"Most Transparent Administration In History"

Sorry, I was out for a bit.

There was an expectation of this today, and now the Obama Administration made it official - they're going back to court to block the release of thousands of photographs from Afghanistan and Iraq of detainee abuse sought by the ACLU.

President Obama said on Wednesday that he is seeking to block the release of photographs that depict American military personnel abusing captives in Iraq and Afghanistan, worrying that the images could “further inflame anti-American opinion.”

As he left the White House to fly to Arizona for an evening commencement address, Mr. Obama briefly explained his abrupt reversal on releasing the photographs. He said the pictures, which he has reviewed, “are not particularly sensational, but the conduct did not conform with the Army manual.”

He did not take questions from reporters, but said disclosing the photos would have “a chilling effect” on future attempts to investigate detainee abuse.

The president’s decision marks a sharp reversal from a decision made last month by the Pentagon, which agreed in a case with the American Civil Liberties Union to release photographs showing incidents at Abu Ghraib and a half-dozen other prisons. At the time, the president signed off on the decision, saying he agreed with releasing the photos.

Robert Gibbs, the White House press secretary, said that the president met last week “with his legal team and told them that he did not feel comfortable with the release of the D.O.D. photos because he believes their release would endanger our troops.”

This may be the most Bushian thing Obama has done, not necessarily because of the action, but because of the rationale. First off, the idea that the release of the photos would endanger the troops looks over the fact that the troops are in danger RIGHT NOW because of their placement in harm's way in two unnecessary and failed wars. We've heard all this happy talk about the war in Iraq, yet one set of photos would spark a revolution? I think it betrays a naivete about what the Iraqis already know about detainee abuse. After all, they have, um, access to those who were abused, namely their relatives.

Second, Obama said that the release would have a "chilling effect" on other attempts to investigate abuse. How? If anyone stopped taking photos because of their release, that would have already happened after the release of the pictures in Abu Ghraib. Look, the Defense Department wants everything they do to remain secret. But this is a democracy, and I dare say that the American taxpayer has paid for those photos. We deserve an accounting. And if Obama thinks that denying the EVENTUAL release (he'll lose this in court) will somehow mute the calls for an independent investigation over torture, clearly the opposite will happen.

I hope the stars are out of everyone's eyes with respect to Obama now. And this reversal is sadly not isolated, particularly on national security and civil liberties issues. They want to revive the discredited military commissions process, and sidestep a criminal justice system that has worked for 225 years in favor of what amounts to a kangaroo court. They threatened Britain to keep quiet over evidence showing the torture of Binyam Mohamed, or else they would cut off cooperation with the British government on terror operations and intelligence. They have continued the practice of declaring the state secrets privilege to shut down judicial review of past actions of the executive branch. On these issues, Obama has offered no change whatsoever, but an allegiance to very right-wing ideas about security and privacy and civil liberties. It's shameful.

Spanish Court Opens Torture Inquiry Against Gonzales, Addington, Yoo, Others

Just off the press from the New York Times:

A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of American prisoners at Guantanamo Bay, Cuba, an official close to the case said.

The case was sent to the prosecutor’s office for review by Baltasar Garzon, the crusading investigative judge who indicted the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and could lead to arrest warrants.

I would call this a big deal. As the report notes, Garzon indicted Augusto Pinochet, which led to his arrest and extradition. This would not immediately lead to arrest and trial, but it would certainly confine the six officials to the United States and increase the pressure for stateside investigations. Spanish courts have "universal jurisdiction" over human rights abuses, under a 1985 law, particularly if they can be linked to Spain.

In the case against the former Bush administration officials, last week Judge Garzon linked it to an earlier case in which he indicted five former Guantánamo Bay prisoners who were citizens or residents of Spain. The Spanish Supreme Court had overturned a conviction of one of them, saying that Guantánamo was “a legal limbo” and no evidence obtained under torture could be valid in any of the country’s courts.

