The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, "he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death."
Mohammed is, as he should, suing Boeing for flying him to Morocco to be tortured. George Bush tried to block the suit, under the theory that it would compromise "state secrets." I know of no single area where we need to see more change, more departure from the past eight years, than in our government's craven embrace of torture. In this case, Obama, for now, disagrees:
During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
"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," 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.
I'm not one of these people who was about to scrutinize every cabinent pick Obama made to measure their exact lefty quotient. I don't believe in all of this "right wing of the Democratic party" talk. But implicitly supporting people who would take a razor to man's genitals, is, by the lights of Obama's own campaign rhetoric, disgraceful. Andrew thinks we should slow down, given that we don't know how it all will shake out. I think there may be something to that. But I also think there's something to raising the volume, to making it sure this doesn't slip through the cracks while the country is focused on the economu.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
I'm really hoping this story doesn't fall through the cracks...
I think the Obama torture watch is such a good idea. More journalists should stand in solidarity against allowing this issue to be minimized.
It is important for journalists to hold public figures accountable for their decisions to the public, regardless of what their PR teams would like to focus on.
We cannot throw US cooperation with people being tortured down the memory hole. Its a despicable practice, we are showing callous indifference, and an uncaring arrogant attitude.
TNC,
While I agree his treatment is disgraceful, the government needs to carefully examine the case to make sure no state secrets are indeed leaked out. Holder has only been in for a week and they're trying to sort through the massive guantanamo cluster fuck at the same time (they weren't even keeping organized files on their detainees).
Furthermore, this case could contain information that could out overseas operatives or potentailly compromise international diplomatic efforts.
I'm for giving them some time to make a reasoned decision on this. Now if in several weeks their position does't budge, I'll be howling with you.
I think I'm with Peter. If we have an abundance of caution because something in this case would affect security, or they need to understand it, that's one thing.
But I voted for Obama with torture as a major issue, and in effect a blanket amnesty over any torture that happened under Bush seems the sort of nicety he should have mentioned. We should not torture anymore; good. Do we still cover up prior torture? Dismiss court cases for illegal torture? No, that's not what I voted for.
But the government didn't ask for more time. They're seeking to actively dismiss the case by putting forth the "state's secrets"-claim. If they merely wanted an extension, they could have asked for one.
As usual Greenwald has an analysis worth checking out here.
Whether or not the state secrets doctrine is being properly applied to this case, the case ought to be dismissed and the plaintiff and his attorneys sanctioned for bringing it.
The plaintiff claims he was abducted by the Government and sent by the Government off to be tortured by a foreign country. I will assume for purposes of this comment that the allegations are all true. Why then isn't the plaintiff suing the Government? Answer: because there is a large and well founded body of law that says he can't.
What this case is all about is trying to get around that law by suing the company that was working for the Government. The inevitable result of allowing cases like this is that the Government will have to indemnify its contractors against the risk of being sued for carrying out Government policy; in other words, it will be backdoor way to accomplish what the law forbids, namely, suing the Government. If the judge had his wits about him, he would see through the subterfuge and dismiss the case.
Excuse me, but since when are there laws on the books that immunize companies from breaking the law even at the government's behest?
Outside of the FISA amendment that grants telecomms retroactive immunity for illegal wiretapping, what law says that companies that are complicit in unlawful acts (e.g. torture) are not subject to prosecution?
If we acknowledge that torture is a crime, then it follows that any company that assists is criminally liable.
What 'well founded body of laws' are you citing, DBL?
thank you for bringing this up. I'm hoping Obama truly is against torture, but by keeping teh volume up I think we raise the odds.
Cas:
A couple of points: First, it is black letter law, dating back centuries, that the United States is immune from suit for money damages unless it consents to be sued. That consent can only be granted by Congress in legislation. It cannot be granted by the President or subordinate executive officers. There are many such laws on the books, but I'm not aware of any that authorize suits against the Government for the actions of the CIA. If there were, the plaintiffs here would surely have sued the Government, which has much deeper pockets than the defendant companies.
Second, I could be wrong about this, but my understanding of the allegations here is not that the defendant company or any of its employees tortured anyone, but only that they scheduled flights for the CIA as part of a larger contract under which it made lots of travel arrangements.
I hope this clarifies things for you a bit.
The number one reason I supported Obama in the primaries is my belief in his rejection of the unitary executive bullshit that was out of control over the last eight years. I thought he understood the extent of the overreach, and I didn't trust Clinton to not take those shiny new rules out for a spin. (I live in Texas; those were my only two choices by the time voting rolled around.)
