Team Obama, Legal Edition – UPDATED
A few days ago, I posted a short and optimistic defense of the Obama administration’s progressive bona fides by pointing to his terrific legal appointments. Then, just as soon as I posted the defense, that legal team (or, until we know more information, I should maybe just say that someone, somewhere in that legal team) did something that, at least on its face, seems to represent a major counterpoint to my argument. I’m talking, of course, about its reassertion of the state secrets doctrine in a lawsuit concerning the renditions. Hilzoy, at Obsidian Wings, has the troubling details.
UPDATE: I’m not sure this is related, but it looks hopeful. Still, the lawyer’s claim in the case cited above that the invocation of the doctrine in that case had already been fully vetted is troubling.
It sure does appear inconsistent with the Obama administration’s position on closely related matters. I wonder if there’s a “the rest of the story…”
I tend to agree with Paul that there may be something more to the story. Just last evening at his press conference, President Obama made clear (again) that his administration will strictly observe the Constitution and treaty obligations in its treatment of detainees.
BTW, I thought President Obama did a very good job during his first press conference. He was poised, prepared, and articulate. I don’t think David Letterman will have Obama fodder anytime soon to include in his “Great Moments in Presidential Speeches” schtick.
The rest of the story may be as simple as: we just walked in the door. We have very little details about the basis upon which this doctrine was asserted and we’d like to at least review the evidence and the legal conclusions therefrom before we make an irrevocable decision on the matter. They may have an instinct that the privilege is wrong, but once a privilege is waived, there is no getting it back.
You’d fire your lawyer if he did anything less.
That was my reaction to the story: the Obama administration doesn’t yet have the facts, maybe they don’t even have people in place who could learn the whole story. And since “state secrets” are invoked, you have to wonder if they’re so secret that the new administration won’t be allowed to know what they are, ever.
Over time, we are going to find that a lot of “secrets” were squirrled away by the previous administration; that there are people in place–CIA, NSA, DOJ, etc., who have a vested interested in keeping them hidden; and that the new administration is going to have a hard time finding and revealing them.
Would we be surprised that under the Obama administration illegal, unconstitutional, and immoral treatment of “others” continues, unbeknownst to the Obamaites? Hidden forever? Or produced to smear them at an appropriate moment in the future? Such paranoia. Where did I pick that up?
Would we be surprised that under the Obama administration illegal, unconstitutional, and immoral treatment of “others” continues, unbeknownst to the Obamaites? Hidden forever? Or produced to smear them at an appropriate moment in the future? Such paranoia. Where did I pick that up?
Perhaps upon reviewing all of the facts, Team Obama has uncovered things that would turn your hair white. After appointing a man who is either a flagrant tax cheat or an incompetent, after trying to appoint two other tax cheats and a man under investigation for some sort of shady dealings, and after appointing a Raytheon lobbyist to a defense post (after pledging that he would not do such a thing), I guess we can all say, Now that’s change you can believe in!
OK – let me get this straight.
The reason for this is as Barbara says is
“We have very little details about the basis upon which this doctrine was asserted and we’d like to at least review the evidence and the legal conclusions therefrom before we make an irrevocable decision on the matter.”
and I agree with her by the way
Why, when they didn’t have the responsibility of making such decisions, and didn’t have to live with the consequences of their pronouncements, did they speak as if they did have all the details – or at least enough to declare unequivocally that the Bush admonsistration was wrong? The didn’t worry about having all the facts then.
Either Eduardo is right, and this is a sell out, or they found out they were wrong, or (most likely) they were spouting about things they didn’t completely understand during the campaign.
I’m not sure it’s that simple, Sean. It seems to me that it’s possible to say, “The Bush administration, through bad decisions, has put us in a bad situation that can’t easily be undone.”
Here is my understanding:
The way the Bush administration tried to use the State Secrets doctrine was, basically, to dismiss lawsuits on the premise that the entire subject area raised in the suit was properly a matter of state secrecy. That’s different from, say, specifying documents or even types of documents that should not be made available on the grounds of state secrecy. It’s not that there should be no State Secrets doctrine, it’s what the doctrine encompasses in terms of its breadth and scope that is at issue.
I still think it would basically be crazy to walk into court after just starting at the DOJ with a full-blown position, but the reason that the ACLU et al. are upset is that they wanted to see some recognition that the doctrine as applied was too broad. I am sympathetic to that position.
OTOH, I am glad to be proven wrong but I don’t think Obama ever announced anything definitive regarding any of these specific issues, except for promising to close Guantanamo.
From TPM on Democratic reaction. We should applaud them, but where were they when the “State Secrets” claims were first made.
Second Democrat Hits Obama Over Defending Bush’s State Secrets Claim
By Elana Schor – February 11, 2009, 2:33PM
The Obama administration recently made the dismaying decision to defend the Bush-era Justice Department’s use of the “state secrets” privilege in a lawsuit filed by alleged victims of extraordinary rendition. As TPM alum Greg reported yesterday, Sen. Russ Feingold (WI) was the first Democratic lawmaker to openly criticize the Obama DoJ’s decision … and now we have a second.
Rep. Jerrold Nadler (D-NY), joined by Reps. John Conyers (D-MI), Zoe Lofgren (D-CA), an Tom Petri (R-WI), just introduced a bill that would reform the state secrets privilege by requiring judges to assess whether a blanket claim of secrecy by the government is necessary to protect national security. And as he offered the bill, Nadler rightly took the opportunity to rap the Obama legal team:
The administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege.
A little constructive criticism might be the best medicine for the administration in this case.
I am all for constructive criticism, be it a little or a lot. It annoys me to listen to people who thought that they could turn the keys over to Obama without having to continue looking over his shourlders on the matters they care about. Where were they? They were in the minority in the House and the Senate. I know Feingold’s views have always been the same. Also, I’m not sure about State Secrets, but a number of other transparency related bills have been passed by the House since 2007, only to die in the Senate. One of the more useful constitutional amendments I can think of would be to simply abolish the Senate, and give each state two additional representatives, so that the minimum would be three instead of one.
Not to quibble, Barbara, but they were the majority in 2006-08. I think many senators, Schumer, for example, Feingold for another and I suppose many others were enablers in this vexing question of torture, state secrets, etc. Let’s remember who supported Mukasey’s nomination in the Senate. Mukasey then went on to obfuscate probably more intelligently than Gonzalez ever did. Okay so maybe that’s a quibble…
They were barely the majority in 2006-2008. 49D + Sanders + Lieberman doesn’t get you very far in the Senate. But the issue is, the DOJ is part of the executive branch. It is very difficult for Congress to micromanage an executive agency.
Sorry about above. I said Feingold, but I should have said Feinstein….