The complaint was filed by a Spanish human rights group, the Association for the Dignity of Prisoners, to the National Court, which assigned the case to Judge Garzon. After the complaint is reviewed by the prosecutor, a criminal investigation would be likely to begin, the official said. If the case proceeds, arrest warrants could still be months away.
The 98-page complaint, a copy of which was obtained by The New York Times, was prepared by Spanish lawyers who have also relied on legal experts in the United States and Europe. It bases its case on the 1984 Convention Against Torture, which is binding on 145 countries including the United States.

The six officials in the inquiry are:

• former Attorney General Alberto Gonzales
• John Yoo, the Justice Department attorney who authored the infamous "torture memo"
• Jay Bybee, Yoo's superior at the Office of Legal Counsel, also involved in the creation of torture memos
• David Addington, Dick Cheney's chief of staff and legal adviser
• Douglas Feith, the former undersecretary of defense for policy
• William Haynes, the legal counsel at the DoD

The amount of material connecting these six to the creation, authorization and direction of state-sanctioned illegal torture, based on perverse and discredited reasoning, is voluminous, and given the record of Garzón, I would imagine this will lead to arrest warrants.

This story shows once again the growing global unease with the implicit policy of the United States to conveniently forget the torture and other abuses of the Bush regime. In England, police are investigating whether British intelligence officers knew about and prolonged the torture of Binyam Mohamed, the recently released Guantanamo detainee. As Glenn Greenwald notes, other countries have not abandoned their commitment to the rule of law.

As The Guardian reported, the British Government was, in essence, forced into the criminal investigation once government lawyers "referred evidence of possible criminal conduct by MI5 officers to home secretary Jacqui Smith, and she passed it on to the attorney general." In a country that lives under what is called the "rule of law," credible evidence of serious criminality makes such an investigation, as The Guardian put it, "inevitable." British Prime Minister Gordon Brown has clearly tried desperately to avoid any such investigation, yet as The Washington Post reported this morning, even he was forced to say in response: "I have always made clear that when serious allegations are made they have got to be investigated."

Wouldn't it be nice if our government leaders could make a similar, extremely uncontroversial statement -- credible allegations of lawbreaking by our highest political leaders must be investigated and, if warranted, prosecuted? In a country with a minimally healthy political culture, that ought to be about as uncontroversial as it gets. Instead, what we have are political leaders and media stars virtually across the board spouting lawless Orwellian phrases about being "more interested in looking forward than in looking backwards" and not wanting to "criminalize public service." These apologist manuevers continue despite the fact that, as even conservative Washington Post columnist Anne Applebaum recently acknowledged in light of newly disclosed detailed ICRC Reports, "that crimes were committed is no longer in doubt."

The end of the NY Times article shows why the US can hardly claim that Spain is acting irresponsibly beyond its own borders and violating the soveriegnty of other nations, because in one recent case we did almost exactly the same thing:

The United States for the first time this year used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami court sentenced Charles Taylor, the former Liberian leader, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.

Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”

So do I.

Binyam Back In England, Our Shame Remains

Binyam Mohamed is back in Britain today, the first Guantanamo detainee to be freed during the Obama Administration, and I'm guessing that release didn't include a gag order.

"It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways -- all orchestrated by the United States government," Binyam Mohamed 30, said in the statement released by his attorneys at a London news conference [...]

In accounts provided by his attorneys, Mohamed said that U.S. officials flew him to Morocco and that he was tortured there for 18 months. He said he was beaten and had his penis cut with a razor. He said he was then transferred to a CIA-run site in Afghanistan and was beaten there regularly before being transferred to Guantanamo in September 2004.

"The very worst moment came when I realized in Morocco that the people who were torturing me were receiving questions and materials from British intelligence," he said. "I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers."

Mohamed apologized for not appearing in person at the news conference, saying that for the moment he was "neither physically nor mentally capable of facing the media."

He said he wanted to speak out on behalf of the 241 Muslim prisoners he said were still being held at Guantanamo and the "thousands of other prisoners held by the U.S. elsewhere around the world, with no charges and without access to their families."

