It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications.
(SCENE: THE OVAL OFFICE)
Obama: Right, so we'll tell them that this was the policy of the old administration, and that a new day dawns, sunlight kills mold, so forth.
Rahm: Sir, this came in from the CIA. (Gestures to several accordion files full of papers).
Obama: Alright, now let's see... (Opens one up at random) ... what we've got.
Panetta: I'm warning you, it's pretty gr --
Obama: ( GOES SHEET WHITE ) oh dear lord.
Rahm: Totally. And that one's from 2002, when they were testing the water, getting used to the idea sort of thing. Here's one from 2007.
Obama: ( GOES PALER STILL ) Let us never discuss this again.
All: murmurs in agreement.
...to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture...
One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.
The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?
The Cheney-ites used to smirk about how the Obama administration would find that they wanted these "tools" when they got into power and a lot was written before the election about how power, once taken, will never be given back. And, indeed, this was the central thrust of many of our arguments about holding the Bush administration accountable for its abuse of the constitution.
Perhaps this will be the only case in which the Obama DOJ will assert this privilege, although it's hard to see what's so different about this particular case than any others of its ilk. But even if they do only use it this one time, because they have preserved the power, it will sit there, waiting to be used by leaders who may not be quite as saintly and wise as our current president. It is now no longer a relic of an administration that is widely seen as reckless and out of control. It's been validated by their successors. You can see how this is a problem.
In defending the Obama administration's position (without beginning to understand it), The Atlantic's Marc Ambinder revealingly wrote -- on behalf of civil libertarians who he fantasizes have anointed him their spokesman: It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)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.
It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.
. . .
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn't even a pretense of an effort to reconcile what they're advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention -- as valid and binding as every other treaty -- don't even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
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