Yesterday, here in San Francisco (site of the 9th Circuit), the Obama administration made it clear that they will continue to abuse the state secrets privilege, just like W. The issue is this: after 9/11, the Bush admin directed its lawyers to disallow civil cases en toto before they were tried at all if any of the evidence may be subject to the state secrets privilege. This is a departure from the normal use of the privilege, which is to challenge and strike specific pieces of evidence from the trial, and NOT prevent it from going to court at all.
A new case filed by a bunch of plaintiffs against a business that ran part of the Bush admin’s rendition programs has now been nixed by Obama’s lawyers, using the same false rationale as Bush. The pronouncement yesterday in the 9th Circuit Court straight-up surprised the judges:
“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,” [government lawyer] Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” 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.
Glenn Greenwald is pissed, understandably, and has a few great posts up about the case, in much more detail (and much more coherent – the guy is awesome) than I can give. He includes a really interesting response to people defending Obama’s new position (specifically Mark Ambinder) by saying “it’s ok, because in general Obama’s pretty cool and we trust him, so we can let this slide”:
We don’t actually have a system of government (or at least we’re not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely. That, by definition, is how grateful subjects of benevolent tyrants think (“this power was bad in Bush’s hands because he’s bad, but it’s OK in Obama’s hands because he is good and kind”). Countries that are nations of laws rather than of men don’t rely on blind faith in the good character of leaders to prevent abuse. They rely on what we call “law” and “accountability” and “checks and balances” to provide those safeguards — exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.
Greenwald’s articles are excellent through and through, and deserve a full read. In the meantime, what to do? I voted for justice and due process, not this.