"While I want to recover, and put it all as far in my past as I can, I also know I have an obligation to the people who still remain in those torture chambers," he said. "My own despair was greatest when I thought that everyone had abandoned me. I have a duty to make sure that nobody else is forgotten."

He added, "I am not asking for vengeance; only that the truth should be made known, so that nobody in the future should have to endure what I have endured."

Indeed, it appears there is credible evidence that Binyam Mohamed has been tortured within the past several weeks, based on recent medical examinations. And yet the United States Pentagon released their own report saying that Guantanamo met with all legal obligations under the Geneva conventions, and most news organizations just uncritically ran with that. It's the ultimate in self-exoneration - the Pentagon, which committed the atrocities, says there are no atrocities being committed. Done!

These allegations that Binyam Mohamed was brutalized at Guantanamo in the last several weeks -- while the Obama DOD was "concluding" that conditions there comported with the Geneva Conventions -- are coming from highly credible sources. The Obama administration has the obligation to make available an official in a position of real authority to speak on the record and attempt to reconcile these seemingly irreconcilable stories. The pledge to end the brutality and secrecy of the Bush detention regime was one of the centerpieces of Obama's campaign. One would think, on their own, they'd be eager to address these allegations in a forthright and candid way.

Meanwhile we're still getting these reports of ex-Gitmo detainees returning to the battlefield. Rajiv Chandrasekaran, who is an excellent reporter, does frame this in terms of the prison camp detention turning a low-level Taliban fighter into a hardened killer. But context is important. The right is having a screaming fit, making it sound like terrorists are going to be released into the bedrooms of children, and stories like this, despite their logic, are not helpful (by the way, it was BUSH who released this individual, and Bush whose concentration camp at Guantanamo led this individual back into indiscriminate radicalism). Moreover, the White House is doing themselves no favors by evading responsibility for what may be an extension of Bush-era crimes at Guantanamo, either at home or around the world.

Binyam Mohammed Going Home

This is the least we can do.

A former British resident held at Guantanamo Bay, Cuba, will be flown home early next week, marking the first transfer of a Guantanamo detainee by the Obama administration, according to a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.

The British government had pressed the new administration to make the case of Binyam Mohammed a priority. The release of the Ethiopian native could come as early as Monday, the day Attorney General Eric H. Holder Jr. is scheduled to visit the military facility with top Justice Department officials who are leading a review of the cases of the approximately 245 detainees held there [...]

Mohammed was recently visited by British officials, including a police physician who persuaded him to end a hunger strike. Officials in Britain have said Mohammed faces no charges there and will be released upon his return.

The question is whether there will be a gag order on Mohammed, like David Hicks, or whether he will be allowed to tell his story in his own words, the way Mohamed Barag Fashmilah did to devastating effect in the Huffington Post yesterday. Either way, Bashmilah and Mohammed are symbols of the same disease - a failure to account for the past and unburden the sins of the Bush era.

My physical symptoms are made worse by the anxiety caused by never knowing where I was held, and not having any form of acknowledgment that I was disappeared and tortured by the U.S. government.

I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims. Today, a group of concerned Americans called on President Obama to take the first steps to do just that, by demanding that he establish an independent commission of inquiry into the treatment of detainees in the "War on Terror."

President Obama himself recently said that "democracy requires accountability and accountability requires transparency." If he establishes this commission, it would break the silence about what has happened and signal a real commitment not only to changing the practices of the past but also to ensuring that they do not happen again. Both the American public and the victims of these past policies need to understand what the CIA did in the name of U.S. national security. We need to find out where we were all held and who is still missing. And we need justice for the crimes that were committed in violation of our most basic human rights -- rights the United States has always claimed to uphold and defend. President Obama's recent order to the CIA to shut down its secret prisons was a significant step in the right direction, but it did not resolve the unfinished business of establishing accountability and restoring transparency.

The American public deserves to know what was done to people like me -- and I deserve to know why I lost nineteen months of my life -- all in the name of protecting their security. It gives me faith to see that Americans are standing up for my rights and calling for the truth to be exposed. It is my hope that the President will not only establish this commission, but that he will also direct the relevant authorities to investigate and prosecute those who broke American laws in ordering the torture and disappearance of people like me. Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.

