Monday, February 09, 2009

The change in administration has no bearing: Renditions A-OK!

The NYT reports the Obama administration's Justice Department has decided to stay the course in extraordinary renditions and keep all records about it secret. On Monday Obama's DOJ let everyone down in front of the United States Court of Appeals for the Ninth Circuit by citing executive privilage to hide what happened to Binyam Mohamed, the guy the Morracans tortured at the UK's behest, discussed in previous post. (Re: sliced penis.)

The ACLU's background on Mohamed:

"In July of 2002, Ethiopian native Binyam Mohamed was taken from Pakistan to Morocco on a Gulfstream V aircraft registered with the Federal Aviation Administration (FAA) as N379P. Flight and logistical support services for this aircraft were provided by Jeppesen Dataplan, Inc. In Morocco, Mohamed was handed over to agents of Moroccan intelligence who detained and tortured him for the next 18 months. In 2004, Mohamed was rendered to a secret U.S. detention facility in Afghanistan.

Flight and logistical support services for this aircraft, a Boeing 737 business jet, were also provided by Jeppesen. In Afghanistan Mohamed was tortured and inhumanely treated by United States officials. Later that same year Mohamed was rendered a third time by U.S. officials, this time to Guantánamo Bay, Cuba where he is presently (on hunger strike)."

The NYT:

"In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s 'extraordinary rendition' program, in which terrorism suspects were taken secretly to other countries and tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could present a threat to national security and relations with other nations

President Obama had harshly criticized the Bush administration’s treatment of detainees during the campaign, and has broken with the previous administration on such questions as whether to keep open the prison camp at Guantánamo Bay, Cuba. But a lawyer for the government, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the panel of 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.

'The change in administration has no bearing?' she asked.

'No, your honor,' he said once more. 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 . . .

Ben Wizner, a lawyer for the A.C.L.U., told the judges that many of the facts that the government is trying to keep secret are scarcely secret at all, since the administration’s rendition program and the particulars of many of the cases have been revealed in the news media and in the work of government investigations from around the world. 'The only place in the world where these claims can’t be discussed,' Mr. Wizner said, 'is in this courtroom.'"

Last Thursday, an NYT editorial wrote that this case was the first test of OHB's commitment to restoring the rule of law:

"The Bush administration’s claim is that the 'very subject matter' of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.’s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

It is also contrary to Mr. Obama’s stated views. To put them into action, Mr. Holder should immediately ask the court for time to rethink the government’s position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets."


Full film here.



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