When Boeing defends itself, it will be able to say, hey, we did what any patriotic company would do after 9-11; the government asked us to serve and we served. That sounds like a fairly compelling argument to make to a jury.
This decision by the Obama administration was flat out wrong, and it cuts to the very heart of the reason I supported him for president. No question, I still would have voted for him in the general, given the other choices. But made calls, knocked on doors, given money, hosted house parties, not so much.
If this is all we were going to get, maybe we should have just nominated Clinton.
@cas,
I made my post then made my way to greenwald for my daily reading. I recant my previous statements.
I'll have to look into your first point, DBL. Other countries have already paid compensation to victims of the CIA's extraordinary rendition program (see: Maher Arar), but obviously not our own gov't so I'm sure there's probably some validity in it.
As to your second point, the suit contends that the company knew what the flights were for and were not only complicit, but actively involved in covering up what the government was doing (e.g. filing false flight plans). These actions are illegal under U.S. and international law.
Boeing profited from assisting in demonstrably illegal activity. Is that under debate? Can the U.S. government order a private entity to commit illegal acts? (If it could, there wouldn't have been a need for the FISA retro-immunity deal.) The position of the ACLU is a vociferous no. And I think there are many people who agree. The government can't be above its own laws.
@sarah m and @Curtis,
No doubt about it, its issues like these and his stance on FISA where Obama needs to be pushed the hardest.
And we should be unapologetic about it. The strictures of power are such that only intense mass displeasure / disapproval can remove any excuses Obama could come up with for allowing some business as usual to slide by the news cycle and his support. Or from another perspective, it SUPPLIES him with an excuse--among the elite levels of power, he can argue "Look, this is what I have to do because the people demand it."
Who here believes LBJ would have ever devised the Great Society without that kind of populist pressure breathing down his neck? Or the same for FDR? If Obama is to be the great President he could be, he needs people to take that same enthusiasm that got him elected and use it to make him live up to his campaign promises and philosophies.
@ Juba
word
"FDR was, of course, a consummate political leader. In one situation, a group came to him urging specific actions in support of a cause in which they deeply believed. He replied: I agree with you, I want to do it, now make me do it."
CAS,
You don't approve of the Government's policy. That's fine. Your candidate won the election and now you want to pressure him to change the Government's policy. That's fine, too, that's how democracy works.
What's not fine is bringing a suit against a Government contractor which was hired to, and did, carry out Government policy. That's both an end run around the law of sovereign immunity and a backdoor way to change Government policy. That's not how a representative democrary works or should work. It's dishonest and corrupt.
Your candidate won. Convince him to implement the policies you want. Convince other voters to pressure him along with you.
But suing a government contractor for making travel plans for the CIA - and filing the flight plans that the CIA asked it to file - is just wrong. If I were the judge I'd dismiss the case and sanction the plaintiff's attorneys.
I've read Greenwald and now I am more confused. I actually agree with DBL that the court case does not make a lot of sense in the context that one cannot sue the government, and suing the civilian contractors seems completely the wrong approach. Boeing doesn't know what the CIA is doing on its various flights. (I would hope.) The problem is with government actions, and resolving it through the courts and a private subcontractor doesn't get at the problem. In this model we deal with government malfeasance only when it hires a civilian subcontractor for some aspect of the job. (Can we sue the companies that did the laundry of those committing atrocities of war? And if so, that will be enough? The only redress?)
But the Bushies' secretizing of everything in sight was a bad thing, and dismissing the suit on those grounds does not address the above issue at all. If one can't sue Boeing, there should still be a lot of declassifying and light shining. We abducted German car salesmen; that needs to be openly acknowledged and the rest we don't know about, that was done secretly in our names. We choose our government; we bear a responsibility for what it does.
One of the enabling aspects of the Bush administration, were his supporters being unwilling to take him to task over issues. It was always "don't criticize our president" Let's not make this mistake with Obama. It will make him a better president if his supporters aren't constantly apologizing for his actions.
It is my belief that policy develops its own inertia. The policies put in place after 9/11 by the previous administration, whatever their respective validity are now part of the vested interest. Closing gitmo was an important step towards an honest evaluation of the previous administration's policy.
However any belief that this current administration is going to stop the use of torture on a dime is crack-pot crazy. The lower-level un-elected beauracracy that implimented previous policy is as much of a force in questions of torture as the administration itself. Direction is given by higher-ups, when it comes to actually changing policy the lower level administrative types are the ones who actually have to impliment what the administration decides. Policy doesn't change on a dime.
