“State Secrets” Swallow the Constitution
I largely echo what Adam, Glenn, and Nick Baumann have to say about yesterday’s disgraceful 9th Circuit ruling upholding the Obama administration’s efforts to shield the government’s arbitrary-rendition-for-torture program from scrutiny. It’s worth remembering what’s at stake here. The majority opinion, before sadly eating the oysters, details some of the grotesque abuses our government is responsible for. To choose one example:
Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”
I should note here that in a brief, remarkable concurring opinion Judge Carlos Bea argued that even these allegations should be considered state secrets. Under this logic, the use of torture is inherently not subject to legal review because any interrogation techniques that might be used against suspected terrorists are state secrets. The most depressing thing is that this authoritarian Catch-22 differs from the majority’s reasoning more in degree than in kind.
The bare majority of the 9th Circuit deserves all of the criticism it gets for this decision. Shielding the government from any accountability for arbitrary detention and torture before even giving the alleged victims a day in court is a grotesque abdication of basic judicial responsibilities, and indeed despite the pose of deference represents “judicial activism” in the most pejorative sense. As Judge Hawkins — not exactly a staunch libertarian — wrote in his dissent, “The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now presents a classic illustration.” This case represents the judiciary failing at its most fundamental responsibility — ensuring that state violence be applied lawfully.
But we shouldn’t forget who bears the most responsibility — George W. Bush, whose administration performed the renditions, and Barack Obama, whose administration has worked hard to ensure that Bush’s victims are denied their basic due process. There’s no way around the fact that Obama has been a bitter disappointment on this issue, and on this issue he can’t blame James Madison for tying his hands.
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Of all the screwed-up things the Obama administration has done, this is the one that really drives me insane. For anything else – healthcare, the wars, tiptoeing around the banks, whatever – you don’t need to look far in the vicinity of Team Stupid to find a reason, however poor, that they took the position they did. But f*cking torture? What is there to be gained in defending torture?
I think it’s important to understand that at its core this isn’t actually a defense of torture. This is a defense of the government’s ability to torture people and then cover it up because it’s a state secret.
If it were just defending the use of torture that would be absolutely horrible, but it’s actually farther reaching than that. If the government can torture people and then stifle their due process to redress the issue by stamping the phrase “state secret” on it then there really isn’t anything that the government can’t do.
As for why Obama would be interested in defending this – why has every President for the last, oh, forever defended every horrible thing that his predecessor did as far as expanding Executive Power and quashed investigations into their wrongdoing? Partly because they want that power for themselves and partly because they know that someday they’ll be out of the job and they don’t want to be the one who broke precedent and left their successor the tools to have them imprisoned. The position protects itself – I think Cheney knew that better than most and that’s why he pushed W to go farther than most.
Paranoids like myself suspect that presidents are also reminded from time to time that some of their predecessors have met untimely ends, and that such demise might be contagious.
To be consistent with my beliefs, I now have to hope to someday see both George W. Bush and Barack H. Obama in the dock at The Hague someday.
From the Geneva Conventions needs to come the Geneva Convictions. Throw in Putin and you’ve got a great example to the rest of the world.
Realizing what this country has become makes me nauseous, and more resolute to find a way out. No matter who is elected in this system, such atrocities to our ideals will increase in idea and practice.
Obama truly has done nothing but continue the worst Bush atrocities. I, too, would look forward to convictions in the Hague, but we all know that is only pure fantasy.
Despite his accomplishments regarding health care reform, it is unfortunately the case that Obama does deserve to be tried for crimes against humanity. But if it ever happened, it wouldn’t be in the way you would hope.
“That’s not what justice is,” the colonel jeered, and began pounding the table again with his big fat hand. “That’s what Karl Marx is. I’ll tell you what justice is. Justice is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garroting. That’s what justice is when we’ve all got to be tough enough and rough enough to fight Billy Petrolle. From the hip. Get it?”
That rug in the Oval Office must be getting mighty lumpy with all the shit Obama has been sweeping under there. Everyone knows you aren’t a retard. You aren’t gonna get the slack Bush did.
Who slipped them judges a twenty?
U.S. courts have a history of forgetting all about the constitution when it comes to national security, aka the Great War Against Whoever Is Pissing Us Off & Scaring Us. It is similar to the manner in which the courts forgot about the fourth amendment because of the War On Drugs.
The only way to live in a country in which the government did not do these things would be to have that country run by elected officials who do not do these things. The only way to have elected officials who do not do these things is to live in a country where the population would not approve of any elected official who does these things.
We do not live in a country like that.
America is largely populated with ignorant, bigoted, and mean-spirited people who have a penchant for violence.
I think it is time to come to terms with the fact that we ONLY torture when there are State Secrets involved. 9th Circuit – QED. We shouldn’t bother those overworked judges with any more of these pointless lawsuits.
i know nothing about judge hawkins, but the guy has just earned my undying respect by pointing out the obvious to his apalling colleagues.
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
[...] “State Secrets” Swallow the Constitution : Lawyers, Guns & Money [...]
I think most of this has the wrong focus.
The reason people can’t get into court after they have been tortured is that our laws make it very difficult to bring torturers associated with our government to book. When the law gives any president loopholes for increasing executive power, it is a lead pipe cinch that they will use them, no matter what their ideological stances. To be blunt, you’d be a fool to do otherwise, especially when there is a coterie of civil rights lawyers out there who will push the envelope as far as they can at every opportunity. These are two sides of the coin.
If we want courts to do the right thing here we need to change the fricking laws. How?
• Bring the anti-torture statute into congruence with the anti-torture convention (we came close on that last year, but the administration balked)
• Outlaw extraordinary rendition all together
• Like Harbury suggests, amend the Federal Tort Claims Act and the Torture Victims Protection Act to include actions by U.S. officials
• Again, Harbury: amend the Alien Tort Claims Act to include a waiver of sovereign immunity.
In short, criminalize torture techniques and cruel, inhumane, and degrading treatment, criminalize rendition, and give torture victims the tools to sue the pants off their torturers.
But, no: everyone wants to use the laws we have and go after the Bushies, most of whom have an OLC get-out-of-jail-free card in their pockets. That simply isn’t going to work as a matter of practical politics or law. So change the laws, then go after whoever violates them. But no more schadenfreude, please.
[...] want to burn a Koran. Naturally, it’s gotten about 1/1000th the media coverage. Do check out this post at Lawyers, Guns & Money for some good analysis, [...]
And then jackasses like Jon Chait bray about how silly it is for liberals to be lukewarm in support for Obama and the Dems.