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“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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