President Obama has failed an early test of his commitment to break with Bush administration policies by blocking the public disclosure of descriptions of torture and abuse suffered by a terror suspect. It's hard to tell if this is just a wrongheaded effort to protect the Bush administration from embarrassment or if the Obama team is still just getting its footing. Let's hope it's the latter.
Binyam Mohamed was captured by U.S. and British intelligence officials in Pakistan in 2002, rendered to Morocco and is now a prisoner in Guantanamo Bay.
All the charges against Mohamed have been dropped. He says that confessions were tortured out of him. But a statement provided by the United States to British intelligence about Mohamed's mistreatment won't be made part of an opinion by the British High Court because the Bush administration threatened to end intelligence sharing if it was included. And the Obama administration is going along with that position.
How is it that Obama, who made a dramatic public showing of reversing Bush administration's terror suspect treatment policies in his first days in office, would continue to use faux claims of national security to keep the public in the dark about the abuses inflicted on prisoners?
According to the British court, the disclosure would have involved "seven very short paragraphs amounting to about 25 lines," summarizing reports on Mohamed's treatment by the United States. The passages, the court said, would have given credence to Mohamed's allegations.
There was no danger of compromising intelligence information, the court noted, as all names had been redacted from the documents.
This is not the way to fulfill a campaign promise to return us to the rule of law. What we did to Mohamed needs to be publicly acknowledged. Moving on does not mean covering up.
Another test comes on Monday, when oral arguments are scheduled in a case involving President Bush's rendition policy. The five men who brought suit, including Mohamed, were seized and removed to countries known to torture prisoners or to overseas secret CIA-run prisons — a policy that CIA director nominee Leon Panetta vowed to end in his confirmation testimony on Thursday. His claim the next day that he didn't know if rendition for the purpose of abusive interrogation was Bush administration policy is hardly credible and once again suggests Obama administration waffling.
The litigants suffered medieval tortures, including one who was deliberately cut all over and then had stinging liquid poured into his wounds. They are suing a subsidiary of the Boeing Co., Jeppesen Dataplan, that allegedly arranged the flights.
The 9th U.S. Circuit Court of Appeals is being asked to rule on the "state secrets privilege," a tactic that the Bush administration widely employed to avoid answering serious allegations of lawless conduct.
The Bush administration would simply claim that the suit jeopardizes "state secrets" and, like magic, the case would go away. The case Monday is an appeal of a federal district court's decision to dismiss the torture victims' suit on state secrets grounds.
We'll have to see whether the Justice Department under Attorney General Eric Holder continues to use this legal maneuver to avoid judicial review of the outrages against humanity committed during the Bush era. So far, the department has not given any indication it will alter its posture in the case.
When our government devastates the lives of human beings and acts in direct contravention of our laws and Constitution, it should not be allowed to hide from justice behind a shield of national secrets.
Federal judges are perfectly capable of reviewing classified evidence, and there are long-standing procedures to guard the nation's secrets in lawsuits. To suggest otherwise means that the executive branch can act with impunity whenever foreign intelligence matters are at issue.
In the Senate, the State Secrets Protection Act would end the blanket immunity the executive branch now claims under the state secrets privilege, and it would be comforting if Obama would throw his support behind it.
Obama is saying all the right things to put America back on the path of right. Now he has to follow up the talk with the walk.