Tags: gaza, gaza civilians, gaza massacre, gaza strip, gaza tunnels, glen greenwald, israeli terrorism, jon queally, joseph goebbels, netanyahu, nurbemberg principles, palestinian children, palestinian deaths, Palestinians, telegenically dead
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Roger’s note: the Nazi Minister of Propaganda, Joseph Goebbels, perfected the infamous Big Lie stratagem. Tell it brazenly and often and it becomes accepted fact. In the second article posted here, that of Glen Greenwald, we see an eerie example of this in relation to a recent remark by Israeli warmonger Netanyahu. The Israeli/American/German/etc. narrative on the current Gaza massacre is that it has been provoked by Hamas, who, unprovoked, builds tunnels and sends missiles aimed at Israeli residents; leaving Israel no alternative but to “defend” itself.
THAT IS A BIG LIE.
The reality is that the Netanyahu Israeli government has used whatever pretext it can find to punish Palestinians for the recent unification of the Gaza Hamas and West Bank governments. The Israeli sanctions against Gaza made already nearly unsupportable life even more impossible, thus provoking the missile launch. This, of course, against a background of the Israeli “seige” of Gaza, the ongoing repression, the illegal settlements, etc., turning it into a veritable concentration camp with no escape possible.
More than 500 Palestinians now dead as sealed-off territory becomes open battlefield; Calls for immediate cease fire go out, but violence continues
Intense shelling and aerial assaults that claimed hundreds of lives over the weekend continued in the Gaza Strip on Monday, pushing the number of Palestinians killed by Israel’s ‘Operation Protective Edge’ beyond 500 people, with many thousands wounded, since it began on July 8.
“While official claims that the objective of the ground offensive is to destroy tunnels into Israel, what we see on the ground is that bombing is indiscriminate and that those who die are civilians.” —Nicolas Palarus, Doctors Without Borders
In the Gaza City suburb of Shuja’iyya on Sunday,more than 120 Palestinians—at least 40 of whom where women and children—were killed during intense and reportedly “indiscriminate” bombing by Israeli forces. The Ma’an News Agency reports that overall, 150 Palestinians were killed across the territory on Sunday.
“It was a night of horror,” one 50 year-old Palestinian from the city of Beit Hanoun in northern Gaza toldReuters.
According to the New York Times on Monday, “Israel has lost 18 soldiers so far, as well as two citizens killed by rocket and mortar fire.”
Late on Sunday, the UN Security Council held an emergency meeting over the crisis in Gaza anddemanded all parties agree to an immediate cease fire. The council, however, did not pick up an official resolution offered by Jordan which put forth stronger language condemning the violence against civilians in Gaza and called for a lifting of the siege that prevents people from leaving the enclave that has now become an open battlefield.
In a statement, the France-based medical relief agency Doctors Without Borders/MSF called on Israel to immediately stop bombing the civilian population trapped in the sealed-off Gaza strip and to respect the safety of medical workers and health facilities working there.
“Shelling and air strikes are not only intense but are also unpredictable, which makes it very difficult for MSF and other medical workers to move and provide much needed emergency care,” said Nicolas Palarus, MSF field coordinator in Gaza.
“While official claims that the objective of the ground offensive is to destroy tunnels into Israel,” Palarus continued, “what we see on the ground is that bombing is indiscriminate and that those who die are civilians.”
UN Chief Ban Ki-Moon, speaking in Doha on Sunday, made his strongest comments yet on Israel’s military assault, calling for an end to the campaign that has now killed hundreds of civilians and wounded thousands, including a huge numbers of children.
“I condemn this atrocious action,” Ban said. “Israel must exercise maximum restraint and do far more to protect civilians.”
Both U.S. Secretary of State John Kerry and President Barack Obama have also backed the latest calls for a cease fire and expressed “concern” for the increasing numbers of civilian casualties, but continued to stop short of condemning Israeli’s aggressive tactics.
In a call with Israel Prime Minister Benjamin Netanyahu on Sunday, according to the White House, Obama raised “serious concern” about the growing number of casualties on both sides, including increasing Palestinian civilian deaths in Gaza and the loss of Israeli soldiers, but reaffirmed the U.S. position that Israel has a “right to defend itself.”
