This week in San Francisco you’ll be hard pressed to discern the Obama administration from its predecessor. This case involves five men suing a Boeing subsidiary, Jeppesen Data Plan, claiming that it was instrumental for their extraordinary rendition and repeated torture during the Bush administration. Directly after the suit was filed, the Bush Justice Department invoked the state secrets privilege, arguing that the case needed to be dismissed because of its risk to national security. A lower court judge agreed. Naturally, the plaintiffs appealed.
Arguments were heard before a panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit. Surprisingly, lawyers from the Obama Justice Department said they were adhering to the state-secrets defense. Shrill howls of condemnation from civil liberties advocates are already being heard loud and clear. In the course of the campaign, President Obama had pledged to undo the Bush administration's secretive policies; yet, given his first opportunity to reverse policy, the President has embraced his predecessor's approach. The Attorney General Eric H. Holder, Jr. and the Justice Department decided that no part of the case could be litigated without risking a national security leak. They could actually be right, but who can say because all of the case’s relevant issues are based on classified information. Consequently, if the executive branch institutionally errs on the side of nondisclosure then the judicial review in such cases becomes so circumscribed that it is impossible for justice to be done.
Thank God for Teddy Kennedy, my friends. Sen. Edward Kennedy (D-Mass.) has reintroduced legislation that will theoretically protect the president's authority to defend national security interests while giving plaintiffs a fighting chance in court. This bill will allow judges to privately review information which the government asserts is too sensitive for publication or public dissemination. A judge would also own the ability to appoint a specialist with the security clearance and intelligence expertise to perform the review. This would allow a plaintiff's lawyer (once again with appropriate security clearances) to review information the court deemed not having fallen under the state-secrets claim. Material considered too sensitive for direct review could, Senator Kennedy believes, be made available in an unclassified summary. At the same time, judges could still choose to exclude evidence or dismiss the case. Both sides would then have the right to immediately appeal.
The issues surrounding rendition and torture are too numerous to discuss here. Too many errors of omission and arrogance were committed by the previous administration in the name of Homeland Security. I am not one of those whose mouths froth at the idea of torture utilized as an instrument of statecraft. Complex issues ought not to be discussed in the foggy gray haze of battle between black and white absolutes. I will not, however, stand by while any administration attempts to abrogate citizen rights without due process.
It will serve the public for us all to keep up our vigilance. Mr. Holder animatedly insisted that he would carefully review the executive branch's use of the state-secrets doctrine to ensure that it was being invoked in accordance with law during his confirmation hearings. The democratic process needs to be kept in action. The Obama administration has to walk its talk and not attempt any sleight of hand to mask or hide any unsavory episodes from the public. We trust that Mr. Holder will not be as knee-jerk or blithe about invoking the shield as previous administrations. Trust in matters as important as this one will not be easily forthcoming from any concerned side.