October 8, 2009

(updated below - Update II - Update III)

The American Propsect's Adam Serwer notes that, yesterday, Sen. Joe Lieberman successfully inserted into the Homeland Security appropriations bill an amendment -- supported by the Obama White House -- to provide an exemption from the Freedom of Information Act's mandates by authorizing the Defense Secretary to suppress long-concealed photographs of detainee abuse.  Two courts had ruled -- unanimously -- that the American people have the right to see these photographs under FOIA, a 40-year-old law championed by the Democrats in the LBJ era and long considered a crowning jewel in their legislative achievements.  But this Lieberman amendment, which is now likely to pass, undermines all of that and -- as EBay founder Pierre Omidyar put it today -- its central purpose is to "legalize suppression" of evidence of American war crimes.  

What made those detainee photographs so important from the start is that they depict brutal abuse well outside of the Abu Ghraib facility and thus reveal to Americans -- and the world -- that America's torture was not, as they've been constantly told, limited to rogue sadists at Abu Ghraib and the waterboarding of three bad guys.  Instead, our torture regime was systematic, pervasive, brutal, fatal, and -- becuase it was the by-product of conscious policies set at the highest levels of government -- common across America's "War on Terror" detention regime.  These photographs would have documented those vital facts; combated the false denials from torture apologists; fueled the momentum for accountability; and revealed, in graphic and unavoidable terms, what was truly done by America's government.  But a Democrat-led Congress, at the urging of a Democratic President, is now taking extraordinary steps -- including a new law which has no purpose other than to suppress evidence of America's war crimes -- to ensure that this evidence never sees the light of day.

If an historian were to write about the events of the first nine months of 2009 when it came to transparency issues as they relate to the war crimes of the Bush years, the following is what would be written.  Just remember this was all done with an overwhelming Democratic majority in both houses of Congress and a Democratic President elected on a promise to usher in "an unprecedented level of openness in Government" and "a new era of openness in our country."  There's no blaming Republicans for any of this:

In February, the Obama DOJ went to court to block victims of rendition and torture from having a day in court, adopting in full the Bush argument that whatever was done to the victims is a "state secret" and national security would be harmed if the case proceeded.  The following week, the Obama DOJ invoked the same "secrecy" argument to insist that victims of illegal warrantless eavesdropping must be barred from a day in court, and when the Obama administration lost that argument, they engaged in a series of extraordinary manuevers to avoid complying with the court's order that the case proceed, to the point where the GOP-appointed federal judge threatened the Government with sanctions for noncompliance.  Two weeks later, "the Obama administration, siding with former President George W. Bush, [tried] to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails." 

In April, the Obama DOJ, in order to demand dismissal of a lawsuit brought against Bush officials for illegal spying on Americans, not only invoked the Bush/Cheney "state secrets" theory, but also invented a brand new "sovereign immunity" claim to insist Bush officials are immune from consequences for illegal domestic spying.  The same month -- in the case brought by torture victims -- an appeals court ruled against the Obama DOJ on its "secrecy" claims, yet the administration vowed to keep appealing to prevent any judicial review of the interrogation program.  In responses to these abuses, a handful of Democratic legislators re-introduced Bush-era legislation to restrict the President from asserting "state secrets" claims to dismiss lawsuits, but it stalled in Congress all year.  At the end of April and then again in August, the administration did respond to a FOIA lawsuit seeking the release of torture documents by releasing some of those documents, emphasizing that they had no choice in light of clear legal requirements. 

In May, after the British High Court ruled that a torture victim had the right to obtain evidence in the possession of British intelligence agencies documeting the CIA's abuse of him, the Obama administration threatened that it would cut off intelligence-sharing with Britain if the court revealed those facts, causing the court to conceal them.  Also in May, Obama announced he had changed his mind and would fight-- rather than comply with -- two separate, unanimous court orders compelling the disclosure of Bush-era torture photos, and weeks later, vowed he would do anything (including issue an Executive Order or support a new FISA exemption) to prevent disclosure of those photos in the event he lost yet again, this time in the Supreme Court.  In June, the administration "objected to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees at secret prisons, arguing to a federal judge that doing so would endanger national security."  In August, Obama Attorney General Eric Holder announced that while some rogue torturers may be subject to prosecution, any Bush officials who relied on Bush DOJ torture memos in "good faith" will "be protected from legal jeopardy."  And all year long, the Obama DOJ fought (unsuccessfully) to keep encaged at Guantanamo a man whom Bush officials had tortured while knowing he was innocent.

