The New York Times reports:
In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations. ... snip
...a government lawyer, Douglas N. Letter, made the same state-secrets argument [as Bushco made] on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
"Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
"No, your honor," Mr. Letter replied.
Judge Schroeder asked, "The change in administration has no bearing?"
Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said.
There you go. This is "thoroughly vetted." These are "authorized positions." It's the same old. It's not exactly change you can believe in, at least not in this case.
Said a spokesperson for the Obama Justice Department:
A Justice Department spokesman, Matt Miller, ... seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.
"It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases," he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.
"The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations," he said. "It is vital that we protect information that, if released, could jeopardize national security."
That review, folks, isn't worth a cup of warm spit. That review allowed "state secrets" to be asserted in this case. Evidently, it doesn't matter that the court papers
describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, "he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death."
Evidently it doesn't matter that everybody in the world already has access to virtually everything about Binyam Mohamed's illegal extradition, torture, and continuous confinement. Pointing out how widely reported Binyam Mohamed's case has been, Ben Wizner, a lawyer for the A.C.L.U., told the judges that what the government was trying to keep secret by asserting the "state secrets" doctrine isn't secret at all. The details of the administration’s "extraordinary rendition program" (read: illegal extraditions) have already been told, as have how those facts applied to the plaintiffs. "The only place in the world where these claims can’t be discussed," Mr. Wizner said, "is in this courtroom."
Maybe the moderate/liberal panel of the Ninth Circuit that heard this case will overturn it. I hope so. But my disappointment at the position taken by the Obama Justice Department leaves me shaking my head in sorrow. This isn't change we can believe it. It's not old wine in new bottles. It's just the same old same old.
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