The O-Bush Administration

The Obama administration's shockingly wrong opinion in a case of five men subjected to extraordinary rendition is shockingly wrong for a number of reasons, but mainly because it is literally and verbatim the exact same utterly indefensible legal position the former Bush administration took on the practice, which amounts to a hideous abuse of the "state secrets" privilege: "We're not going to tell you what we did to these men becase we say we don't have to."

The case involves five men who claim to have been victims of extraordinary rendition -- including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

A year ago the case was thrown out on the basis of national security, but today the Ninth U.S. Circuit Court of Appeals heard the appeal, brought by the ACLU.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

Needless to say, The Double G takes the Obama administration to task over the case.

What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief. As Wizner said:

For one thing, the idea you alluded to, the facts of this story are absolutely well-known, have been the front pages of the New York Times and Washington Post, are in books, and all of these stories are based on CIA and other government sources, that essentially said, well, in this case we got the wrong guy. So the position of the Bush administration, accepted by conservative judges in that case, really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen.

Despite that, the new President -- who repeatedly condemned the extreme secrecy of the Bush administration and vowed greater transparency -- has now acted to protect, purely on secrecy grounds, the government and company that did this...

I would have thought that a government that ran on the principle of Aperture Science's mission statement -- "We do what we must because we can!" -- would have been abandoned by Obama at this point.

But it's painfully clear that the height of intellectual laziness is politics: borrowing verbatim a truly shitty "neener-neener" playground argument for the basis of justice in government makes Obama in this case far, far worse than Bush ever was as President. Obama is a trained Constitutional Law scholar, Harvard Law Review editor, and university professor. He knows exactly what he's saying to the world from a legal standpoint when he verbatim adopts a Bush position on something like this.

He's saying he doesn't give a shit, and that Bush is legally correct, because it's easier than coming up with another solution to the problem. He doesn't have time. He doesn't have the inclination to fix this issue. He knows exactly why this case is a state secret and refuses to discuss it, and yet the case has been freely discussed across the media spectrum, as Greenwald's article points out, discussed openly everywhere but a Federal court. BooMan agrees with Greenwald, saying he's covering up for not Bush/Cheney (and Obama has no intention of going after them at all) but instead he is covering for the intelligence community he needs to maintain.

I personally think they're both wrong on that account. After all, the allegations leveled against the government in this case are nothing short of horrific:

The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed, for example, 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.”

We did this. Obama wants no part of it because he knows as President now just how deep this rabbit hole goes. It would implicate not just Bush/Cheney and the intelligence community of the CIA, but also the Democrats on the various House and Senate commitees who signed off on these practices and failed to tell the American people about how Bush broke the law.

Obama is covering up for DiFi, Jello Jay, and the rest of the Democrats who are accessories to Bush's criminal acts. He can't reveal the truth without destroying his own government and his own party. Robert Ludlum couldn't have written a better political thriller ending.

So Obama will take this case to his grave just like Bush. And with it, any real credibility that he had as an agent of change. He has chosen official Washington politics over justice and reason. Some of you will say "But he has no choice."

Which is, if you'll excuse the language, complete bullshit. You always have a choice. Some choices are just far more difficult roads to take, requiring more courage and fortitude than politicians have.

Along with Tim Geithner's craptastic bank bailout plan announced today as the first major screw-up, this legal position represents Strike Two of the Obama administration's progress. Obama hasn't failed yet, he's still infinitely preferable to a McCain administration, which would be up to Strike Twelve by now.

But it's still very hard to swallow and tough to deal with.