Absolutely. At the very, very least, we need Patrick Leahy's Truth Commission so we can discover the truth and build reforms. However, the Church Commission didn't work to stop a rogue President from attacking the rule of law again. So we need to have real accountability in the form of prosecutions, not clown shows where the likes of Alberto Gonzales "cooperate" the way he cooperated with the Senate Judiciary Committee as Attorney General ("I don't recall, I don't recall.") If the monsters aren't shown the consequences of their wrongs, they will return to do more damage.

...the flip side of the Mohammed release is the terrible case of the Uighurs, who have done nothing wrong but who are not able to get released. An appeals court blocked their transfer to the United States this week.

Binyam Mohammed and The Need For Justice

Glenn Greenwald has the sordid details of the Binyan Mohammed case, which are causing a stir in Britain and around the world but barely a ripple here. Here's his ultimate summary:

So, to recap: first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world. Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him. Then, once he was broken beyond the point of return, we shipped him off to Guantanamo.

After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:

"For several centuries the common law has excluded evidence obtained by cruel, inhuman or degrading treatment; it cannot be used to secure a conviction."

We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them. And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.

One thing that's missing, notable if only for its unbelievable nature, is that Mohammed was imprisoned as a terrorist after confessing to reading a satirical article in a magazine, written by noted terrorist Barbara Ehrenreich, about how to make an H-bomb. Really.

There was a wild claim a week or so ago that the CIA was holding the torture information from President Obama, which is absurd considering that he has unilateral ability to classify and declassify documents (unless they're protecting him from criminal liability). While some US lawmakers are demanding that the evidence be shown, and others are trying to get the State Secrets Protection Act revived so that the Administration cannot hide behind national security any longer, ultimately we're still stuck with a group of government officials putting self-interest above the rule of law:

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

(As Hilzoy makes reference to, is does look like Mohammed may actually be released shortly.)

Ultimately, this is what the Administration is throwing away by blocking accountability, while parroting the talk of how we value the law in America and we hold no man above it. An international group of judges have made their pronouncement on what this evasion of responsibility does to our moral standing and values, and it's a powerful statement:

"We have been shocked by the damage done over the past seven years by excessive or abusive counterterrorism measures in a wide range of countries around the world," said Arthur Chaskalson, a member of the International Commission of Jurists, in a statement announcing results of a three-year study of counterterrorism measures since the Sept. 11, 2001, attacks.

"Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights,'' said Chaskalson, a former chief justice of South Africa.

"It would be better that the government recognized that there are risks -- rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism -- that we live in fear and under a police state," said Stella Rimington, former head of MI5, the domestic intelligence-gathering agency.

None of this changes unless we recognize that crimes were committed and that they must be adjudicated, with those held responsible brought to account. Otherwise, the cancer will metastasize with another President in another era and it will come back worse than before. In addition, continuing to ignore treaty obligations and flout international law while demanding that other nations be held to that same standard is crippling for American legitimacy. Indeed, some in the Administration claim to know that there are some terrorist suspects who we simply cannot prosecute and must hold indefinitely, while simultaneously knowing that there are individuals inside the previous government who committed and authorized direct crimes but cannot be held responsible. The double standard is staggering.

Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantánamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyal’s new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Amazing. We have powerful individuals in the Obama Administration arguing for a parallel justice system in the United States. No wonder Charlie Savage calls this a return to Bush-era national security policies. Perhaps the most disgusting thing Savage digs up is this quote from Greg Craig, the White House counsel:

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

"The institution of the Presidency" is seen as more important than the laws the President swears to uphold and execute. And thus an empire crumbles.

While I agree with Glenn Greenwald that there is a distinction between what Obama Administration officials say and what the President will actually do, and that Obama has the opportunity to make a better outcome here (especially if pressured by a newly emboldened Congress), the essential truth cannot be questioned:

Nonetheless, there is no question that Obama has already taken some truly alarming steps, including -- in addition to those listed above -- invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I've become convinced -- for reasons Darren Hutchinson has argued and Savage today pointed out -- that there's more potential mischief in that policy than I immediately recognized.

