HENTOFF: Obama’s ‘state secrets’ echo Bush

OP-ED:

Last year, Britain’s Foreign Office angered the British High Court by ordering it to censor seven paragraphs from a previous ruling in the case of a British legal resident, Binyam Mohamed, who had been “rendered” and tortured by the CIA in Afghanistan, Pakistan, Morocco and Guantanamo.

This muzzling of the High Court was caused by a Bush State Department threat to the Foreign Office, a threat renewed last month when Mr. Mohamed’s case came again before the High Court.

Last August, John Bellinger, then chief legal adviser to the State Department, wrote the Foreign Office: “We want to affirm in the clearest terms that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to U.S. national security, and could harm existing intelligence-sharing arrangements between our two governments.”

On Feb. 4, the British High Court wanted to finally disclose those seven paragraphs summarizing actual U.S. reports on Mr. Mohamed’s treatment, paragraphs originally provided to the Foreign Office. The judges expected that “the situation had changed significantly following the election of President Barack Obama, who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment.” (That court is also interested in British involvement with Mr. Mohamed’s interrogations.)

Although all U.S. charges against Mr. Mohamed were dropped last year, this year the Obama administration continues to demand that those seven paragraphs remain secret and was reported by the New York Times on Feb. 18 as having thanked the British government “for its continued commitment to protect sensitive national security administration.”

As Mr. Obama’s Attorney General Eric Holder has already shown in another case involving Mr. Mohamed before the U.S. 9th Circuit Court of Appeals, the Bush-Cheney “State Secrets” policy continues to reign in the Obama administration.

Even a letter sent directly to Mr. Obama by Mr. Mohamed’s British lawyers to look into “the truly medieval ways” in which Mr. Mohamed was tortured has not changed the president’s mind. (See the Jurist Legal News & Research, Web site, Feb. 12).

In the 9th Circuit court papers (Mohamed v. Jeppesen Dataplan Inc.), American Civil Liberties Union lawyers for Mr. Mohamed cite his claim that in Morocco, “his clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis.” It is reasonable to believe that the seven paragraphs involuntarily censored by the British High Court would be quite useful to Mr. Mohamed’s case in both the British and American courts.

The High Court in England reacted angrily to the Obama administration refusal to annul the Bush threat to impair relations with British intelligence about the release of the seven paragraphs. The High Court declared on Feb. 5 its acute disappointment that the United States, “governed by the rule of law,” would continue to censor evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”

Mr. Mohamed, who was on a hunger strike (his only form of protest) at Guantanamo Bay, has finally been released and returned home to England where his lawyers continue to press his case concerning his treatment by the CIA.

The Obama administration wanted a gag rule imposed on the returned Mr. Mohamed, but his lawyers rejected the demand (New York Times, Feb. 24). Before his release, as reported Feb. 18 by the New York Times’ Raymond Bonner, a member of Mr. Mohamed’s legal team - U.S. Air Force Lt. Col. Yvonne Bradley - told reporters his torture by the Moroccans “would make waterboarding seem like child’s play.”

In San Francisco, at the 9th Circuit Court of Appeals, Mr. Mohamed is one of five victims of CIA kidnapping who are charging a subsidiary of giant Boeing Aircraft with providing planes and logistics for the harrowing CIA renditions flights. Mr. Holder sent Justice Department lawyer Douglas Letter to order the court to dismiss the case without discussing it in court.

One of the startled judges, Mary Schroeder, asked: “The change in administration has no bearing?” She was assured that the Obama government’s echo policy on state secrets has been “thoroughly vetted with the new administration.” Another surprised judge, William Canby, puzzled by the invocation of “state secrets,” asked: “You can say something is secret even when a newspaper reporter has it?” (Many newspaper reporters, including this writer, have written in detail about the CIA’s torture flights, including those of the shackled Mr. Mohamed.)

On the same day that the attorney general’s silencer addressed the court, Mr. Holder himself announced that the Justice Department will review all the pending cases in which the Bush administration asserted state secrets, to ensure they are invoked “only in legally appropriate situations.” I wonder if the attorney general gets extra pay for being the president’s emergency public relations flack while actually commanding that this crucial case be dismissed.

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