The Glade 4.0

Torture Tort Terror
Obama uses national security as a cover for violating people's rights.
Jacob Sullum | September 15, 2010

During his presidential campaign, Barack Obama criticized the Bush administration for its excessive secrecy, noting that it had "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." Obama also promised to end "extraordinary rendition," a practice through which "we outsource our torture to other countries."

But last week the Obama administration used the state secrets privilege to block a lawsuit by five former captives who say they were tortured as a result of extraordinary rendition. Although candidate Obama surely would have been outraged, President Obama is for some reason less concerned about abuses of executive power.

"To build a better, freer world," Obama the candidate wrote in a 2007 Foreign Affairs essay, "we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the [practice] of shipping away prisoners in the dead of night to be tortured in far-off countries."

It turned out Obama meant that he, like his predecessor, would seek assurances that detainees transferred to other countries would not be mistreated. After all, why would governments that routinely torture their prisoners lie about it?

Obama's broken promise sheds light on his determination to suppress a lawsuit by five men who sued the Boeing subsidiary Jeppesen DataPlan over its role in helping the CIA arrange prisoner flights during the Bush administration. The lead plaintiff, Binyam Mohamed, is an Ethiopian citizen and legal U.K. resident who was arrested in Pakistan on immigration charges in 2002. He says he was turned over to the CIA, which flew him to Morocco, where he was held for 18 months and subjected to "severe physical and psychological torture."

Mohamed, who was later imprisoned at Guantanamo Bay without trial for five years before being released, says Moroccan security agents beat him, broke his bones, and cut him with a scalpel all over his body, including his genitals, after which they would pour a "hot stinging liquid" into the wounds. His four co-plaintiffs tell similar stories of abuse at the hands of Moroccan, Egyptian, Jordanian, and American officials.

Even if every word these men say is true, the Obama administration argues, they cannot be allowed to pursue their claims because doing so might endanger national security. Last week the U.S. Court of Appeals for the 9th Circuit narrowly accepted this maximalist position, dismissing the lawsuit rather than letting it proceed based on publicly available evidence.

An administration that was truly concerned about excessive secrecy would have waited to see if either side in the lawsuit actually needed privileged information to make its case. Instead Obama, like George W. Bush before him, insisted that the mere possibility was enough to deprive torture victims of a legal remedy.

In May the Obama administration used a similar argument to block a lawsuit by Maher Arar, a Canadian engineer whom U.S. officials erroneously identified as a member of Al Qaeda and sent to Syria, where he was imprisoned for a year and repeatedly beaten. Although the details of Arar's case have been public for years, Acting Solicitor General Neal Katyal nevertheless urged the Supreme Court not to hear his appeal, citing "significant national security concerns."

Specifically, Katyal worried that addressing Arar's claims would require courts to "review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning petitioner's likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria consistent with [the Convention Against Torture]."

Given President Obama's plans to continue extraordinary rendition under a different name, you can see why he'd rather not delve into questions like these. But candidate Obama told us to be wary of presidents who use national security as a cover for violating people's rights.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

It kills me deep inside to know that many libertarians voted for Obama because they honestly thought he'd be better on these types of human and civil rights issues.

I'm curious what people think about why it is that the courts have dismissed the cases?

Each case has its own reasoning, of course, but as a big-picture explanation, I'd say that the courts' decisions reflect two trends: (i) a shift in the legal/political culture toward more unfettered Executive power generally, and (ii) the adoption of a semi-permanent "wartime" political and legal psychology in response to 9/11.

I voted against him, but I considered his stated positions on these issues as a big consolation prize

I completely agree with this. It's rather frightening.

More unfettered Executive power.

I think this started happening long before 9/11. 9/11 just was the shot in the arm to let the Executive be more overt about it.

Facism is not a school of thought, it is a racial slur.

Dash:

More unfettered Executive power.

and likely result in a Republican sweep in 2012.

He could have the power and not exercise it. Clearly it's going to be a hit on him with his base. What's he getting out of it? Perhaps he'd take a hit as being a candy *** dove if he stopped?

I think that's part of it, but I think it mostly comes down to political expediency. We've been at war for nine years, and we've done a lot of lot of horrible and illegal sh*t in that time. A full accounting in court would likely implicate hundreds of people in both parties and at every level of the security structure, right up to the President himself. The process would consume the political world for years, undermine our ongoing efforts in Afghanistan, prevent the Democrats from accomplishing any major aspect of their domestic policy agenda, and likely result in a Republican sweep in 2012.

My guess is that Obama decided he'd rather do health care.

So let me ask, what is Obama's motive for doing this.

So you're blaming Clinton? *boggles*

He could have the power and not exercise it. Clearly it's going to be a hit on him with his base. What's he getting out of it? Perhaps he'd take a hit as being a candy *** dove if he stopped?