With Liberty and Justice for Some (21 page)

The government, however, told the court that disclosing these records would jeopardize national security, as it risked letting America’s enemies learn the secret design of the aircraft. The Supreme Court agreed and ruled that, notwithstanding their obvious relevance, the government could keep these sensitive documents hidden. It was only in 2000, when the maintenance records were obtained via a Freedom of Information Act request filed by one of the pilots’ family members, that it was revealed that the government had blatantly lied to the court. The records in question contained no military secrets at all but were full of information showing that there had indeed been gross negligence in how the plane’s engines had been maintained by the air force.

Under Bush, the state secrets privilege was wildly expanded in scope. Rather than merely asking to have specific documents excluded from court proceedings (the way that other privileges, such as attorney-client or doctor-patient privilege, are used), the Bush DOJ began applying the doctrine to lawsuits themselves, arguing that the entire subject matter of some particular suits was so secretive that no court could safely hear the case. Bush’s lawyers repeatedly used this claim to prevent courts from ruling on the legality of their actions in almost every realm relating to national security, including eavesdropping, torture, and renditions, among others. In other words, while Bush officials publicly insisted their conduct was lawful, they did everything in their power to prevent their victims from obtaining judicial rulings on that question. Thus did they convert the “state secrets” doctrine from a narrow evidentiary privilege into one vesting high-level officials with full-scale legal immunity.

The Bush DOJ’s continuous use of the state secrets privilege as a way to shield its conduct from judicial review was a constant source of Democratic grievance. Numerous senators, including Joe Biden and Hillary Clinton, cosponsored legislation to severely curtail use of this doctrine on the ground that it was being abused. And throughout the 2008 campaign, the Obama/Biden Web site prominently displayed the phrase “Plan to Change Washington,” under which one found the following: “THE PROBLEM: Secrecy Dominates Government: The Bush administration…has invoked a legal tool known as ‘the state secrets privilege’ more than any other administration to get cases thrown out of civil court.”

Yet from the very start of his presidency, Obama has used this privilege as aggressively as Bush, and in the same radical form. In Mohamed’s suit against Jeppesen, the DOJ argued that the entire subject matter of the lawsuit—Bush’s torture and rendition program—was a “state secret” beyond the reach of courts. Based on this theory, the DOJ succeeded in having the case dismissed.

The following month, Obama invoked the same state secrets privilege to deal with the latest round of lawsuits brought against the government in the aftermath of the NSA wiretapping scandal. These new lawsuits had been explicitly invited by the Democrats back in 2008, after the retroactive immunity granted to the telecoms had caused intense anger among their supporters. To mitigate the backlash, leading Democratic senators had insisted that architects of the warrantless eavesdropping program could still be held accountable: instead of suing the telecoms, people could sue the government directly, notwithstanding the Bush DOJ claim that the wiretapping program was a state secret. As Jay Rockefeller, one of the main proponents of telecom immunity, wrote in an op-ed in the
Washington Post
: “Lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable.”

The Electronic Frontier Foundation took the Democrats at their word, commencing a lawsuit against the government and the Bush officials who had been responsible for the illegal spying. Yet Obama, who as a candidate had loudly denounced the warrantless wiretapping as a crime, now embraced the Bush arguments. The entire NSA program, he declared, was a vital state secret and could not be examined by the courts.

In addition, the Obama DOJ invented a brand-new claim of immunity to shield the Bush officials. Responding to the EFF lawsuit, Obama’s lawyers argued that government officials can never be held accountable for warrantless spying—even when the spying is
knowingly
illegal—unless those officials “willfully disclose” what they learn. Not even the Bush DOJ had ever made such a claim. As a headline from the EFF put it: “Obama DOJ’s New Arguments Are Worse Than Bush’s.”

All of these events led the liberal Web site Talking Points Memo to issue a strong condemnation of the Obama administration for “mimicking its predecessor on issues of secrecy and the war on terror.”

When a president’s illegal acts, conducted in secret, are shielded from judicial review, we are far indeed from
Marbury v. Madison
.

The Obama administration has not even shied away from explicitly asserting that executive branch officials are beyond the reach of the law. In 2009, Jose Padilla—an American citizen who was imprisoned for years without charges and tortured during his detention—sued the Bush OLC lawyer John Yoo for having authorized the torture regime. The Obama DOJ vigorously defended Yoo, demanding dismissal of the lawsuit at the outset on the grounds that even if the allegations were true, Yoo could not be held legally accountable for his acts because he was a government official who had acted in “good faith.” This position prompted what one Bloomberg report described as “surprise” from the Bush 43–appointed federal judge, who reminded the DOJ lawyer: “The allegation is that Professor Yoo knew what the law was, knew that he was not following the law, knew he was not following constitutional precedent, and intentionally gave incorrect information to give cover for illegal activity.” As the judge noted, since Yoo is alleged to have “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights,” it is imperative that he be required to answer for his actions in court like any other citizen. The case is now pending before the Supreme Court.

The Obama DOJ’s most egregious defense of lawlessness was yet to come. In January 2010, it was revealed that Obama had claimed the right to have American citizens assassinated if he thought that they were “terrorists”—even if those citizens were far from any actual battlefield and had never been charged with any crime. The
Washington Post
’s Dana Priest reported that at least three Americans were on the president’s hit list. On April 7, 2010, both the
New York Times
and
Washington Post
confirmed that, as the
Times
put it, “the Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki.”

