(updated below - Update II - Update III)
From The New York Times Editorial Page today ("Continuity of the Wrong Kind"):
The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.
On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.
Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.
Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.
The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
Last night, Rachel Maddow interviewed the torture victims' attorney, Ben Wizner of the ACLU, and both of them did an excellent job highlighting the travesty of what the Obama DOJ here did:
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Despite all of this, The Atlantic's Marc Ambinder continues to defend the Obama administration's conduct here, and does so in a way that so helpfully and vividly illustrates how Beltway "reporting" works and what Beltway journalists mean by that term.
On the day of the hearing, Ambinder wrote a misleading, knee-jerk defense of the Obama administration based on random thoughts that had popped into his head and which reflected a total lack of understanding even of the basic issues. After being criticized for that, he announced yesterday that he was "going to spend some more time on the phone this afternoon attempting to figure out why the Obama Administration ratified the invocation of the state secrets' privilege yesterday." Then, a few hours later, he wrote a post once again defending the Obama administration, this time based largely on what anonymous Obama officials told him. I'm going to address the "substance" of those claims in a minute, but first, consider what Ambinder actually did to "report" on this story:
He called up "administration officials," granted them full anonymity to defend their position (without bothering to explain why anonymity was warranted here), did not offer a single identifying fact about who these "officials" are, and then faithfully wrote down what they said, without a word of questioning or skepticism. He then found two independent sources who also praised Obama's decision. He did not cite or quote a single source critical of any of these claims -- including even the ACLU's Wizner, who he never bothered to call to ask for comment. It was a completely one-sided act of uncritical administration-amplifying stenography -- "anonymous administration officials say X and I'm going to write that down and pass it on uncritically and then praise it" -- which is exactly what many Beltway reporters have long meant when they praise themselves for doing "original reporting."
Ambinder's Atlantic colleague, Andrew Sullivan, quickly praised Ambinder for his "reporting" and -- after arguing just two days ago that Obama was becoming retroactively complicit in Bush's torture program as a result of shielding it from scrutiny -- changed his mind and has now decided that Obama's embrace of Bush's state secrets theory shows how wonderfully "pragmatic" (the all-purpose Obama-justifying term) and thoughtful and sober Obama's governing style is.
What possible justification is there for granting administration officials anonymity to explain why they are embracing a Bush-era weapon that they have long criticized? And why does an administration swearing great levels of transparency and accountability -- and vowing to use secrecy only when absolutely necessary -- need to hide behind a wall of anonymity in order to explain why they did what they did here? Why can't they attach their names to this explanation, so that they can be questioned about it and held accountable?
I'm not arguing that there's no value in hearing from official sources, even if they're hiding behind a wall of unwarranted anonymity, but what Ambinder just did here isn't any different than what Robert Gibbs would do if asked about this incident -- namely: convey what DOJ officials said, perhaps cite an outside source that agrees, and leave it at that. That isn't "reporting"; by definition, it's subservient pro-administration stenography. And nobody who objected to this practice when it served the Bush agenda should cheer it on when it serves the Obama agenda. The position of White House spokesman is already filled; nobody needs "reporters" replicating that function.
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What makes Ambinder's uncritical, mindless, one-sided recitation particularly galling is that the excuses he is passing on for the Obama DOJ's behavior are so patently frivolous. Let's just consider each of them in order:
1. The Obama DOJ, and Eric Holder specifically, had insufficient time to review the issues here and therefore embraced the pending Bush position as a "holding pattern."
I'd be willing to bet that 90% of non-lawyers know what parties do in situations when there is a court deadline approaching and, for whatever reasons, they need more time. The Obama administration has certainly shown in the past that they know what to do:
President Obama’s Justice Department is asking a federal judge for at least two more weeks to answer the thorny question of who is and who isn’t an "enemy combatant."
In a filing in federal court in Washington Wednesday, government lawyers asking for the delay cited Obama’s inauguration last week and the executive order he signed ordering a review of the cases of the roughly 245 war-on-terror detainees presently held at Guantanamo Bay. . . .
"The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases, in light of the change in Administrations and the requirements of the Executive Order," Justice Department lawyers wrote in their new motion. "Time is needed to make that assessment and determination. Accordingly, the Government requests a two-week extension…to allow the new Administration to assess the Government’s position in this matter.”
In his one of his first acts in office yesterday, President Barack Obama instructed prosecutors to seek 120-day delays in all cases now before U.S. military tribunals at Guantanamo Bay in Cuba while his administration evaluates the situation.
If, as Obama's Atlantic spokesman claims, this were really the problem -- that the Obama DOJ needed more time to review what they wanted to do -- then the solution is easy and obvious: you ask the court for more time. You don't march into court and explicitly advocate a Bush weapon that you've spent the last several years excoriating as a dangerous abuse of power -- thus risking that this tyrannical weapon becomes judicially approved and torture victims forever denied the right to a day in court.
