Wednesday, February 11, 2009

NYT Horrified that Secrets Could Remain Secret

There's a pretty funny editorial up in the New York Times, attacking Obama for maintaining the Bush administration's "state secrets argument" regarding allegations of torture by five individuals affected by rendition. The tone of righteous indignation that Obama would do such a thing is hilarious to behold. The op-ed looks like something a leftist blogger might have written. Like most on the left, the Times makes assertions as if they were indisputable fact. For example,
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.
Actually, to many people living in the real world, that argument is quite persuasive. Apparently it is persuasive even to the Obama administration, who, now that they are in power, have to deal with the reality that sometimes national security involves secrecy. And amazingly enough, protecting the U.S. is more important than the purely theoretical rights of a few alien terrorist suspects who claim they were tortured. Even the Obama administration seems to understand that, unlike the New York Times. The Times says
the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
Why not? Embarrassing charges that can damage the U.S. and possibly affect current operations are exactly the kind of things that should be covered up by invoking state secrets. In addition, the Obama administration has already decided to continue the rendition program. Why risk compromising it by having damaging secrets come out in court?

If the New York Times editorial board is screaming, and all the so-called civil libertarian protectors of foreign terrorist "rights" are upset, you know the Obama administration did something right for a change. In my opinion, the secret operations of the CIA do not belong in the court system. If innocent people were tortured, or even just detained unjustly, quiet restitution should be made, and worked out in conjunction with the home countries of the victims. They aren't U.S. citizens; they were seized in wartime; and they are not entitled to rights in court. I have yet to hear a decent argument as to why the U.S. should expose its secret operations in civilian court, just to satisfy some alien terror suspects. The job of the U.S. government is to protect the U.S. and its citizens first. And if that causes difficulties for foreign nationals, their governments can take it up with ours, and a settlement can be worked out. 


  1. States Secrets Legislation Re-Introduced:

    The legislation codifies best practices that some courts use but others don't, like the appointment of special masters to independently evaluate intelligence information. The government would be required to disclose the evidence behind its particular privilege claims to judges, and not merely assert that such evidence exist. Also, judges wouldn't be able to dismiss the case solely because the privilege has been asserted; the pleadings stage must have been underway, along with document discovery. (Note: judges can still dismiss the case solely based on the privilege claim, but he or she must vet the information in a legal proceeding beforehand, and must allow the defense to make a counterlcaim.) The legislation would establish new safeguards for protecting classified information and provide a way for judges to report on the cases to Congress.

    This strikes me as the right approach. Administrations should not be able to merely assert that something should be secret with no judicial review. The NYT is correct on this.

    Ambinder also speculates:

    My informed guess is that the Obama Administration will find cases to revoke the privilege's assertion. They will do so publicly and with great fanfare. They will simultaneously announce a new set of restrictions on when and how the privilege should be invoked. They will do so on their own timetable (to the extent that the courts don't force their hands), and they will do so in conjunction with the broader ideal of reconciliation and accountability. They're just not ready to do so 22 days in, and the particulars of this case weren't, in any case, ideal for them.

    I hope so.

  2. The word "terrorist suspects" is chilling. Is there any evidence that they actually did anything, besides the US government's word?

  3. Gherald,

    At first glance, that legislation seems reasonable. I'm not opposed to having some sort of oversight to evaluate secrecy claims by the executive branch.


    "Is there any evidence that they actually did anything, besides the US government's word?"

    Who cares and who knows? Again, the job of the U.S. government is to protect the U.S. and its citizens. If it has good reason to believe -- and apparently it did or it wouldn't have bothered to seize them -- that certain foreign individuals are terrorists, then I'm all for taking action against them.

    The government should err on the side of protecting the U.S. when it comes to suspect foreign nationals. If they are mistaken, they can clean it up later.

  4. What you're saying is that you don't have a problem with the way innocent Canadian citizen Maher Arar was arrested at JFK and rendered to Syria.

  5. No. From what I read the U.S. government received false information from Canada that he was an Al Qaeda member. It acted on that incorrect information. The Canadian government agreed to pay Arar 10 million dollars for their screw-up. That should be the end of it.

    It's bad that an innocent man was arrested and abused. But mistakes can happen. The Canadians are at fault here.

  6. Right on UNRR. I couldn't agree more with your post. I was very disappointed when I read that shallow piece in the Times.