As a result of these reports, Awlaki’s father brought suit against the Obama administration in a U.S. federal court, arguing that the planned assassination of his son was unconstitutional and asking the court to order it stopped. In response, the administration raised the state secrets privilege, proclaiming that the court was barred from even hearing the Awlaki case. In other words, according to the Obama DOJ, not only does the president have the right to sentence Americans to death with no due process or charges of any kind, but his decisions on who will be killed and why he wants them dead are state secrets that no court may review or even know about. The president thus asserts the power to be judge, jury, and executioner. (In the Awlaki case, a federal judge eventually dismissed the suit on the ground that Awlaki’s father had no standing to sue on behalf of his son, and on the further ground that courts should not intervene in military decisions of the president.)

There is seemingly no limit to the willingness of the Obama administration to protect itself and fellow political elites from legal consequences. When I began writing this book, I was certain that one particular case would offer a serious counterexample to my thesis that the politically powerful are exempt from legal accountability. In January 2008, it was revealed that after various detainees had spoken about being tortured, the CIA had deliberately destroyed numerous videotapes of their interrogations. The CIA officials got rid of these videos despite numerous court orders, and an express directive from the 9/11 Commission, to preserve all such evidence. When they learned of the CIA’s act, the two very sober and rhetorically restrained cochairmen of the commission, Lee Hamilton and Thomas Kean, wrote an indignant op-ed in the
New York Times
accusing the CIA of  “obstruction.” Later, the
New York Times
reported that the destruction of the videos had been undertaken with the knowledge, and possibly at the direction, of several key Bush White House officials.

The criminality here seemed so glaring and obvious—it’s the dictionary definition of
obstruction of justice
—that I expected there to be at least some indictments. I believed this would be, as the cliché goes, the exception that proved the rule. Even our political class, I thought, couldn’t allow lawbreaking this brazen to go entirely unpunished. But I was wrong. Clearly, there is no such thing in today’s Washington as cynicism that is too extreme, nor elite criminality too egregious to enjoy a shield of immunity. In November 2010, the Obama DOJ announced that it was closing its investigation of the matter without bringing charges against anyone involved.

It’s instructive to compare how victims of the American “war on terror” have been treated in the U.S. judicial system with their treatment in foreign venues. Maher Arar—an innocent Canadian citizen who was abducted by the United States in 2002 at JFK Airport and sent to Syria to be tortured for ten months—had his case dismissed by American courts without a trial under the state secrets privilege. By contrast, the Canadian prime minister publicly apologized to Arar and announced that Arar would be paid $8.9 million in compensation for Canada’s role in what happened to him.

Binyam Mohamed—the British resident who was rendered to Morocco and then brutally tortured at Guantánamo—suffered the same fate in American courts as Arar: the DOJ deprived him of a hearing by insisting that what was done to him was a state secret. On the other hand, British courts repeatedly ruled in Mohamed’s favor, and in November 2010 it was announced that the British government would pay him, along with fifteen other Guantánamo detainees, several million dollars in damages. Similarly, in January 2011 an Australian citizen, Mamdouh Habib, reached a monetary settlement with the Australian government after winning the right to sue Australian officials in that nation’s court system for their collusion in his torture at Guantánamo and other locations. Numerous countries in both eastern and western Europe have probed their governments’ role in colluding with the United States in abusing human rights over the last decade; the U.S. government, which led the way in creating this torture and detention system, stands alone in steadfastly blocking all such investigations. Indeed, the American political class barely bothers any longer with even the pretense of legal accountability and, with increasing frequency, is being quite blatant about its repudiation of it.

The Watchdog Press Opposes Accountability

It was not just President Obama, many leading Democratic officials, and virtually all GOP politicians who opposed investigating Bush-era crimes. Joining them were the denizens of the establishment media, who rose up, as they always do, to echo the consensus of the most powerful political figures. With few exceptions, these self-proclaimed crusaders for disclosure and accountability marched in lockstep, demanding that when it came to pervasive criminality in the Bush administration there should be no disclosure or accountability of any kind.

The journalists’ coddling of politicians both reflected and bolstered the culture of impunity. One of their favorite tactics was to argue—often falsely—that the public opposes any investigations of political misdeeds. Frequently, media figures asserted that looking into allegations of Bush wrongdoing would doom the Democrats, even when polls revealed exactly the opposite.

To take just one example: On March 25, 2007, MSNBC’s Chris Matthews gathered together four journalists to discuss whether Democrats should attempt to compel the top Bush White House aide Karl Rove to respond to congressional subpoenas. Those subpoenas had been issued as part of an investigation into the firings of eight U.S. attorneys, after evidence had emerged that these prosecutors were terminated either because of their refusal to go after Democratic officials targeted by the White House or because they had dared to probe the potential lawbreaking of GOP officials. In other words, the core allegation of this scandal was that the Bush White House had converted the DOJ into its own political arm and was firing honest prosecutors who refused to advance that agenda. Rove had raised dubious arguments, grounded in sweeping claims of executive privilege, as to why he was not obligated to comply with the subpoenas.

Matthews and his guests—
Time
managing editor Rick Stengel, MSNBC’s Norah O’Donnell, Gloria Borger of
U.S. News & World Report
, and Patrick Healy of the
New York Times
—spent four straight minutes scoffing at the idea that Rove or other White House aides should be investigated to determine whether they had played any role in the firings. The well-documented allegations that powerful executive branch officials were subverting the core mission of the Justice Department could not have been less interesting to the journalists.