Kerry was on his way to Cairo on Monday to engage with regional leaders gathered there to work on the possibility of a negotiated settlement. Kerry made headlines on Sunday for what were described as “unguarded” comments made to a senior aide in which he was shown expressing frustration over the increasing numbers of civilians deaths caused by Israel’s attack. “It’s a hell of a pinpoint operation, it’s a hell of a pinpoint operation,” Kerry said, seeming to challenge the repeated claims made by Israeli officials.
Netanyahu’s “Telegenically Dead” Comment Is Grotesque But Not Original
They want to pile up as many civilian dead as they can. They use telegenically dead Palestinians for their cause. They want the more dead, the better.
The Jews gradually are having to depend more and more on themselves, and have recently found a new trick. They knew the good-natured German Michael in us, always ready to shed sentimental tears for the injustice done to them.One suddenly has the impression that the Berlin Jewish population consists only of little babies whose childish helplessness might move us, or else fragile old ladies. The Jews send out the pitiable. They may confuse some harmless souls for a while, but not us. We know exactly what the situation is.
Rather than lard up the point with numerous defensive caveats about what is and is not being said here (which, in any event, never impede wilful media distorters in their tactics), I’ll simply note three brief points:
(1) To compare aspects of A and B is not to posit that A and B are identical (e.g., to observe that Bermuda and Bosnia are both countries beginning with the letter “B” is not to depict them as the same, just as observing that both the U.S. in 2003 and Germany in 1938 launched aggressive wars in direct violation of what were to become the Nuremberg Principles is not to equate the two countries).
(2) In general, the universality of war rhetoric is a vital fact, necessary to evaluate the merit of contemporary claims used to justify militarism (claims that a war amounts to mere “humanitarian intervention”, for instance, have been invoked over and over to justify even the most blatant aggression). Similarly, the notion that one is barred from ever citing certain historical examples in order to draw lessons for contemporary conflicts is as dangerous as it is anti-intellectual.
(3) Anglo-American law has long recognized that gross recklessness is a form of intent(“Fraudulent intent is shown if a representation is made with reckless indifference to its truth or falsity”). That’s why reckless behavior even if unaccompanied by a desire to kill people – e.g., randomly shooting a gun into a crowd of people – has long been viewed as sufficient to establish criminal intent.
One can say many things about a military operation that results in more than 75% of the dead being civilians, many of them children, aimed at a population trapped in a tiny area with no escape. The claim that there is no intent to kill civilians but rather an intent to protect them is most assuredly not among them. Even stalwart-Israel-supporter Thomas Friedman has previously acknowledged that Israeli assaults on Lebanon, and possibly in Gaza, areintended ”to inflict substantial property damage and collateral casualties” because “the only long-term source of deterrence was to exact enough pain on the civilians” (which, to the extent it exists, is the classic definition of “terrorism”). The most generous claim one can make about what Israel is now doing in Gaza is that it is driven by complete recklessness toward the civilian population it is massacring, a form of intent under centuries of well-settled western law.
* * * * *
American journalism is frequently criticized with great justification, but there are a number of American journalists in Gaza, along with non-western ones, in order to tell the world about what is happening there. That reporting is incredibly brave and difficult, and those who are doing it merit the highest respect. Their work, along with the prevalence of social media and internet technology that allows Gazans themselves to document what is happening, has changed the way Israeli aggression is seen and understood this time around.
Western justice and transparency January 23, 2012Posted by rogerhollander in Barack Obama, Criminal Justice, War on Terror.
