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Padilla v. Yoo: A Blow to the Government

Obama: Holder's Call

Could the Bush administration lawyers who wrote the torture memos really be on the hook, as I suggested Monday (and plenty of their critics have longed for)? President Obama left that door surprisingly ajar today. From his press conference:

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.  I think that there are a host of very complicated issues involved there.

The End of the Necessity Defense

The only way to understand how the Bush administration could have waterboarded two detainees 266 times is to go back to footnote 27 of this 2005 torture memo, which Scott Shane pointed to in the New York Times. It discusses the “unnecessary use of enhanced” interrogation techniques—unnecessary because “although the on-scene interrogation team judged Zubaydah to be compliant elements within the CIA Headquarters still believed he was withholding information.”

The memo only admits to one instance of that kind of break between the agents on the scene and HQ. But since we know that detainee Abu Zubaydah--83 waterboardings in August 2002, right after an earlier torture memo gave permission--gave up his most useful information in the weeks after he was captured, before or possibly immediately after the torture began. And so that "unnecessary" line stands for a much larger disturbing truth: The people ordering the torture didn’t care about how much pain they inflicted for how little gain. Efficacy, humanity—all of this became beside the point. The Bush administration wasn’t really standing on the ground that torture was a terrible means to the virtuous end of saving lives, as it so often claimed. There simply was no necessity defense.

That footnote also demonstrates why if we’re going to investigate or prosecute anyone, it shouldn’t be the agents on the scene. In the wake of Obama’s carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we’d get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them—David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that “those who devised policy… should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9^th Circuit? It would be a start. If you think these memos are good lawyering, then you don’t deserve to be a lawyer. That’s a lesson the bar should desperately want to impart.

Why Obama Stuck With State Secrets

Glenn Greenwald does a great job of eviscerating the lame argument—about how the government is just buying time—in defense of the Obama administration's blanket defense of the blanket state-secrets privilege on Monday. When lawyers want more time, they ask the court for a continuance. When invoked to dismiss a case, as opposed to prevent disclosure of particular documents or other forms of classified evidence, the state-secrets doctrine is the government's big gun for getting rid of lawsuits it doesn't like. Obama and Biden objected to the Bush administration's use of it as candidates, as Dahlia points out. If they'd stuck with that position in court, what would have happened, anyway? The case would have gone back to district court. Jeppesen DataPlan (the defendant in the suit—more of the facts here) would have argued against disclosure of the same documents that the government preemptively blocked access to. There would have been a year or two of wrangling. The judge would have reviewed the documents and, if they're really as sensitive as the government says, kept many of them secret. In the meantime, the less sensitive material would probably have come out in one of a variety of other ways—via congressional subpoena, or voluntary release by the Justice Department, or in another lawsuit.

Why then did the Obama administration stick with state secrets? This makes most sense I think viewed in terms of Obama's perceived need to prove himself to the CIA. After the election, there was the flap over whether Obama should name John Brennan to head the agency, a name he withdrew. Then he picked Leon Panetta instead—the opposite of a CIA insider. If DoJ had abandoned Bush's position on state secrets in the Jeppesen case, CIA agents and officials would have had one more reason to be nervous about the new guy in town.

It's also worth recognizing that this case is a big deal, historically speaking. Litigants haven't ever, as far as I know, successfully sued the CIA (which is what's really at stake here, even if Jeppesen is formally the defendant) over torture, which is what this case comes down to. The state-secrets doctrine has been the government's customary tool for getting courts to dismiss somewhat parallel accusations, like the 1970s suits that followed the revelations about wiretapping that led to the Church Commission.

But you can duly note all of that and still see the Obama administration's move as the wrong one, because of the smothering blanket nature of invoking this privilege in this way, and because doing so seeks to end a discussion about accountability that we should be only just beginning. If we haven't had successful lawsuits involving CIA torture before, maybe that's because we haven't had torture on the scale that the Bush administration perpetrated. Obama has made it clear every time he is asked that he's not eager for criminal liability. If his lawyers cut off the avenues to civil liability as well, doesn't that mean that they've legalized the torture of the past? Yes, their promise not to do more torture and detentions going forward matters more. But it's not the only thing that matters.

State Secrets. Still Secret.

So much for a perfect score. In a piece today, Judith Resnik and I came up with a top 10 list of Bush legal positions that Obama's Department of Justice should drop. No. 5 was the "state secrets" defense, as invoked by Bush lawyers to block a lawsuit by five men who say the U.S. tortured them abroad. The old DoJ argued that the "very subject" of the case—against the private contractor (Jeppesen Dataplan) that flew the men to their foreign destination—is a state secret, and so walled off from any investigation connected to the lawsuit. Today in court, Obama's new DoJ stuck with that line. “The change in administration has no bearing?” Judge Mary Schroeder of the 9th Circuit asked, with apparent surprise. "No, your honor," the lawyer answered.

At the Atlantic, Marc Ambinder shrugs. "Obama certainly never promised Americans that he'd declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever," he reminds us. Well, no. But there's a weird disconnect here, since many of the relevant facts in this case are already known, thanks to reporting by The New Yorker's Jane Mayer and others. As ACLU lawyer Ben Wizner said, "the only place in the world where the facts of these claims can't be discussed is in this courtroom." More crucially, the state-secrets defense doesn't just mean that a judge decides what evidence to keep classified and out of public view. It means that based on the government's say so, no one even gets to open the lid of the box to find out what evidence is inside. Not even the judge. It's a blanket defense designed to halt potentially legitimate claims in their tracks. To add insult to injury, the Supreme Court fashioned it to preserve secrets in a 1953 case—about why an Air Force flight went down in the state of Georgia—in which the government's professed reason for secrecy turned out to be completely bogus. 

As his department's lawyer held the Bush line in court today, Attorney General Eric Holder promised a review of all the government's uses of the state-secrets privilege, "to ensure that is being invoked only in legally appropriate situations." Maybe at some point down the line, that will seem reassuring. But at the moment, Holder's promise plus today's developments in court equals not much.
 

Leahy's Bid for Truth

More on Torture Tapes

I am not sure Mukasey had any choice, Emily. The op-ed in today’s New York Times by Tom Kean and Lee Hamilton, the co-chairmen of the Sept. 11 commission, was a clarion call for just such an investigation. Here you have the bipartisan pronouncement that, in no uncertain terms, both the CIA and the White House obstructed the commission’s work and lied about it: “[G]overnment officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the [sic] greatest tragedies to confront this country. We call that obstruction.”  

Unlike so many of the other Bush-related scandals that have seemed to just dry up or blow over, the destruction of the torture tapes looks more and more like a serious criminal act. If the White House and the CIA deliberately lied to and concealed evidence from the Sept. 11 commission, as well as various trial courts, John Durham, tasked with heading up this investigation, will be looking at very serious charges.  

Good for Mukasey