That's the record which an historian, wedded as faithfully as possible to a narration of indisputable facts, would be compelled to write.  And those are just disclosure and transparency issues relating to Bush-era crimes.  None of that has anything to do with ongoing assertion of detention powers, habeas corpus denials, renditions, transparency issues generally, the Democrats' active efforts just this week to prevent abuses of the Patriot Act and FISA, etc. (for those with Twitter, just read Marcy Wheeler's infuriating account from the last two hours of how key Democrats in the Senate -- led by Dianne Feinstein and Pat Leahy -- just gutted virtually every effort to rein in Patriot Act and FISA abuses that were sponsored by Feingold, Durbin and even Arlen Specter:  NAJIBULLAH ZAZI!!!).  And now this war on transparency is all culminating with a White House-backed effort -- spearheaded by key ally Joe Lieberman -- to sweep aside two federal court rulings and to write a new exemption for FOIA that has no purpose but to prevent the world from seeing new and critical evidence of systematic American war crimes.  If the stated goal of Democrats had been to use their newfound control of Government to protect and suppress Bush-era war crimes, how could they have done any better?

UPDATE:  When I interviewed House Rules Committee Chairwoman Louise Slaughter back in June, she vowed to do everything possible to stop the Lieberman/Graham/Obama photo suppression amendment, arguing that FOIA was every bit "as sacred to Democrats as Social Security and Medicare."  If only that were true.  Back in June, Slaughter -- with the help of an intense campaign from blogs and civil libertarians -- did succeed in blocking its enactment, but as Mother Jones' Nick Baumann reports, the legislative mechanism used by Lieberman this week virtually assures its passage, even though Slaughter vows still to oppose it.

Two other related notes:  (1) a journalist emails me to remind that I should add to Obama's anti-transparency crusade the White House's efforts to water down the "journalist shield law" to the point where it would easily enable the Government to compel disclosure of the identity of whistle-blowers in the national security context (i.e., the kind who told Dana Priest about CIA black sites and Eric Lichtblau about illegal NSA eavesdropping) -- a clear violation of Obama's campaign platform that was engineered by the White House in secret rather than out in the open; and (2) I wasn't able to watch the Patriot Act proceedings today, but -- in addition to Wheeler's linked descriptions above -- the normally rhetorically restrained Adam Serwer just wrote of the Senate Democrats' bill: "Senate passes PATRIOT Act Reauthorization. They should name it after J. Edgar Hoover."  

UPDATE II:  Quite related to all of this:  The Nation's Chris Hayes today examines how many liberal advocacy groups allow themselves to be controlled by the White House and subject themselves to collective message coordinating.  As Hayes notes, Jane Hamsher refers to these controlled progressive groups as the "veal pen," which she expertly described here.  There are many reasons why the reaction to things such as what I describe in today's post from progressive groups (as distinct from the very vocal civil liberties groups) has been so muted and acquiescent -- e.g., a tribal refusal to criticize one's own, a gut belief that someone as good and just as Barack Obama couldn't possibly really be continuing Bush/Cheney policies and complicitly helping to suppress their war crimes, the anger that one provokes from one's own "allies" with such criticism, etc. -- but the organized co-option process which Hayes and Hamsher document, accompanied by the fear of losing access and funding, is a very significant factor.

UPDATE III:  Russ Feingold just wrote a scathing condemnation of the behavior of his Senate Democratic colleagues and, especially, the Obama administration with regard to what they just did with the Patriot Act and FISA renewals, including this:

I am also very troubled that administration officials have been taking positions behind closed doors that they are not taking publicly. . .  [I]f the administration wanted to further water down the already limited reforms in the bill that was on the table, they should have said so openly. Instead, at our only public hearing we were told that the Justice Department did not have positions on the crucial issues about to be discussed. Then, over the past week, in classified settings, the Department has weighed in against even some of the limited reforms that Sen. Leahy originally proposed.

The administration loves to posture in public as though they support various reforms -- to lead their wild-eyed supporters to believe they do -- only to work in secret to gut those same reforms.  Feingold adds that "[a]t the beginning of the year, I had high hopes for the Patriot Act reauthorization process."   Why?  Just because of small facts like these:

We had just elected a President with a strong civil liberties record in the Senate.  His Attorney General had supported some reforms during consideration of the last reauthorization bill in 2005. And Democrats controlled the Senate by such a large margin that our advantage on the Judiciary Committee ended up at 12-7 after Sen. Specter switched parties.

Despite all of that, Feingold ended up having to vote against the new Patriot Act bill that he spent all year leading because it was diluted to the point where very little was fixed and some things were actually made worse.  When it comes to transparency and civil liberties, that's what the Democratic Congress and White House are.  If the record I documented here isn't enough to see that, then take it from someone who sees them up close and personal every day.