Tags: anwar awlaki, Bilal el-Berjawi, cia drone, david baron, dawn johnsen, eric holder, extrajudicial killings, glen greenwald, marty lederman, president obama, presidential assassination, roger hollander, state secrets
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Anwar Awlaki and Barack Obama (Credit: AP)
On Saturday in Somalia, the U.S. fired missiles from a drone and killed the 27-year-old Lebanon-born, ex-British citizen Bilal el-Berjawi. His wife had given birth 24 hours earlier and the speculation is that the U.S. located him when his wife called to give him the news. Roughly one year ago, El-Berjawi was stripped of his British citizenship, obtained when his family moved to that country when he was an infant, through the use of a 2006 British anti-Terrorism law — passed after the London subway bombing — that the current government is using with increasing frequency to strip alleged Terrorists with dual nationality of their British citizenship (while providing no explanation for that act). El-Berjawi’s family vehemently denies that he is involved with Terrorism, but he was never able to appeal the decree against him for this reason:
Berjawi is understood to have sought to appeal against the order, but lawyers representing his family were unable to take instructions from him amid concerns that any telephone contact could precipitate a drone attack.
Obviously, those concerns were valid. So first the U.S. tries to assassinate people, then it causes legal rulings against them to be issued because the individuals, fearing for their life, are unable to defend themselves. Meanwhile, no explanation or evidence is provided for either the adverse government act or the assassination: it is simply secretly decreed and thus shall it be.
Exactly the same thing happened with U.S. citizen Anwar Awlaki. When the ACLU and CCR, representing Awlaki’s father, sued President Obama asking a federal court to enjoin the President from killing his American son without a trial, the Obama DOJ insisted (and the court ultimately accepted) that Awlaki himself must sue on his own behalf. Obviously, that was impossible given that the Obama administration was admittedly trying to kill him and surely would have done so the minute he stuck his head up to contact lawyers (indeed, the U.S. tried to kill him each time they thought they had located him, and then finally succeeded). So again in the Awlaki case: the U.S. targets someone for death, and then their inability to defend themselves is used as a weapon to deny their legal rights.
The refusal to provide transparency is also the same. Ever since Awlaki was assassinated, the Obama administration has steadfastly refused to disclose not only any evidence to justify the accusations of Terrorism against him, but also the legal theories it is using to assert the power to target U.S. citizens for death with no charges. A secret legal memo authorizing the Awlaki assassination, authored by Obama lawyers David Baron and Marty Lederman, remains secret. During the Bush years, Democratic lawyers vehemently decried the Bush DOJ’s refusal to release even OLC legal memoranda as tyrannical “secret law.” One of the lawyers most vocal during the Bush years about the evils of “secret law,” Dawn Johnsen (the never-confirmed Obama appointee to be chief of the OLC) told me back in October: “I absolutely do not support the concealment of OLC’s Awlaki memo . . . .The Obama administration should release either any existing OLC memo explaining why it believes it has the authority for the targeted killings or a comparably detailed legal analysis of its claimed authorities.”
A Daily Beast report today says that the Obama administration “is finally going to break its silence” on the Awlaki killing, but here’s what they will and will not disclose:
In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration’s national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. . . .
An early draft of Holder’s speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.
In other words, they’re going to dispatch Eric Holder to assert that the U.S. Government has the power to target U.S. citizens for assassination by-CIA-drone, but will not even describe a single piece of evidence to justify the claim that Awlaki was guilty of anything. In fact, they will not even mention his name. As Marcy Wheeler said today:
This is simply an asinine compromise. We all know the Administration killed Awlaki. We all know the Administration used a drone strike to do so. . . .
The problem–the problem that strikes at the very heart of democratic accountability–is that the Administration plans to keep secret the details that would prove (or not) that Awlaki was what the Administration happily claims he is under the veil of anonymity, all while claiming that precisely that information is a state secret.
The Administration seems to be planning on making a big speech on counterterrorism–hey! it’s another opportunity to brag again about offing Osama bin Laden!–without revealing precisely those details necessary to distinguish this killing, and this country, from that of an unaccountable dictator.
The CIA seems to have dictated to our democratically elected President that he can’t provide the kind of transparency necessary to remain a democracy. We can kill you–they appear to be planning to say–and we’ll never have to prove that doing so was just. You’ll just have to trust us!
