More on the state secrets privilege

People are definitely still talking about this, as they should be. The Atlantic’s Mark Ambinder reports that:

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn’t yet have a full picture of the intelligence methods and secrets that underlay the privilege’s assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

“If you decide today precipitously to waive this privilege, you can’t get it back,
an administration official said. “If you decide to assert it, you can always retract it in the future.”

But I don’t buy it. Binyam Mohamed’s case is a real one, not some phony test-case for Obama to experiment with. If the DOJ was still investigating the issue, they should have asked for an extension or a stay in the trial (and we can be sure that that Ninth Circuit Judge, who was evidently shocked at the fact that Obama hadn’t changed anything, would have been just fine with granting such an extended study break). Instead, the ongoing investigation was somehow bent into a ridiculous rationale for proceeding with the gross perversion of justice that is throwing out an entire case before any part of it is heard. If that really is the reason for this misuse of the state secrets privilege, then Obama’s DOJ is just as Bushy as Bush’s. “Oh, we don’t know about this yet, so we’re just going to arbitrarily abolish due process rights for this plaintiff, and then maybe we’ll figure it out later.” It’s like a college professor having not quite finished writing the first midterm by the time class started, and then deciding to fail the whole class because of his own tardiness.

Binyam Mohamed was snatched up and tortured under the US's rendition policies.

Binyam Mohamed was snatched up and tortured under the US's rendition policies.



 Sullivan said that “most Americans out there are willing to give him time,” and I agree; I don’t want him to rush into these important issues without proper forethought and deliberation. But Obama didn’t ask for more time. He just directed the DOJ to apply the irresponsible and un-American Bush’s state secrets interpretation to get this messy case out of the way. This is a dangerous precedent, and I think that we should be careful about trying to find ways to excuse Obama’s bad decision. Don’t get me wrong; I’m still a huge Obama supporter, but he screwed up on this one. And Binyam Mohamed will never have his case heard in an American court as a result. 

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