IT WOULD have been hard to distinguish the Obama administration from its predecessor during a San Francisco court hearing this week.
The case involved five men who sued Jeppesen DataPlan in 2007, claiming that the Boeing subsidiary was instrumental in carrying out CIA missions that led to their extraordinary rendition and torture during the Bush administration. Almost immediately after the suit was filed, the Bush Justice Department invoked the state secrets privilege and argued that the case must be dismissed because of the risk to national security. A lower court judge agreed, and the plaintiffs appealed.
During argument on Monday before a panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit, lawyers from the Obama Justice Department said they were sticking with the state-secrets defense. The howls of condemnation from some civil liberties advocates were predictable and understandable. President Obama pledged during the campaign to undo many of the Bush administration's secretive policies, yet in the first opportunity to reverse course, he embraced Bush's approach. Attorney General Eric H. Holder Jr. and the Justice Department concluded that no part of the case could be litigated without risking a national security breach. For all we know, they are right, but there is little to know because the government's assertions are based on classified information, and even a fresh review from new leadership provides little comfort. The executive branch institutionally errs on the side of nondisclosure, and judicial review in these cases is often so circumscribed that it cannot ensure that justice is being done.
Sen. Edward M. Kennedy (D-Mass.) this week reintroduced legislation that would preserve the president's authority to protect national security interests while giving plaintiffs a fighting chance in court. This bill should be passed soon. It would allow a judge to review in private information that the government asserts is too sensitive for public dissemination; the judge would have the option of appointing a special master with appropriate security clearances and intelligence expertise to perform the review. The judge could allow a plaintiff's lawyer with appropriate security clearances to review information the court deemed not to fall under the state-secrets claim. Information too sensitive for direct review might be made available in an unclassified summary. If even that proved problematic, the judge could exclude the evidence or dismiss the case. Both sides would have the right to immediately appeal a judge's determination.
Mr. Holder averred during his confirmation hearings that he would review the executive branch's use of the state-secrets doctrine to ensure that it was being invoked in accordance with law and not to hide unsavory episodes from public view. We trust that he will not be as reflexive in invoking the shield as were his predecessors. But trust in matters as sensitive as these is not enough, no matter who is president.
Adéu a Nihil Obstat | Hola a The Catalan AnalystDesprés de 13 anys d'escriure en aquest bloc pràcticament sense interrumpció, avui el dono per clausurat. Això no vol dir que m'hagi jubilat de la xarxa, sinó que he passat el relleu a un altra bloc que segueix la mateixa línia del Nihil Obstat. Es tracta del bloc The Catalan Analyst i del compte de Twitter del mateix nom: @CatalanAnalyst Us recomano que els seguiu.
Moltes gràcies a tots per haver-me seguit amb tanta fidelitat durant tots aquests anys.
diumenge, 15 de febrer de 2009
Obama marxa pel camí de Bush
En la lluita contra el terrorisme islamista, Obama difícilment pot fer una política diferent a la de Bush. I es bo que sigui així. És bo pels Estats Units i és bo pel món, encara que no sigui bo per a una gran part dels seus seguidors que, comprensiblement, ara se senten enganyats. No us perdeu aquest editorial de "The Washington Post":
Publicado por NO a les 12:46 p. m.