Seeking more time is exactly what the Obama DOJ did in other cases -- so why not here if that were really the reason? And here, the ACLU actually suggested that the DOJ seek an extension and indicated their consent to any extension the DOJ wanted. Even the judges on the panel expected that the Obama DOJ would change positions. And this is a case where obtaining an extension is far easier than in those other cases, since -- unlike those other cases -- this isn't about whether someone gets released from detention. It's only a civil case with far less time-urgency.
The claim that the Obama DOJ was forced by a time deadline to embrace the Bush position is so absurd as to be insulting. Too bad the anonymous officials making this claim didn't have a reporter willing to challenge them.
2. There may be genuine state secrets involved in this case that the Obama DOJ didn't want to "waive" by abandoning Bush's claim of privilege.
This is even more disingenuous than the first excuse. As I documented yesterday -- and as the New York Times Editorial above also highlights -- the alternative to Bush's lawsuit-killing use of the privilege is not to waive the privilege entirely. Everyone -- including the ACLU -- acknowledges that the Government should have the right to assert the State Secrets privilege on a document-by-document basis. The controversy was and is only about one thing: the use of the privilege to compel the dismissal of entire lawsuits in advance -- in other words, to convert the State Secrets privilege from what it always was (a focused evidentiary privilege) to what it was never intended to be (full-scale immunity for government lawbreakers from all judicial accountability).
Therefore, had the Obama administration adhered to its alleged beliefs -- and simply told the court that it does not support the Bush administration's use of the privilege to bar entire lawsuits in advance -- it would still have had every opportunity to protect whatever genuine secrets it believes are present in this case. The lawsuit would simply have been remanded to the District Court, and then the Obama DOJ could assert the privilege over whatever documents or other facts it believes genuinely constitute state secrets.
That use of the privilege -- on a document-by-document basis, with judicial review -- is what Democrats have long claimed to believe in. The Obama DOJ would not have lost that right had they abandoned the Bush position. The exact opposite is true: had they abandoned the Bush position, they then would be in the position they claim to want to be in, whereby they can protect whatever legitimate secrets exist. All they are accomplishing now is to make sure the entire lawsuit is dismissed without that determination ever taking place -- i.e., exactly what they have long claimed is so abusive and destructive about Bush's use of the privilege.
The anonymous quote Ambinder passes along -- "If you decide today precipitously to waive this privilege, you can't get it back. If you decide to assert it, you can always retract it in the future" -- is thus absolutely wrong. They would not have waived their right to assert privilege over actual secrets had they abandoned Bush's generalized claim. And is there anyone anywhere -- other than Marc Ambinder -- who thinks it's remotely likely that the Obama DOJ, having actively defended the Bush theory in open court in this case, is going to retract it at some point and agree that torture victims are entitled to their day in court?
3. The Obama administration wants to protect rendition agreements with other countries.
This is the claim that Ambinder passed on as to what genuine secrets are supposedly involved in this case, and it's the most inane of all the excuses. Obama has banned rendition to countries (such as Egypt and Jordan) where torture is likely. If there are still specific rendition agreements that the Obama DOJ thinks are secret and need to be protected, then they can and should assert the privilege as to those documents. That has nothing to do with demanding that the entire lawsuit be dismissed in advance.
As Wizner told me this morning, there is no reason why the ACLU would even need those supposedly secret documents to make their case. Whether the U.S. has rendition agreements with Jordan or Morocco, or what the content of those agreements are, is irrelevant. Besides, other countries -- such as Sweden, which already investigated these claims and fully disclosed their involvement in the CIA's rendition program when awarding the victims compensation -- have already made certain that many of these facts are disclosed. As is true for any lawsuit, the fact that there may be specific documents that are privileged is no reason at all to demand that the entire lawsuit be dismissed and that courts be barred from ever considering the subject matter.
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Beltway reporters establish their access and favored status by serving as mindless, uncritical conduits for government claims. They prove their Seriousness bona fides by demonstrating their willingness/eagerness to mock and criticize unserious, "Far Left" groups such as the ACLU. That's all Ambinder is doing here, and he's not even pretending to exercise an iota of critical thought. Traditionally, that's how reporters secure a place squarely within "the grid in front of the President."
As Wizner said in his MSNBC interview last night, the Obama administration has taken some unquestionably important steps in terminating some of the worst abuses of the Bush era. None of this negates any of that. There's no rational way to claim that Obama is the equivalent of Bush on these issues (see here as well).
But this is a case where the Obama DOJ is working actively to preserve one of the linchpins of those abuses: expansive secrecy and immunity from judicial proceedings in order to conceal government crimes. That conduct is directly contrary to Obama's general commitment to restore transparency and, worse, his specific opposition to the Bush State Secrets privilege.
