Reason Magazine, November 26, 2010


During his presidential campaign, Barack Obama criticized the Bush administration for its excessive secrecy, noting that it had "invoked a legal tool known as the 'state secrets’ privilege more than any other previous administration to get cases thrown out of civil court." Obama also promised to end "extraordinary rendition," a practice through which "we outsource our torture to other countries."

In September, however, the Obama administration used the state secrets privilege to block a lawsuit by five former captives who say they were tortured as a result of extraordinary rendition. Although candidate Obama surely would have been outraged, President Obama is for some reason less concerned about abuses of executive power.

"To build a better, freer world," Obama the candidate wrote in a 2007 Foreign Affairs essay, requires "ending the [practice] of shipping away prisoners in the dead of night to be tortured in far-off countries." It turned out Obama meant that he, like his predecessor, would seek assurances that detainees transferred to other countries would not be mistreated. After all, why would governments that routinely torture their prisoners lie about it?

Obama’s broken promise sheds light on his determination to suppress a lawsuit by five men who sued the Boeing subsidiary Jeppesen DataPlan over its role in helping arrange prisoner flights during the Bush administration. The lead plaintiff, Binyam Mohamed, is an Ethiopian citizen and legal U.K. resident who was arrested in Pakistan on immigration charges in 2002. He says he was turned over to the CIA, which flew him to Morocco, where he was held for 18 months and subjected to "severe physical and psychological torture." Moroccan security agents allegedly beat him, broke his bones, and cut him with a scalpel all over his body, including his genitals, after which they would pour a "hot stinging liquid" into the wounds. His four co-plaintiffs tell similar stories of abuse at the hands of Moroccan, Egyptian, Jordanian, and American officials.

Even if every word these men say is true, the Obama administration argues, they cannot be allowed to pursue their claims because doing so might endanger national security. In September the U.S. Court of Appeals for the 9th Circuit narrowly accepted this maximalist position, dismissing the lawsuit rather than letting it proceed based on publicly available evidence.

An administration truly concerned about excessive secrecy would have waited to see if either side in the lawsuit actually needed privileged information to make its case. Instead Obama, like George W. Bush before him, insisted that the mere possibility was enough to deprive torture victims of a legal remedy.

In May the Obama administration used a similar argument to block a lawsuit by Maher Arar, a Canadian engineer whom U.S. officials erroneously identified as a member of Al Qaeda and sent to Syria, where he was imprisoned for a year and repeatedly beaten. Although the details of Arar’s case have been public for years, Acting Solicitor General Neal Katyal nevertheless urged the Supreme Court not to hear his appeal, citing "significant national security concerns."

Specifically, Katyal worried that addressing Arar’s claims would require courts to "review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning petitioner’s likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria consistent with" the U.N. Convention Against Torture.

Given President Obama’s plans to continue extraordinary rendition under a different name, you can see why he’d rather not delve into questions like these. But candidate Obama told us to be wary of presidents who use national security as a cover for violating people’s rights.

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.