April 21, 2009

Obama’s Torture Two-Step

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President Obama’s decision to release internal CIA documents detailing interrogation techniques represents a fundamental contradiction in his policy towards torture and transparency. President Obama has vehemently expressed his opposition to anything that can be construed as torture (rightly so) and one of his first actions as President was to close down Guantanamo Bay. However, President Obama has decided to “move forward” by releasing these torture memos, yet maintains the same state secret arguments that President Bush utilized. President Obama cannot have it both ways.

There are several cases which the administration has argued on grounds that state secrets need to be protected, yet President Obama seems to be fine with releasing classified CIA documents. Consider the case of Fadi al Maqaleh (Warning: PDF), where it was ruled that enemy combatants held at Bagram Airfield in Afghanistan have the right to a write of habeas corpus. The government (aka President Obama) argued that the detainees are enemy combatants and thus are not eligible to be granted a writ of habeas corpus. This brings back memories of the Boumediene v. Bush case, where Bush argued the very same principles argued by Obama.

In another case, Binyam Mohamed v. Jeppesen Dataplan, Inc., the government attempted to have the case dismissed on the premise that state secrets were in jeopardy. The plaintiffs alleged that they were illegally detained and transported to secret detention centers where they were interrogated using unlawful methods. This case was brought to district court in 2008, where the government argued that state secrets were in jeopardy and therefore the case could not proceed. When argued in the 9th Circuit Court of Appeals a year later, the arguments were the same. When the DOJ attorney was asked, “The change in administration has no bearing, the government’s position is the same?” the attorney replied that no, the change in administration does not alter the government’s position regarding state secrets.

These two cases are evidence enough that President Obama is trying to have his cake and eat it too with regard to executive power and interrogation. The President released the torture memos under the pretext of transparency. When he argues that state secrets are in jeopardy though, how can transparency truly be achieved? Cases must be handled on an individual basis and there is no blanket rule as to when the state secrets power should be invoked, this is for the courts to decide. However, to claim that we have moved forward and that we can leave an era of questionable interrogation techniques behind us is unfair and false.

President Obama should not have released these CIA documents because at the least the release of the documents is a purely symbolic move that offers no benefits, and at the worst the release invites criticism of hypocrisy and hinders the administration. A more appropriate approach would have been to internally investigate the legal justifications established by the DOJ and release documents only if the courts mandated disclosure. The issues of enemy combatants, harsh interrogation techniques and state secrets are not easy ones to make sense of in light of the untraditional war in which the U.S. is engaged. What is clear is that the U.S. should in no way torture, and that the ends do not necessarily justify the legal means. However, to substitute Guantanamo Bay for Bagram Airfield is inconsistent, undermines President Obama’s credibility and highlights the legal complexity of the time in which we live.