The Obama administration's position in this court case in San Francisco sure looks fishy to me:
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...
...During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument 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.
As I read this, it is not, strictly speaking, a position "defending" torture or extraordinary rendition, but it certainly is a position defending the executive branch's ability, of its own volition, to prevent any information about certain prosecutions from being disclosed -- even information that could help the accused's lawyers build their case. And of course, if you can keep things secret, well, you can do just about anything. Here's Hilzoy, who really knows this stuff:
It would be one thing if the state secrets privilege meant only that government officials could not be asked to provide evidence in a case. That would be bad, but not as bad as the state secrets privilege, which (if I understand it) allows the government to argue not simply that it should not be required to testify, but that plaintiffs should not be allowed to try to establish certain sorts of facts on their own, from the public record. When those facts are central to the plaintiffs' case, as they are here, the government can argue that that case should be dismissed. To allow the executive the power to make such claims simply on its own say-so, without any opportunity for anyone to verify them, is just plain wrong. Again, the Obama administration cannot be expected to have made this power go away, but it can absolutely be expected not to use it.
Scott Horton hasn't weighed in yet. I want to see what he says. But this looks awful and offensive and, to put mildly, like something drastically at odds with Obama's campaign positions and rhetoric, as the shock of the judicial panel attests. The worst news of the Obama presidency so far.
And yes, it helps old Pilger's anti-Obama case! (Even though I still think that that LA Times piece was wrong; it was on a closely related issue, but not on this specific issue of state secrets.)
