The Barack Obama [2] administration apparently surprised a panel of the US 9th Circuit Court of Appeals Feb. 9 by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration in a case involving Guantánamo Bay [3]. In the case, Binyam Mohamed [4] and four other detainees filed suit against a Boeing subsidiary for arranging flights for the Bush administration's "extraordinary rendition" program. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security.
Notes the New York Times [5] Feb. 10:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But 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.
That produced an angry response from Anthony D. Romero, executive director of the American Civil Liberties Union, which is representing the plaintiffs.
"This is not change," he said in a statement. "This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."
The Times [6] editorialized Feb. 11:
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.
President Obama has taken some important steps to repair Mr. Bush's damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.
On Feb. 5, The Telegraph [7] provided these grisly details of Mohamed's treatment—especially at the hands of the CIA's rendition partner Morocco [8]:
Mohamed claims that he spent 18 months being tortured in Morocco and another five months at the "Dark Prison" - a name used by Guantanamo Bay inmates for a secret facility near Kabul, where they claim to have been held.
He then claims to have been held for another four months at Bagram airbase in Afghanistan before arriving at Guantanamo Bay in September 2004.
In his diary Mohamed claims that, while in Morocco, the torture included having his genitals sliced with a razor.
He wrote: "One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony.
"They must have done this 20 to 30 times, in maybe two hours. There was blood all over. One of them said it would be better just to cut it off, as I would only breed terrorists.
"In all the 18 months I was there, I never went outside. I never saw the sun, not even once. I never saw any human being except the guards and my tormentors."
He describes the "Dark Prison" as a dungeon with loud rap and heavy metal music blasting 24 hours a day.
He wrote: "They hung me up for two days. My legs had swollen. My wrists and hands had gone numb. Then they changed the sounds to horrible ghost laughter and Halloween sounds. The CIA worked on people, including me, day and night. Plenty lost their minds."
Binyam Mohamed has been on hunger strike since Jan. 5, and his attorneys say he is down to "skin and bones."