For example Truman integrated the armed forces in 1948, the last use of a segregated unit in combat was in 1950. Sometimes changing policy takes time.
muzzyology: What's that quote from?
I think this is probably the dynamic that's in play with Obama. He certainly stressed enough during the campaign that we the people needed to organize for change, and that electing him wasn't going to be enough.
So, let's make him do it:
Contact the White House.
Contact the Justice Department.
Contact Patrick Leahy to urge him to re-introduce his bill that would limit the state secrets privilege. When the bill is introduced, urge your own senators to co-sponsor. While you're at it, ask them to support Sen. Leahy's proposed truth commission.
@ Jen R
A. Philip Randolph was a legendary labor organizer and civil rights leader. He organized the Brotherhood of Sleeping Car Porters, the men who tended to the overnight guests on the sleeper cars that Pullman built. While the porter positions were better-paying than many jobs available to African Americans at the time, there were still injustices and indignities. The common practice, for example, was to call the porters "George," regardless of their real name, after the owner of the company, George Pullman. Thousands of porters sought improvements through collective bargaining. (Ironically, after Pullman's death in 1897, the Pullman Co. was run by Abe Lincoln's only surviving son, Robert Todd Lincoln, until the mid-1920s.) Randolph's organizing struggle took 12 years, starting in 1925 and going through the economic collapse of 1929 and into the Franklin Delano Roosevelt administration.
Harry Belafonte recalled in an interview with Tavis Smiley recently a story he was told by Eleanor Roosevelt. She related a public event when her husband, FDR, introduced Randolph and asked him, Belafonte recalled, "what he thought of the nation, what he thought of the plight of the Negro people and what did he think ... where the nation was headed." Continuing the story, Belafonte recounted what FDR replied upon hearing Randolph's remarks: "You know, Mr. Randolph, I've heard everything you've said tonight, and I couldn't agree with you more. I agree with everything that you've said, including my capacity to be able to right many of these wrongs and to use my power and the bully pulpit. ... But I would ask one thing of you, Mr. Randolph, and that is go out and make me do it."
This story was retold by Obama at a campaign fundraiser in Montclair, N.J., more than a year ago. It was in response to a person asking Obama about finding a just solution to the Israeli/Palestinian conflict. After recounting the Randolph story, Obama said he was just one person, that he couldn't do it alone. Obama's final answer: "Make me do it."
That's the challenge.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/20/ED3M15E3UD.DTL
Was Mohammed a terrorist? I don't know, but given that he was captured with a fals passport, it seems likely. Did he deserve torture? Did the torture result in useful information? Since the whole point of the war on terror is the protection of freedoms, I think we can deal with the first one pretty easily - no is the answer. The second is harder to know, but I doubt it.
It is shameful that the present US government has acted to block the release of evidence of his torture, it is equally shameful for me as a British citizen that our government caved in to US pressure so as to prevent the evidence being released by the courts here. A line needs to be drawn underneath this torture, and this requires that those responsible both here and in the US be punished for their crimes under British and US law. Nothing else could come close, the idea of 'truth and reconciliation' for a secret war involving no more than a few hundred people is silly, especially given that the war on terror will continue whatever we do. The one thing to be sure of is that from now on we shall fight this war the right way.
re comments claiming that you can't sue government agents if they torture you, this is simply not true and I can't fathom where you people are getting these notions from. Lawsuits are brought against the police and government agents all the time for excessive force and violation of constitutional rights. If what these commentators were saying was true, we'd be living under a dictatorship where the government could just do anything to you and get away with it.
@nazcalito
It's a very different thing to sue municipal governments and the federal government. And yes, the law is as DBL describes it, the government cannot be sued unless it agrees to be sued. There are probably lots of laws on the books allowing lawsuits over this and that, too.
But if the Bush administration taught me anything it's that the quest for justice must be won, first and foremost, politically, not legally.
This same principle is why I want another vote on gay marriage in CA, not a nullification by a court.
But implicitly supporting people who would take a razor to man's genitals, is, by the lights of Obama's own campaign rhetoric, disgraceful. Andrew thinks we should slow down, given that we don't know how it all will shake out.
Dude, don't talk about slicing a man's penis in one sentence, and then, wondering "how it will all shake out" in the next.
I think the most logical reason Obama is persisting in this argument is because he wants to LOSE. Withdrawing the argument does not establish precedent. An adverse decision does. Getting a published decision that limits the doctrine's use handcuffs the next administration who would try to abuse it.
Obama is a constitutional law professor. He knows how the game is played. Give the man a chance, he pulled plenty of equally clever moves in the campaign and, well, we all know how that worked out.
