State Secrets

| Tue Feb. 10, 2009 5:19 PM EST | Scheduled to publish Tue Feb. 10, 2009 2:30 AM EST

STATE SECRETS....In the pre-Bush era — from 1953 to 2000, including the entire period of the Cold War — the government invoked the state secrets privilege about once a year. Since that time, its use has been massively increased, with the government invoking it more than six times per year in the post-9/11 era.

By itself, this is bad enough. But it's not the worst part of the Bush administration's use of the privilege. Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What's more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.

Now Barack Obama is president, and unfortunately he's decided to continue the Bush administration's expansive reading of the privilege. The case involved the rendition and torture of Binyam Mohamed and four other detainees:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

....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.

So Obama is adopting the same expansive interpretation of the privilege as the Bush/Cheney administration, and using it in order to cover up American involvement in torture and rendition programs that have been in the public record already for years and can hardly even be said to be secrets, let alone state secrets that are vital to U.S. national security. This is decidedly not change we can believe in. Greenwald has more.

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