This position, outlined by Obama last night, has never seemed more disingenuous. In a response to a question from Sam Stein about torture prosecutions, Obama kept the door open a crack:
What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture, that we abide by the Geneva Conventions, and that we observe our traditions of rule of law and due process, as we are vigorously going after terrorists that can do us harm. And I don't think those are contradictory; I think they are potentially complementary.
My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.
There could hardly be a more clear case of wrongdoing than the torture and rendition of Binyam Mohamed and four other men, with the assistance of a Boeing subsidiary. But rather than "observe our traditions of law and due process," the Obama administration chose to prevent the details of Mohamed's interrogation citing national security concerns and invoking the state secrets privilege. It would seem that there are, in fact, people who are above the law, and in this case that would include Boeing subsidiary Jeppesen and agents of the United States government. There is no reason to believe, now that the Obama administration has invoked the state secrets doctrine to prevent judicial scrutiny of torture, that he wouldn't do the same thing in other, similar cases. As Kevin Drum points out, the problem is that the Obama administration invoked the doctrine to dismiss the entire lawsuit, rather than individual pieces of evidence. And that's exactly what the Bush administration used to do:
Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What's more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.
What makes this really frustrating is that Eric Holder told Sen. Russ Feingold in a response to a question about the state secrets doctrine that he would "review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations." This is, quite obviously, the kind of abuse of the privilege that Feingold was concerned about.
I'm assuming that part of the concern is that allowing Jeppesen to be sued could prevent further cooperation from them in the future. The British government is likely complicit in the torture of Mohamed, and they may have a similar interest in keeping the details under wraps. But this is all partially the consequence of Obama's failure to make a clear decision on torture prosecutions, whether by pardoning those who tortured and the government officials who enabled them, or by prosecuting those responsible. Instead, he's chosen a bizarre middle ground where illegal activity is acknowledged but those responsible are shielded from civil and criminal law by the administration itself. In the meantime, he makes vague pronouncements about nobody being above the law while keeping certain people above the law.
It's possible that the British government's involvement in this case makes it unique, and it's possible that the Holder DoJ is still finding its footing on these issues and we won't see this kind of behavior in the future. But I'm skeptical.
-- A. Serwer