Isn't the fundamental legal/Constitutional issue here is whether the state secrets privilege can be applied to an entire case or only to specific documents or other evidence which actually contain state secrets?
(IANAL, but...) as I understand it, the Bush DoJ maintained that once the Executive has invoked the state secrets privilege and the courts must simply dismiss the case in question. Historically this is not how the privilege has worked—it was invoked to block the introduction of specific evidence or testimony which would reveal state secrets. It is this unprecedented expansion of the scope of the state secrets privilege, not the state secrets privilege itself, which Glenn Greenwald, the ACLU, et al. find so objectionable.
(Let's leave aside, for the moment anyway, the question of whether there were ever any legitimate state secrets in danger of being disclosed were this case to come to trial.)
I would suggest that everybody look at the Wikipedia pages for "sovereign immunity" and "state secrets privilege", as well as the other interesting results of Google searches for those terms.
Peep: http://en.wikipedia.org/wiki/Sovereign_immunity
Peep: http://en.wikipedia.org/wiki/State_Secrets_Privilege
Both are highly debatable doctrines that show the tension between constitutionalism and the common law, and they cut to the heart of the concept of checks and balances. In the matter of keeping secrets for national security (so different from national defense), where "the best lack all conviction, while the worst are full of passionate intensity", this is not good. At a time when so many are scared of terrorists, scared out of their wits, this is not good. "Pump up the volume" indeed, because we are dealing with an area of the law where we will otherwise be forced to rely on the integrity of a handful of specific people with a lot of power.
"Andrew thinks we should slow down, given that we don't know how it all will shake out. I think there may be something to that. But I also think there's something to raising the volume t..."
"We should slow down"? Who's we? And who says we're going fast? Andrew? Understand exactly what you're saying, Ta-Nehisi, before you say it. Slow WHAT down? This is disgraceful and you (and whomever "WE") is have decided that the boy-oh-boy we're sure throwin a lot at poor Obama. What narrative are you writing? This is plain wrong. If you're going to make a statement, MAKE one. Don't navel gaze, or gaze at ANDREW's navel to gauge political pressure. This isn't a football game. You're not a politician. You're a writer and I am guessing would like to call yourself a journalist. Call something out when it's wrong. Don't insult the facts of the case by STRATEGIZING on behalf of Obama.
I agree with the guy above who was offended by your juxtaposition of slicing genitals with your casual "how this will shake out" conclusion.
Sorry if this is harsh, I am just insulted by your analysis that is at first outraged and then unbelievably dismissive. It reeks of someone who doesn't really care.
wait... suing boeing for flying him to be tortured? I don't know the ins and outs of this case, but boeing generally isn't in the business of flying planes. They make planes.
It seems kind of odd that the CIA would contract with a massive multinational like boeing in order to fly secret missions to black sites.
Is that actually what happened?
Right now from what I'm reading it sounds like their suit is more comparable to suing Ford after being run over by a drunk driver.
It seems kind of odd that the CIA would contract with a massive multinational like boeing in order to fly secret missions to black sites.
Is that actually what happened?
Yes. At least that is what is alleged in the lawsuit (and if it were ever allowed to come to trial, we might find out if the allegations are true.
The defendent is Jeppsen Dataplan, which is a subsidiary of Boeing.
redicoulos article , i can see simply another propaganda, website, working and getting money from other like Algeria to damage the US-historic - ally Morocco, why the torture those people? to get the truth, if you don't agree go to hell, I am sure that you didn't lost any memeber of your family in 9/11, I SAY JUST ONE THING THANK YOU MOROCCO
I think the problem is a lot of people on the left basically expect Obama to govern the same way Bush governed, based solely on ideology.
The assumption here is that the state secret claim by bush was soley about blocking the lawsuit and not about legitimate concerns. That may be true, but the DOJ can't make decisions based on that assumption. You have Glen Greenwald saying that Holder not having time to review the privilege claim, is just an excuse. Holder probably doesn't have a desk in his office yet. The problem is Greenwald doesn't seem to think the claim should be reviewed. Instead it should be waived on the basis of the "Bush Always Wrong Principle". I agree with Andrew Sullivan when he wrote, "government ain't blogging". The DOJ can't operate like that. Like one admin offical said, "If you decide today precipitously to waive this privilege, you can't get it back. If you decide to assert it, you can always retract it in the future."
I know he's your colleague and all, but holy frack did Ambinder get sonned by Glenzilla...
Actually one of the worst Glenzillaings ive ever seen.
http://www.salon.com/opinion/greenwald/2009/02/11/state_secrets/index.html