Whether someone thinks this is a good lawsuit or not is irrelevant, as is one's view about whether it contains actual secrets. It's the use of the State Secrets privilege as a means for evading all judicial accounability that the Obama DOJ is defending and, if they win, forever institutionalizing for themselves and future Presidents who want to break the law and then prevent courts of law from scrutinizing what they did.
Doing this is clearly designed to retain credibility with the CIA and avoid the political pressures that would come from a judicial adjudication of Bush's torture and rendition policies. Whatever the motives, the Obama DOJ is embracing exactly that which they claimed to oppose -- a dangerous weapon which is subject to very severe abuse -- and there is no plausible excuse for it.
UPDATE: Or, to put all of this much more succinctly -- from a recent interview with Marc Ambinder (h/t Jim White):
Q. What single person played the biggest role / had the biggest influence on your journalism career?
MA: Mark Halperin.
That explains absolutely everything.
UPDATE II: The Columbia Journalism Review adds its editorial voice to those debunking the justifying myths being circulated on behalf of the Obama DOJ and criticizing the White House press corps for failing to press the administration on this clear reversal of position. The entire piece, by Clint Hendler, is worth reading, and it concludes this way:
Before Monday’s events fade too far away, the press must get a high profile member of the administration on the record about this decision, in a way that probes and exposes the dangerous logic underlaying it. The anonymous sources quoted by The Atlantic’s Marc Ambinder just won’t cut it. Luckily, today’s press conference presents a chance to do better.
Ultimately, the real responsibility here lies with Congress. It's hardly surprising, as Professor Darren Hutchinson notes, that the Obama administration is eager to hold on to potent weapons of executive power (though Democrats' long-standing specific attack on this particular executive weapon does make the behavior more notable). Presidents typically seek to preserve and expand their own power, and ultimately, it's the duty of Congress to prevent those abuses.
Leading Senate Democrats, when Bush was President, were pushing legislation to prohibit the use of the States Secret privilege in exactly the way that the Obama DOJ is now using it. That legislation is more needed now than ever before.
UPDATE III: Marc Ambinder has yet another post defending the Obama administration (in which he replies to my points here without explicitly acknowledging that he's doing so), and this process has now become truly -- genuinely -- bizarre. This is what is happening:
Each time a criticism is voiced about the Obama DOJ, Ambinder runs to anonymous DOJ officials and asks them about the criticisms, and they -- hiding behind the anonymity he gives them -- then respond through Ambinder. Ambinder writes down everything they say, puts his name at the top, publishes it, and serves as their loyal spokesman.
Go read what he just wrote and see if he does anything different than that. Does anyone want to claim that this is the role of a journalist? And why can't those DOJ officials just come forward, identify themselves, address these claims directly and explain what they're doing? Why are they hiding behind Marc Ambinder and sending him to do their bidding?
Compare what Ambinder just wrote -- the mindless, loyal parrot ing (yet again) of anonymous DOJ sources -- to what Stephen Colbert said while mocking Beltway journalists to their face at the 2006 White House Correspondent's Dinner:
But, listen, let's review the rules. Here's how it works. The President makes decisions. He's the decider. The press secretary announces those decisions, and you people of the press type those decisions down. Make, announce, type. Just put 'em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you got kicking around in your head. You know, the one about the intrepid Washington reporter with the courage to stand up to the administration? You know, fiction!
Isn't that exactly what Ambinder is doing -- and not even pretending to do anything else? And he's writing things down that DOJ officials say and repeating them even when they make absolutely no sense (as but the latest example: he actually claims in this last post that merely to seek an extension would have itself constituted a "retraction" of the State Secrets privilege; to describe that claim is to illustrate its absurdity). And Ambinder wants to announce on behalf of his government script-writers: "they're not motivated by what civil libertarians may write on their blogs."
Jane Hamsher has much more on this, including this absolutely true observation:
But what is going on right now in the world of DC journalism finds its most naked expression in Ambinder's piece, though I've seen other glaring examples of late -- journalists are scrambling for who gets "access" to the White House. So there's no end to the bullshit they'll write to ingratiate themselves to potential sources, or the inconvenient facts they'll edit out in order to be the new Bob Woodward.
Unfortunately Ambinder is only one among several who seem to be vying to become the next generation of stenographers with access . . . They know from those previous alumni's examples that the only way to get seriously good insider access is to faithfully copy down and report the news in exactly the way unofficially officials ask them to - no attribution required. They've been called "lapdogs" of democracy rather than the watchdogs they should be, and they are a bipartisan breed.
In the Beltway royal court, there is no mark of prestige greater than proximity to presidential power (hence the reverence for Woodward). In the warped world of the Washington media, those who are chosen to be the obedient parrots for administration officials -- the scribes to the Crown -- are actually considered "good journalists," and there is much jockeying going on among them to see who gets chosen for that subservient post in the new administration. Ambinder has helped himself greatly with his incomparably sycophantic "reporting" over the last three days.
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