By Kenneth J. Theisen
For those who thought the Obama administration would make a sharp break with Bush regime policies around extraordinary rendition (the policy of transferring prisoners to U.S. allies for torture and interrogation), the argument made by Obama’s Department of Justice (DOJ) on February 9, 2009 must have come as quite a shock. DOJ echoed the Bush regime’s legal claims of "preserving state secrets" in a lawsuit against a Boeing subsidiary, Jeppesen DataPlan, for its role in arranging and providing transportation for CIA-kidnapped subjects in the extraordinary rendition program. (For more details on this lawsuit, see my article on this site: “ACLU Sues Boeing Subsidiary for Complicity in CIA’s “Extraordinary Rendition.”)
Mohamed et al. v. Jeppesen was brought on behalf of five victims of the CIA’s extraordinary rendition program. They were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence
agencies overseas, where they were tortured during interrogation. In order to cover itself and its various allies in this illegal program, the Bush administration intervened in the case, asserting the "state secrets" privilege and claiming the case would undermine national security if it was allowed to be heard by the court. The Bush regime also wanted to protect the Boeing subsidiary so that private contractors would continue to cooperate in the various illegal “war on terror” programs initiated by various U.S. intelligence agencies after 9/11. The administration further wished to provide political protection to various foreign governments that participated in the extraordinary rendition program. This case, if allowed to proceed, would expose that the Bush regime was deeply involved in torture and death through its secret rendition program. It may also reveal secrets of the Clinton’s administration use of rendition.
After the Bush regime intervened in the case, it was dismissed by the trial court. The American Civil Liberties Union (ACLU) then appealed. Oral arguments were presented on February 9th in the ACLU’s appeal, and the Obama administration opted to follow in the Bush regime’s footsteps, reasserting that the entire subject matter of the case is a state secret.
In yesterday’s arguments the Obama administration also seemed to be sending a message to the judiciary to stay out of national security cases. Justice Department lawyer Douglas Letter warned the Ninth U.S. Circuit Court of Appeals in San Francisco, "Judges shouldn't play with fire.” He further told the court that once it examines the government’s classified evidence, “you will see that this case cannot be litigated.” The DOJ lawyer also made clear he was acting on behalf of the Obama administration when he stated that DOJ’s argument has been, "thoroughly vetted with appropriate officials of the new administration."
This intervention and the “state secrets” argument should not really be a surprise to anyone who has followed the Obama political campaign and transition. Obama voted for the FISA surveillance bill last year while still in the Senate and while running for president. That bill not only gave the government vast legal authority to spy on millions of Americans and others, but it also provided retroactive immunity to telecommunications companies that enabled the government to spy on our emails, listen in on our phone calls, data mine our financial records, etc. Obama saw the need to protect the “private sector” when it participated with the police state apparatus.
We were further given a foretaste of the Obama administration’s attitude toward the rendition program in Leon Panetta’s Senate testimony at his CIA confirmation hearing earlier this month. Panetta admitted that the U.S. government will continue to hand detainees over to other countries for interrogations. He claimed that this would only be done after assurances by the foreign government that received the prisoners that they will not be tortured. But the Bush regime made the same claim. Bush administration officials always claimed they were given promises that no one would be tortured, despite vast evidence that the detainees were tortured and sometimes killed.
In his testimony before the Senate Intelligence Committee, Panetta stated, "I will seek the same kind of assurances that they will not be treated inhumanely. I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries." Also in his Senate testimony, Panetta expressed his views on holding U.S. officials accountable for torture, specifically CIA interrogators. Panetta said there is no intention within the Obama administration to hold CIA officers responsible for the policies they were told to carry out. CIA interrogators who used waterboarding or other harsh techniques against prisoners with the permission of the White House should not be prosecuted, he said. Panetta stated, “It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could possibly be prosecuted. This is no different from the policy of the Bush regime.
Panetta should be familiar with renditions and torture. He was Chief-of-Staff to Bill Clinton in 1995 when the President signed a presidential directive authorizing the CIA to conduct renditions. Dozens of official kidnappings then occurred under this “legal” authority. According to Joanne Mariner of Human Rights Watch, “The Clinton policy meant torture. We haven’t been able to interview the people themselves, but we have evidence they were tortured.” But don’t worry - certainly the Clinton administration received assurances that the suspects would not be tortured, just like those assurances the Obama people will certainly receive. Panetta will work with Hillary Clinton’s State Department to make sure the assurances are “implemented.” How reassuring!
Clinton counterterrorism official, Richard Clarke describes one rendition discussed during the Clinton era. His description portrays how one Democrat-led administration viewed international law. It may also be a foreshadowing on the views on law held by the Obama administration. In his book, “Against all Enemies, Inside America’s War on Terror” he wrote, “The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore…Gore laughed and said, ‘That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.’”
For a detailed description on how the extraordinary rendition program was nothing but a subterfuge for torture see “Outsourcing Torture” by Jane Mayer in the New Yorker.
In the ACLU press release on yesterday’s proceedings, we get a good summary or what this case is about. Anthony D. Romero, Executive Director of the ACLU lambasted the DOJ argument stating, “Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue.”
Ben Wizner, the ACLU attorney that argued the case said, "We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration's practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court.”
Unlike Wisner, I am not shocked. Obama and his administration, despite illusions or “promises” of change, is representative of an imperialist ruling class. That is why it argued the way it did in this case. That is why it will continue the war in Iraq and escalate the war in Afghanistan. That is why those who hope that an Obama administration will fundamentally change the political trajectory begun by the Bush regime will be disappointed again and again until they realize that change will only come about when millions of us take direct action to make change possible. Relying on “saviors” will not result in the change that is needed.
We will continue to follow this case and report on this site about it.