Sunday, March 29, 2015

indicative of the way lawyers in power act wrt the rule of law?


firstlook |  One of the earliest and most intense grievances of civil libertarians during the Bush presidency was its radical abuse of the “state secrets privilege.” That doctrine began as a narrowly crafted evidentiary rule whereby parties to litigation would be barred from using specific documents that could reveal sensitive national security secrets. But it morphed into the legal equivalent of a nuclear bomb whereby the U.S. government could literally demand not that specific documents be excluded but that U.S. courts dismiss entire lawsuits before they began — even when those lawsuits alleged criminal behavior by top U.S. officials — on the ground that the subject matter of the lawsuit was too sensitive to be safely adjudicated.

The Bush Justice Department used this weapon to prevent its torture, detention, rendition and surveillance victims — even those everyone acknowledged were completely innocent — from having a day in court. They would simply say that the treatment of the plaintiffs was classified, and that disclosure would risk harm to national security, and subservient U.S. federal judges (an almost redundant term) would dutifully dismiss the lawsuits before they even began. It literally removed high U.S. government officials from the rule of law: if you commit crimes or brutally abuse people, you will be immunized from legal accountability if you did it in a classified setting.

When Obama was in the Senate and then running for President in 2007, he was highly critical of the Bush use of the “state secrets privilege” to get rid of troublesome lawsuits. His official campaign website cited Bush’s abuse of the privilege as a hallmark of excessive secrecy.

But like so many of his purported views, this concern about the use of the “state secrets privilege” was abandoned almost immediately upon his inauguration. His DOJ invoked the privilege to demand victims of Bush programs of torture, rendition, detention, and surveillance be denied any opportunity to be heard in court even when the U.S. government itself acknowledged they were innocent. Obama lawyers even invoked secrecy to argue that a lawsuit challenging the legality of their own targeted assassination program against a U.S. citizen could not be heard in court. As an early headline in the Obama-supporting TPM site recognized: “Expert Consensus: Obama Mimics Bush On State Secrets. And it worked in virtually every case.