Seeing the Obama Administration adopt the Bush Administration’s position on the State Secrets privilege, thereby denying torture victims due process, is tremendously disheartening. But perhaps some semblance of justice is still possible.
First a little background. The State Secrets privilege is one of a number of evidentiary privileges (rules that protect confidential information from disclosure in legal proceedings) recognized by the law. Such privileges are generally supposed to be narrowly applied, since they are in derogation of the common law rule that in judicial proceedings the search for the truth is supreme.
In the case of the State Secrets privilege, however, the Bush Administration succeeded in getting courts to apply the rule in an extraordinarily broad fashion. They actually convinced courts to completely dismiss lawsuits, thereby denying the plaintiffs their day in court, based upon the perceived risk the litigation in question could expose state secrets to public light.
And now, in a staggeringly disappointing (if more understandable than some claim) development, the Obama Administration has officially signed onto this Bush Administration position on the privilege hook, line and sinker, at least in one case. Here are the ugly details:
(The New York Times) Obama Backs Off a Reversal on Secrets
SAN FRANCISCO — In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Not surprisingly, this has produced a lot of hand wringing among civil liberties groups and more generally in the blogosphere. And while I join in their disappointment, I have to confess to finding myself feeling a little less dogmatic about it than do many. This just isn’t as easy a call as it sounds. Speaking as a civil trial lawyer, I know personally that civil discovery can be an unwieldy and unpredictable process.
It would be disingenuous to claim that litigation of this nature would pose no risk at all of unintended disclosure of state secrets — say during a deposition. This risk, while subject to being significantly mitigated, is real. Does that justify throwing lawsuits out of court completely? In my opinion, no. But it isn’t as clean an issue as some are suggesting. It just isn’t.
But none of that takes away from the profound injustice denying injured parties a hearing represents.
Most of the people blasting the decision are doing so on the grounds of governmental transparency — accusing Obama of continuing Bush’s practice of trying to hide the ball on torture. While these concerns are legitimate, I have a somewhat different bone to pick. Courts and lawsuits, after all, aren’t the only way of bringing information of public wrongdoing into the public light (although they can be important ways): I think the jury’s still out on how far Obama will go to protect Bush’s dirty laundry.
Assuming — and, yes, the current signs aren’t as encouraging as I wish they were — that Obama ultimately agrees to some mechanism — be it criminal prosecutions or a truth commission of some sort — to investigate torture under the previous administration, the interests of public disclosure will be satisfied. And this will be true regardless of whether lawsuits go forward.
But even if that happens, the rights of those tortured will not have been vindicated. And that’s the great injustice I see here, the denial of fair play to individuals who have been subjected to torture, good government concerns be damned.
And what that means, to my mind, is that if our government insists that the sanctity of protecting State Secrets requires prohibiting traditional lawsuits by people subjected to torture (to be clear, a conclusion I disagree with), then the government is morally compelled to come up with an alternative mechanism to provide individual justice. And justice in this context must mean both compensation and public vindication — a monetary award and a public acknowledgement the person in question was tortured.
Using an administrative law “court” would be one possibility. This would allow the government to assure greater secrecy (and, yes, a little less due process) by restricting access to sensitive information. Perhaps some documentation and testimony would be reviewed solely by the “judge,” with counsel denied access: and, yes, this would be procedurally unfair when viewed in the light of our adversarial system of justice, but at least the information would be reviewed by an independent tribunal.
Assuming meticulous care were used in selecting truly independent and honorable “judges,” some fair degree of justice would likely flow from such a process.
At the same time, any damages awarded by such a congressionally authorized administrative tribunal could, by specific legislative decree, be made payable in installments, subject to a forfeiture clause. This would make certain that a large verdict wouldn’t end up in the hands of a terrorist organization (like it or not, a lot of the people tortured weren’t Boy Scouts).
Personally I favor full justice for torture victims, including a jury trial with all the fixings. But if that isn’t going to happen, some alternative must be found.
To simply slam the courthouse doors shut doesn’t begin to cut it.