It may well be – to put the best face on it – that the Obama administration’s decision to back up the Bush administration’s claim of "state secrets" with respect to the alleged US-coordinated torture of Binyam Mohamed is a holding action. Holder has said he’ll review all state secrets and be much less expansive in invoking the executive privilege than Bush-Cheney. That, however, would not be hard, as Scott Horton notes. Yes, the question and legitimacy of state secrets
was debated in the course of the Constitutional Convention and has been invoked by executives at least as early as the Jefferson administration. But roughly 90% of all invocations of state secrecy in court proceedings have occurred in the last eight years, a clear sign that something is terribly wrong in the Department of Justice.
That’s a staggering statistic. I have little doubt they are often related to the biggest "state secret" of Bush-Cheney: that the US government embraced a comprehensive policy of sometimes brutal torture as the main tool of the terror war. I do not see the wisdom of keeping this appalling record of criminality from the public eye. Yes, president Obama has to inherit ongoing cases, just as he has to inherit the financial and economic disaster that Bush bequeathed. He should take care that CIA officers are not targeted for prosecution (rather than their criminal civilian masters in the Bush cabinet). But there’s a thin line between maintaining legitimate and necessary security continuity and becoming complicit in the war crimes of the past seven years. The Democrats, as usual, are doing back-flips, as Greenwald notes:
What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration’s rendition and torture programs — even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.
Obama need not and must not be dragged into the war crimes of his predecessors. It is a huge relief that the torture program is over. But when its victims come forward seeking redress, they have a right – and the American people have a right – to prove what was done to them under orders of the last president.
(Photo: a prisoner uniform photographed in the torture cells of Abu Ghraib under the command of president George W. Bush.)