Wednesday, March 11, 2009

I told you so, Chapter Three

On February 9, Obama's DOJ announced it would maintain the Bush administration's position in Mohamed et al v. Jeppesen Dataplan, Inc.
The case involves five men who claim to have been victims of extraordinary rendition.... 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 got thrown out based on an assertion of the spurious "state secrets privilege" by the Bush team. However, the Ninth Circuit Court of Appeals agreed to hear an appeal brought by the ACLU. In response, the Obama team reasserted the privilege, one founded on lies, under which the Executive Branch claims the power to make an unreviewable decision that allowing the case to continue would threaten national security - without even being under any obligation to explain how or why it would do so. While theoretically courts can refuse to recognize the privilege, they rarely if ever do - so it becomes a one-size-fits-all cloak for government misconduct, including shielding itself from examination of its extraordinary rendition and torture.

Justice Department spokesman Matt Miller said
"The Justice Department will ensure the 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."
Or, more clearly, we'll tell you whatever we in our sole discretion decide you have the "right" to know.

Footnote: The link at "states secrets privilege" is to an old post with a now-defunct link to an LA Times series. But this link to a review of a recent book on the case that gave rise to the "privilege" should do.

Another Footnote: A bill has been introduced in both houses of Congress that would set limits on the use of the state secrets privilege. It would among other things require that the government at least demonstrate to a judge that there really is some jeopardy to national security involved instead of expecting the judge to accept the claim without examination of it, as usually happens now.

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