That, of course, is the heart and soul of this administration’s mentality when it comes to such matters, and why not? Between Republicans who always cheer on the killing of Muslims with or without any explanation or transparency, and Democrats who do so when their leader is the assassin, there is little political pressure to explain themselves. If anything, this planned “disclosure” makes the problem worse, since we will now have the spectacle of Eric Holder, wallowing in pomp and legal self-righteousness, finally defending the power that Obama already has seized — to assassinate U.S. citizens in secret and with no checks — but concealing what is most needed: evidence that Awlaki was what the U.S. Government claims he is. That simply serves to reinforce the message this Government repeatedly sends: as Marcy puts it, “We can kill you and we’ll never have to prove that doing so was just. You’ll just have to trust us!” The Yemen expert Gregory Johnsen added: “The US legal opinion on Awlaki is one thing, but it rests on assumptions made by the intelligence community, which won’t be revealed.”
This no longer seems radical to many — it has become normalized — because it’s been going on for so long now and, more important, it is now fully bipartisan consensus. But to see how extreme this all really is, to understand what a radical departure it is, just consider what George Bush’s neocon Ambassador to Israel, Martin Indyk, told the Israelis in 2001, as flagged by this Guardian Op-Ed by Mary Ellen O’Connell comparing Obama’s assassinations to Bush’s torture program:
The United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.
What George Bush’s Ambassador condemned to the Israelis’ face just a decade ago as something the nation was steadfastly against has now become a staple of government policy: aimed even at its own citizens, and carried out with complete secrecy. And those who spent years mocking the notion that “9/11 Changed Everything” will have no choice but to invoke that propagandistic mantra in order to defend this: what else is there to say?
The “nobody-could-have-known” excuse and Iraq September 1, 2010Posted by rogerhollander in Iraq and Afghanistan, Media, War.
Tags: glen greenwald, howard dean, Iraq, iraq casualties, Iraq occupation, Iraq war, iraw invasion, john burns, journalism, Media, roger hollander, war reporting, wmds
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(updated below – Update II - Update III [Wed.] – Update IV [Wed.] – Update V [Wed.] – Update VI [Wed.])
The predominant attribute of American elites is a refusal to take responsibility for any failures. The favored tactic for accomplishing this evasion is the “nobody-could-have-known” excuse. Each time something awful occurs — the 9/11 attack, the Iraq War, the financial crisis, the breaking of levees in New Orleans, the general ineptitude and lawlessness of the Bush administration — one is subjected to an endless stream of excuse-making from those responsible, insisting that there was no way they “could have known” what was to happen: “I don’t think anybody could have predicted that they would try to use an airplane as a missile, a hijacked airplane as a missile,” Condoleezza Rice infamously said on May 16, 2002, despite multiple FBI and intelligence documents warning of exactly that. One finds identical excuses for each contemporary American disaster. Robert Gibbs just invoked the same false excuse: that “nobody” knew the depth of the financial and unemployment crisis early last year.
Because the political class is treating today as some sort of melodramatic milestone in the Iraq War, there is a tidal wave of those self-defending claims crashing down around us. The New York Times‘ John Burns — who bravely covered that war for years — presents a classic case of this mentality today in a solemn retrospective entitled “The Long-Awaited Day.” I realize we’re all supposed to genuflect to Burns’ skills as a war journalist — I’ve personally found him far more overtly supportive of the war than most others covering it and certainly more than his claimed objectivity would permit, even when his reporting was illuminating — but if he’s right about what he says today, it’s a rather enormous (albeit unintentional) indictment of himself and his colleagues covering the war:
Hindsight is a powerful thing, and there have been plenty of voices amid the tragedy that has unfolded since the invasion to say, in effect, “I told you so.” But among that band of reporters – men and women who thought we knew something about Iraq, and for the most part sympathized with the joy Iraqis felt at what many were unashamed then to call their “liberation” — there were few, if any, who foresaw the extent of the violence that would follow or the political convulsion it would cause in Iraq, America and elsewhere.
We could not know then, though if we had been wiser we might have guessed, the scale of the toll the invasion would unleash: the tens of thousands of Iraqi civilians who would die; the nearly 4,500 American soldiers who would be killed; the nearly 35,000 soldiers who would return home wounded; the hundreds of thousands of Iraqis who would flee abroad as refugees; the $750 billion in direct war costs that would burden the United States; the bitterness that would seep into American politics; the anti-Americanism that would become a commonplace around the world.
