In early February, President Obama sought another imperial power before the United States Court of Appeals for the 9th Circuit in the case Mohammed v. Jeppesen Dataplan. The complaint alleged that the plaintiffs had been seized by American personnel, taken to airports, stripped, blindfolded, shackled to the floor of a Gulfstream V, and taken to destination countries for torture and harsh incarceration. The District Court dismissed the complaint because then-President Bush and Vice President Cheney argued that state secrets would be exposed if the case were litigated. During oral argument before the 9th Circuit, Obama echoed the state-secrets argument made by Bush and Cheney. Similarly, the president who promised "change" is wielding the tool of state secrets in aiming to dismiss, without the gathering of evidence, challenges to the National Security Agency's Terrorist Surveillance Program, which entailed warrantless phone or e-mail interceptions of American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. This defense has failed before Judge Vaughn R. Walker in early rounds of the litigation. And, again, the state-secrets privilege is the administration's response, if ancillary to a defense of retroactive immunity, in a brief filed last week to the efforts of the Electronic Frontier Foundation to sue Bush administration officials for the NSA's wiretapping...In an interview with TPM, David Cynamon, lawyer for four Kuwaiti Guantanamo prisoners, fleshes out the issue, saying this isn't just a matter of abusing state-secrets privilege:
Clearly, there's serious cause for concern. It's not only a matter of transparency (which does have genuine limits, which we can discuss some other time), the rights of detainees, and civil liberties. It's also a matter of upholding the checks and balances at the heart of any healthy democratic government. Even if the Obama administration has no bad faith intention of maintaining such Bush administration violations, the current administration has certainly discovered by now just how bad the institutionalized war crimes and constitutional breaches have been. Likely worse than the public will ever know or understand. The Obama administration may very well be tempted to try to control the disastrous fall-out through ongoing stone-walling.
Cynamon detailed three specific areas in which the government is stonewalling. First, he said, it has taken an unduly long time to produce declassified evidence. Indeed, in February, Judge Colleen Kollar-Kotelly ordered one government lawyer removed from the case for failing to comply with repeated orders to make the evidence available. In a court document, the judge wrote that the lawyer's "compliance was not optional," and added that the court "has serious concern about counsel's ability to read and comprehend its orders."
Second, Cynamon said the government is resisting requests for discovery, slowing things down by forcing defense lawyers to go to court at each stage. "Across the board they basically say no," he said. "It's whatever bullshit excuse - 'it's too burdensome, its not relevant, its beyond the narrow...."
But the government's "most egregious" stonewalling tactic, said Cynamon, parallels the misconduct famously displayed by the prosecutors in the Ted Stevens case: It has consistently failed to produce exculpatory evidence in its possession, as it is legally required to do. "They have completely, in my view, ignored that obligation," said Cynamon. "We have come across a number of items of exculpatory evidence that the government should have given us and didn't."
If Greenwald, Fine, and others are accurate in their criticism, then the Obama administration has already set up at least its Justice Department on the wrong side of history. But is the criticism really accurate? ScotusBlog suggests that there's more here than meets the eye.
More later as this unfolds.