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Reporter Warren Richey discusses the Obama administration's continued use of Bush's "state secrets" privilege argument in a terror lawsuit.

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PA wire

Rendition? Guantánamo detainee Binyam Mohammed alleges he was sent to Morocco and tortured.

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President Obama swept into the White House promising “change you can believe in.” But some Obama supporters and human rights experts are beginning to wonder how much change is in store, particularly in the new administration’s emerging antiterror policies.

In both his campaign speeches and the executive orders issued shortly after his inauguration, Mr. Obama raised expectations of a swift and substantial shift away from controversial Bush administration tactics. He has ordered Guantánamo shut down, secret CIA prisons closed, and torture banned.

But at the same time he has established committees to study a range of options, including the possibility of continuing to use harsh interrogation tactics under certain circumstances.
Analysts are watching several pending legal cases to see which Bush administration policies the new president jettisons and which ones he embraces.

Many Obama supporters were shocked Monday when the administration refused to abandon a Bush administration assertion of the “state secrets” privilege in a lawsuit charging that the US government sent suspected terrorists to foreign locations to be tortured. The lawsuit was filed against an air carrier that allegedly flew the suspects to and from the torture sites.

The state secrets doctrine allows judges to short-circuit certain litigation when the judge determines that it involves highly sensitive government information which, if disclosed, would damage US national security. Critics say the Bush administration used the privilege to avoid embarrassment and judicial scrutiny. Supporters say the privilege is needed to keep secrets and protect the ability to gather intelligence.

A federal judge threw the case out, honoring the Bush administration’s invocation of the state secrets privilege. The plaintiffs took their appeal to the Ninth US Circuit Court of Appeals in San Francisco, where one judge on the panel expressed surprise that the Justice Department under Obama was continuing to argue that the case be thrown out of court.

“That was a huge disappointment,” says Jennifer Daskal, a terrorism policy expert at Human Rights Watch. “It is inconsistent with the commitment to transparency and openness promised by the new administration.”

The case of Binyam Mohammed

In a similar episode, the British High Court recently refused to release key details about the alleged rendition and torture of a British subject named Binyam Mohammed. Mr. Mohammed, a detainee at Guantánamo, is one of five plaintiffs in the San Francisco case, but he also has a legal challenge under way in London seeking full disclosure of his treatment as a US detainee.

Mohammed’s lawyers say he was sent secretly by the US to Morocco where an interrogator beat him and used a razor to make cuts on his penis. The interrogator repeated this treatment during an extended period of time while questioning him about his alleged association with Al Qaeda, his lawyers say.

The British High Court had sought to disclose certain details and documents related to the case, in part because of the alleged involvement of British intelligence agents. But the British government urged the court not to do so because the Bush administration had threatened to stop sharing counterterrorism intelligence with London should the information be made public, according to the High Court’s decision.

The High Court noted that there was an expectation that “the situation had changed significantly following the election of President Obama, who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment.”

The High Court opinion continues: “We have, however, been informed by counsel for the Foreign Secretary that the [US] position has not changed.”

The decision says the Obama administration was acting out of a desire to maintain the secrecy of information obtained through intelligence-sharing, rather than a desire to protect the Bush administration. The High Court added, “However, as we have observed the United States government will still not make the information public.”

Some analysts question the new administration’s motives in the London and San Francisco cases. “It is clear there is an interest in covering up part of the past, and to cover up some of the wrongs that occurred during the Bush administration,” says Christopher Anders, senior legislative counsel at the American Civil Liberties Union in Washington.

Investigating torture allegations

The next big test, says Mr. Anders, will be whether the Obama administration authorizes criminal investigations of alleged torture and abuse of suspected terrorists under the Bush administration. “The statute of limitations period is starting to run out on some of these potential crimes,” he says.

Many analysts are also monitoring the pending US Supreme Court case of Ali Saleh al Marri. In that case, the justices are being asked to examine whether the president can order indefinite military detention without charge of a foreign college student who was legally present in the US but suspected of being an Al Qaeda sleeper agent. The government’s brief is due to be filed March 23.

Mr. Marri’s lawyer, ACLU’s Jonathan Hafetz, says it would be a significant departure for Obama to adopt the Bush administration’s approach to the case. “It is a very extreme position they are asserting,” he says.

Ms. Daskal agrees. “The strong hope and expectation is that President Obama will moot the entire proceeding by returning Marri to federal court for prosecution or transferring him to Qatar, his home country,” she says.

Despite what they view as setbacks, many analysts caution that the new administration has just taken office. Multiple policy reviews are under way, they say.

“I am putting my faith in this president and his administration to do the right thing,” says Barbara Olshansky, a Stanford law professor who is representing detainees at a US military prison in Afghanistan.

“I really had lost hope,” she said of her legal battles during the Bush administration. “It has been a really long fight and I had lost hope and I have it back – which is kind of an amazing thing to say.”

Anders urges Americans to be vigilant. “People have to hold their government accountable, whether it is George Bush’s government or Barack Obama’s government,” he says.

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