If Burns wants to claim that he and his American media colleagues in Baghdad were unaware that any of this was likely, I can’t and won’t dispute that. In fact, it’s probably true that they were unaware of it — blissfully so — which is why media coverage in the lead-up to the war was so inexcusably one-sided in its war cheerleading, as even Howard Kurtz documented. But Burns’ claim that they “could not know then” that the invasion could unleash all of the tragedy, violence and anti-Americanism it spawned is absolutely ludicrous, a patent attempt to justify his severe errors in judgment as being unavoidable.
Aside from the obvious, intrinsic risks of invading a country smack in the middle of the Muslim world, with much of the world vehemently opposed, there were countless people warning of exactly these possibilities from invading. If Burns and his friends were unaware of those risks, it was only because they decided to ignore those voices, not because they could not have known. Here, as but one example, is Jim Webb in 2002, arguing against an attack on Iraq in The Washington Post:
Meanwhile, American military leaders have been trying to bring a wider focus to the band of neoconservatives that began beating the war drums on Iraq before the dust had even settled on the World Trade Center. Despite the efforts of the neocons to shut them up or to dismiss them as unqualified to deal in policy issues, these leaders, both active-duty and retired, have been nearly unanimous in their concerns. Is there an absolutely vital national interest that should lead us from containment to unilateral war and a long-term occupation of Iraq? . . . .
With respect to the situation in Iraq, they are conscious of two realities that seem to have been lost in the narrow debate about Saddam Hussein himself. The first reality is that wars often have unintended consequences — ask the Germans, who in World War I were convinced that they would defeat the French in exactly 42 days. . . . .
The issue before us is not simply whether the United States should end the regime of Saddam Hussein, but whether we as a nation are prepared to physically occupy territory in the Middle East for the next 30 to 50 years. Those who are pushing for a unilateral war in Iraq know full well that there is no exit strategy if we invade and stay. . . . .
The Iraqis are a multiethnic people filled with competing factions who in many cases would view a U.S. occupation as infidels invading the cradle of Islam. Indeed, this very bitterness provided Osama bin Laden the grist for his recruitment efforts in Saudi Arabia when the United States kept bases on Saudi soil after the Gulf War.
In Japan, American occupation forces quickly became 50,000 friends. In Iraq, they would quickly become 50,000 terrorist targets. . . . It is true that Saddam Hussein might try to assist international terrorist organizations in their desire to attack America. It is also true that if we invade and occupy Iraq without broad-based international support, others in the Muslim world might be encouraged to intensify the same sort of efforts.
And here’s Howard Dean, in one of the more prescient political speeches of the last decade, speaking at Drake University, roughly one month before the war began:
We have been told over and over again what the risks will be if we do not go to war.
We have been told little about what the risks will be if we do go to war.
If we go to war, I certainly hope the Administration’s assumptions are realized, and the conflict is swift, successful and clean. . . .
It is possible, however, that events could go differently, and that the Iraqi Republican Guard will not sit out in the desert where they can be destroyed easily from the air.
It is possible that Iraq will try to force our troops to fight house to house in the middle of cities — on its turf, not ours — where precision-guided missiles are of little use.
It is possible that women and children will be used as shields and our efforts to minimize civilian casualties will be far less successful than we hope.
There are other risks.
Iraq is a divided country, with Sunni, Shia and Kurdish factions that share both bitter rivalries and access to large quantities of arms.
Iran and Turkey each have interests in Iraq they will be tempted to protect with or without our approval.
If the war lasts more than a few weeks, the danger of humanitarian disaster is high, because many Iraqis depend on their government for food, and during war it would be difficult for us to get all the necessary aid to the Iraqi people.
There is a risk of environmental disaster, caused by damage to Iraq’s oil fields.
And, perhaps most importantly, there is a very real danger that war in Iraq will fuel the fires of international terror.
Anti-American feelings will surely be inflamed among the misguided who choose to see an assault on Iraq as an attack on Islam, or as a means of controlling Iraqi oil.
And last week’s tape by Osama bin Laden tells us that our enemies will seek relentlessly to transform a war into a tool for inspiring and recruiting more terrorists.