There's just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions -- he just needs more time; it's only been three weeks -- is a complete straw man.

The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.

And we must wage them. We must fight for accountability and justice, starting with a full investigation into Bush-era crimes and a full release of those reports already completed. The American people deserve the truth. Furthermore, we must ensure that the changes in policy resulting from the new Administration on these issues are real changes and not the same policies with a friendlier face.

No Excuse For This

There is no excuse for the Obama Justice Department invoking the state secrets privilege to get a court case on extraordinary rendition thrown out. Men who were illegally kidnapped, flown to Guantanamo and tortured sued the government and the owner of the aircraft used in the rendition, and Obama's officials basically said that the whole matter was a secret and cannot be adjudicated. Here's Ben Wizner of the ACLU, who was one of the lawyers on the case:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.

Greenwald:

What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act, and it's hard to disagree with what ACLU Executive Director Anthony Romero said today:

"Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

As Greenwald goes on to note, Obama has claimed to end this practice of rendition, and yet is invoking the state secrets privilege because revealing the scope of the program would degrade CIA operations - operations that he has said no longer exist. Those statements aren't compatible, and one can only conclude that rendition is continuing, perhaps in a kinder and gentler way. Or more to the point, the Administration doesn't want any consequences for the crimes of the past, reserving the right for future Presidents to absolve them of crimes in the future.

Now, it could be - probably not, but could be - that as Attorney General Holder is reviewing all state secrets claims, the Justice Department wanted to maintain consistency until a decision was made at the top. However, that doesn't square with the actual conversation in the courtroom:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more. The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Just to bring in some perspective, let's add to this what has been alleged to have happened to one of the five Brits suing the government in this case, Binyam Mohamed. The Telegraph UK reported over the weekend:

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain.

Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was picked up in Pakistan in 2002 on suspicion of involvement in terrorism, rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in 2004. All terror charges against him were dropped last year.

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

Another source familiar with the case said: "British intelligence officers knew about the torture and didn't do anything about it. They supplied information to the Americans and the Moroccans. They supplied questions, they supplied photographs. There is evidence of all of that."

It was done in our name, using our tax dollars, and now this new Administration, which has spoken very specifically and on the record about the pernicious nature of the state secrets privilege, is now invoking it the same way George Bush had, to avoid accountability. Applying state secrets to get entire court cases thrown out is just the most extreme version of this. Russ Feingold has said:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

Leon Panetta is on the record saying there will be no prosecutions for CIA officers who implemented the crimes of the Bush era. Last night, Obama responded to a question by the Huffington Post's Sam Stein about the need for a truth and reconciliation commission, just so that we would know the extent of the lawbreaking of the past eight years, by dodging the question, saying that if there were "clear instances of wrongdoing" prosecutions should occur, he would be more inclined to look forward and not backward. And we even have evidence that Obama is backsliding on the closure of Guantanamo:

President Obama assured relatives and victims of the Sept. 11, 2001, attacks and the bombing of the USS Cole that he is keeping an open mind about how to handle the approximately 245 detainees held at the U.S. military prison at Guantanamo Bay, according to participants in an hour-long meeting yesterday at the White House.

The president met with about 40 family members and victims, who hold different views on his decision to close the prison in Cuba within a year. The exchange, which was sometimes passionate but never acrimonious, left some who were deeply skeptical of the administration's decision to suspend military commissions at Guantanamo Bay satisfied that the president has not yet decided to abolish the current system of prosecuting suspected terrorists.

Obama told the group that he was only hitting the "pause button" when he sought the suspension of proceedings against 21 detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. And he assured the group that he wants the swift prosecution of those responsible for the terrorist attacks and their facilitators.

This is the rot that comes from a lack of accountability. In covering up someone else's crimes, you inevitably use their methods, which are crimes themselves. They maintain an architecture which can easily be pulled out to cover up your OWN crimes. And it violently damages the rule of law and the ability for Americans to believe in their government.

I'm sick about this.