Check your state secret privilege
by digby
Back when he was a big civil libertarian, open government kind of guy, the president used to say some really good stuff:
During the 2008 presidential campaign, Barack Obama hammered George W. Bush for expanding government secrecy. Obama promised that his would be the most transparent and open administration ever. In particular, Obama criticized the Bush administration's use of a legal loophole known as the state secrets privilege. Citing this privilege, government lawyers can keep evidence and testimony from being introduced in court that would reveal government secrets. That means that if someone sues the government for wrongdoing—say, a plaintiff claims that he or she was illegally spied on or tortured at the behest of the US government—the Justice Department can claim key pieces of evidence will expose national security secrets and prevent this material from being used in court. Doing so would hinder or outright squash the person's case.
In 2008, Obama griped that the Bush administration invoked the state secrets privilege "more than any other previous administration" and used it to get entire lawsuits thrown out of court. Critics noted that deploying the state secrets privilege allowed the Bush administration to shut down cases that might have revealed government misconduct or caused embarrassment, including those regarding constitutionally dubious warrantless wiretapping and the CIA's kidnapping and torture of Khaled el-Masri, a German car salesman the government had mistaken for an alleged Al Qaeda leader with the same name. After Obama took office, his attorney general, Eric Holder, promised to significantly limit the use of this controversial legal doctrine. Holder vowed never to use it to "conceal violations of the law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency of the United States Government."
Guess what?
Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list.
Just consider the scope of those two cases. One is a situation where a man ha his genitals cut with a scalpel after he was "rendered" to Morocco by the CIA. The other is someone wanting to know on what basis they have been flagged by the TSA as a threat. From inconvenience to torture, the government says it's all one big secret. And there's nothing you can do about it ... because it's a secret, it can't be litigated through a normal legal process.
Most people who believe the government has to do this argue that because the threat is so dire we must be willing to so this in order to keep the babies safe. Setting aside the valid retort that we are actually making the world less safe with all this paranoia and by feeding into the mythos of the extremists, how can we explain the fact that the same government agencies that are continuously sounding the shrill threat siren turned out to have been lying through their teeth about the extent of the Cold War threat in order to advance their own agenda? I suppose it might be different this time. But I wouldn't count on it.
Update: This is becoming absurd:
President Obama is “absolutely” the most transparent president in history, White House press secretary Josh Earnest said Sunday after the White House received a letter from signed by a dozen top journalists’ groups complaining about the administration’s policies toward the media.
“There are a number of steps that we've taken to give people greater insight into what's happening at the White House,” Earnest said in an interview with CNN’s “Reliable Sources.”
The letter, signed by the Society of Professional Journalists and the Poynter Institute, among others, accuses the White House of "politically driven suppression of news and information about federal agencies."
It asks the president to create an ombudsman charged with enforcing his goal of government transparency, and asks Obama "issue a clear directive telling federal employees they're not only free to answer questions from reporters and the public, but actually encouraged to do so.”
“We believe that is one of the most important things you can do for the nation now, before the policies become even more entrenched,” the letter says.
Press Secretary Earnest (a perfect Dickensian name if there ever was one) explained that this simply isn't an issue no matter what these people think. The Obama administration is the most open and transparent in history because it tells reporters where the president goes for fundraisers and who visits the White House. What more could they possibly need?
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