We should remember how our military presence in Saudi Arabia has been exploited by radicals to stir resentment and hatred against the United States, leading to the murder of American citizens and soldiers.
We need to consider what the effect will be of a U.S. invasion and occupation of Baghdad, a city that served for centuries as a capital of the Islamic world.
I could literally spend the rest of the day quoting those who were issuing similar or even more strident warnings. Anyone who claims they didn’t realize that an attack on Iraq could spawn mammoth civilian casualties, pervasive displacement, endless occupation and intense anti-American hatred is indicting themselves more powerfully than it’s possible for anyone else to do. And anyone who claims, as Burns did, that they “could not know then” that these things might very well happen is simply not telling the truth. They could have known. And should have known. They chose not to.
UPDATE: Perhaps even worse than the strain of “nobody-could-have-known” excuse-making invoked by Burns is the claim that “nobody could have known” that Iraq did not really have WMDs. Contrary to the pervasive self-justifying myth that “everyone” believed that Saddam possessed these weapons — and thus nobody can be blamed for failing to realize the truth — the evidence to the contrary was both public and overwhelming. Consider the March 17, 2003, Der Spiegel Editorial warning that “for months now, Bush and Blair have been busy blowing up, exaggerating and deliberately over-interpreting intelligence information and rumours to justify war on Iraq,” or a September 30, 2002 McClatchy article — headlined: “War talk fogged by lingering questions; Threat Hussein poses is unclear to experts” — which detailed the reasons for serious skepticism about the pro-war case.
Or simply recall the various pre-war statements by the ex-Marine and U.N. weapons inspector for Iraq, Scott Ritter (“The truth of the matter is that Iraq has not been shown to possess weapons of mass destruction, either in terms of having retained prohibited capability from the past, or by seeking to re-acquire such capability today”), or Howard Dean in his Drake speech (“Secretary Powell’s recent presentation at the UN showed the extent to which we have Iraq under an audio and visual microscope. Given that, I was impressed not by the vastness of evidence presented by the Secretary, but rather by its sketchiness“). All of that, too, was brushed aside by government officials and suppressed and even mocked by most of the American media, all of whom were determined to allow nothing to impede the march to war. Rather than take responsibility for their failings, they instead insist — as Burns did today — that they could not have known.
UPDATE II: Every retrospective from supporters of the attack on Iraq, if they’re to be honest and worthwhile, should read more or less like John Cole’s, from 2008.
UPDATE III: After Obama’s Iraq speech last night, I was on CBC – Canada’s broadcasting network — discussing that speech. It can be seen here. As you can see, Skype video technology is improving rapidly and enabling acceptance of more TV offers.
UPDATE IV: For sheer factual inaccuracy in John Burns’ observations, see here.
UPDATE V: Speaking of accountability for those responsible for the Iraq War, Simon Owens has a very good article on the criticisms provoked by Jeffrey Goldberg’s Iran article in The Atlantic — featuring my criticisms of him — and what that dynamic reflects about the new media landscape.
The 180-Degree Reversal of Obama’s State Secrets Position February 10, 2009Posted by rogerhollander in Barack Obama, Criminal Justice.
Tags: aclu, arlen specter, bush administration, civil libertarians, civil liberties, Criminal Justice, democratic party, department of justice, doj, glen greenwald, joe biden, judicial review, justice, kevin drum, obama administration, roger hollander, rule of law, russ feingold, senate judiciary, senator kennedy, senator leahy, state secrets, state secrets privilege, state secrets protection act
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From the Obama/Biden campaign website, mybarackobama.com, here was what the Obama campaign was saying — back then — about the State Secrets privilege:
Apparently, the operative word in that highlighted paragraph — unbeknownst to most people at the time — was “the Bush administration,” since the Obama administration is now doing exactly that which, during the campaign, it defined as “The Problem,” the only difference being that it is now Obama, and not Bush, doing it. For journalists who haven’t bothered to learn the first thing about this issue even as they hold themselves out as experts on it, and for Obama followers eager to find an excuse to justify what was done, a brief review of the State Secrets privilege controversy is in order.
