Dispatches from the Creation Wars

Daphne Eviatar, who appeared on my radio show recently, has an interesting article at the Washington Independent about some upcoming court cases that will tell us just how seriously Barack Obama is about restoring transparency and accountability to our anti-terrorism programs.

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.


This will be a very important case to watch. Up until now, the DOJ’s response to those lawsuits, including using the state secrets privilege to get such cases dismissed and avoid any scrutiny of the administration’s actions, has been controlled by Bush. Now it’s under Obama’s control and he can direct the DOJ to withdraw such assertions of privilege. Will he do so? We don’t know.

The Department of Justice declined to comment on this case. In its brief filed before President Obama took office, however, it argues, largely on the basis of a classified declaration of former CIA Director Michael Hayden submitted “in camera” – that is, for exclusive review by the judge — that release of any information pertaining to this case would harm national security. Hayden’s statement “explained more fully than was possible on the public record the scope of information subject to the privilege assertion, and the harms that would flow from its disclosure,” Justice Department lawyers wrote. Although the victims perhaps “cannot appreciate fully the reasons for the district court’s conclusion . . . or comprehend the substantial harm to national security and foreign relations that could reasonably be expected to result from litigating this case,” the court of appeals should rest assured that the government’s reasoning is sound, write the government lawyers.

Contacted last week by TWI, a Justice Department spokesman would not say whether the new Obama administration would change its position in this case. He confirmed only that oral arguments are scheduled for Feb. 9.

If the Obama administration maintains the government’s position in this case, said Wizner, it would further the Bush administration’s strategy of turning the state secrets privilege into a blanket immunity for the most egregious and unlawful government action.

“Every single civil torture case that’s been filed has been dismissed at the pleadings stage on what non-lawyers would call a technicality,” said Wizner, referring to the state secrets and government immunity defenses that have succeeded in other torture cases.

If Obama means what he says about transparency, torture and accountability, he will direct the DOJ to withdraw the assertion of the state secrets privilege immediately.