning court will allow the release of Bush-era secrets? Get real! It will never happen.

September 12 2010 at 1:44 PM Report abuse -12 rate up rate down Reply
tjstieg

Liberals who condemmed GWB for his interrogations,etc were not being realistic about what is really happening in the world. Not that BHO's administration has had to resort to the same tactics maybe these people will finally have the wool pulled from over their eyes. Time to wake up and grow up.

September 12 2010 at 12:48 PM Report abuse +22 rate up rate down Reply
dajt666

this is wrong. our prisons are full of people who would love to have been able to plead top secret/national security. this is not what america is about at all. this sickens me.

September 12 2010 at 12:24 PM Report abuse -20 rate up rate down Reply
Jimmy

This a weak and poor written article,,,need to do a little more research about past history before claims being made about. Journalism is again no wher to be found. We should come to expect this type of commentary on the internet!!

September 12 2010 at 12:18 PM Report abuse +22 rate up rate down Reply
1 reply to Jimmy's comment
Dave

Where did you read it?

September 12 2010 at 1:21 PM Report abuse -5 rate up rate down Reply
opus1dog

I've always been a peace-loving pacifist liberal. Sorry, but that crap changed slightly when planes started falling from the sky and no one, not even my grandmother, is immune from scrutiny in this day and age as it relates to national security. And Mr. Obama? I voted for change back in 2008. Nothing happened. Now I've changed my mind.

September 12 2010 at 11:56 AM Report abuse +30 rate up rate down Reply
stheel4

Remember , these allegations of torture are alledged allegations to begin with. This article reads as if its a proven fact evidentely in an attampt to attack the previous administration.

September 12 2010 at 11:51 AM Report abuse +24 rate up rate down Reply
mohasca

It appears that there are liberal entities that would provide the rights of a US Citizen to all. This will allow others to gain benefit w/o providing taxes. If you gave to all strangers the right, instead of privilege, to come into your house and eat your food, soon it would all be gone, and your family goes hungry. By providing foriegn nationals rights in our legal system, we open the door to file civil suits. The check and balance against government doing wrong is an educated electorate, that is the watchdog of the government. Not the courts handing out civil awards to people or entities who do not contribute to this country but instead seek to tear it down. Go see if as a US National if you can file a civil suit & recieve an award in any of the countries that are allowing religous fanatacism that advocates the destuction of our way of life, that provides those self same rights they are seeking to use.

September 12 2010 at 11:45 AM Report abuse +16 rate up rate down Reply
2 replies to mohasca's comment
joeg2028

You're mixing apples and oranges. In this country we have certain rights and freedoms. If those other countries that you mention don't provide the same rights, that doesn't make it any more right for us to deny rights to others, especially when we've evidently mistreated them. If we abuse foreigners by throwing them into prison (read Guantanamo) without charge and then release them after SEVEN years without so much as an apology, then they SHOULD have the right to sue the government in court, I think. We took seven years of one guy's life and undoubtedly several years of other people's lives. Don't you think they're entitled to some kind of restitution? Why would we release them if they were advocating "the destruction of our way of life"? Why would we not charge them with some crime against the government and the people of the United States and try them in court? Maybe because we had no evidence and had haphazardly pulled people off the streets in foreign countries to generate the rationale for invading Iraq.

September 12 2010 at 1:24 PM Report abuse -10 rate up rate down Reply
mcrogerm

I recommend that you sit down and actually read the constitution. Most of the "rights" we talk about are in the Amendments, especially the first ten. First of all, these "rights" are not privileges bestowed on the people, they are restrictions of what the government is allowed to do. Second, you will, if you actually read them, notice that when they refer to people they do not use the word "citizen." The constitution in all cases that I can think of refers to "all persons." I know the Supreme Court has ruled that in many cases non-citizens cannot call on our courts for protection or that the constitution does now apply in some cases outside the physical limits of the United States, but in general the restrictions on government apply to "all persons."

September 12 2010 at 11:33 PM Report abuse -1 rate up rate down Reply
mrloushaqfu

We need to know more about why this person was picked up by the CIA to begin with - I doubt it was a mistake - it's unfortunate he was tortured - but American lives were at stake - and those are more important than the muslim terrorist/mistaken terrorist anyway...

September 12 2010 at 10:16 AM Report abuse +32 rate up rate down Reply

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