Nobody — not the ACLU or anyone else — argues that the State Secrets privilege is inherently invalid. Nobody contests that there is such a thing as a legitimate state secret. Nobody believes that Obama should declassify every last secret and never classify anything else ever again. Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege. Those are all transparent, moronic strawmen advanced by people who have no idea what they’re talking about.
What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out — was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. That is the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny — and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).
By itself, this [the quantitative increase in the post-9/11 use of the privilege] is bad enough. But it’s not the worst part of the Bush administration’s use of the privilege.
Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What’s more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.
Now Barack Obama is president, and unfortunately he’s decided to continue the Bush administration’s expansive reading of the privilege.
To underscore just what a complete reversal the Obama DOJ’s conduct is, consider what Seante Democrats were saying for the last several years. In early 2008, Sens. Kennedy and Leahy, along with Sen. Arlen Specter, sponsored the State Secrets Protection Act. It had numerous co-sponsors, including Joe Biden. In April, 2008, the Senate Judiciary Committee approved the bill, with all Committee Democrats voting for it, along with Specter. The scheme restrictions imposed on the privilege by that bill was the consensus view of the pre-2009 Democratic Party.
The primary purpose of that bill is to bar the precise use of the State Secrets privilege which the Obama DOJ yesterday defended: namely, as a tool to force courts to dismiss entire lawsuits from the start without any proceedings being held, rather than as a focused instrument for protecting specific pieces of classified information from disclosure.
That bill explicitly provides that “the state secrets privilege shall not constitute grounds for dismissal of a case or claim” (Sec. 4053(b)). Instead, the President could only “invoke the state secrets privilege as a ground for withholding information or evidence in discovery or for preventing the introduction of evidence at trial” (Sec. 4054(a)), and must submit each allegedly privileged piece of evidence to the court for the court to determine whether each item is legitimately subject to the privilege (Sec. 4054(d-e). Where the court rules that a specific piece of evidence is privileged, it must attempt to find an evidentiary substitute (e.g., a summary of the evidence, a partially redacted copy, compelled admissions by the Government of certain allegations), and then — only after all the evidence is gathered in discovery — can the court dismiss the lawsuit only if it finds, in essence, that the plaintiffs cannot prove their case without reliance on the specific privileged information (Sec. 4055).
That has been the argument of Democrats for quite some time — as well as civil libertarians such as Russ Feingold and the ACLU, both of whom endorsed that bill: that what was abusive and dangerous about Bush’s use of the State Secrets privilege was the preemptive, generalized use of this privilege to force dismissal of entire lawsuits in advance, even where the supposed secret to be concealed was the allegedly criminal activity itself. And that is exactly the usage that the Obama administration is now defending.
It doesn’t take much time or energy to understand why that instrument is so pernicious. It enables a Government to break the law — repeatedly and deliberately — and then block courts from subjecting its behavior to any judicial accountability, and prevent the public from learning about the lawbreaking, by claiming that its conduct generally is too secret to allow any judicial review. Put another way, it places Presidents and their aides beyond and above the rule of law, since it empowers them to break the law and then prevent their victims — or anyone else — from holding them accountable in a court of law. As Russ Feingold put it:
When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.
In defending the Obama administration’s position (without beginning to understand it), The Atlantic‘s Marc Ambinder revealingly wrote — on behalf of civil libertarians who he fantasizes have anointed him their spokesman:
It wouldn’t be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn’t necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)
We don’t actually have a system of government (or at least we’re not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely. That, by definition, is how grateful subjects of benevolent tyrants think (“this power was bad in Bush’s hands because he’s bad, but it’s OK in Obama’s hands because he is good and kind”). Countries that are nations of laws rather than of men don’t rely on blind faith in the good character of leaders to prevent abuse. They rely on what we call “law” and “accountability” and “checks and balances” to provide those safeguards — exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.
Democrats have large majorities in both houses of Congress; they ought to use it to legislatively bar the power that the Obama DOJ is now attempting to vest in the new President by enacting the legislation they spent all of last year insisting they favored. Now that the Obama DOJ is seeking to acquire that power for its new President, the need for that law is more acute than ever.