Obama Backtracks on State Secrets; Does the Right Thing After All
If you’ve been following Glenn Greenwald lately, today was one of the first real litmus tests that the Obama administration has faced on civil liberties, specifically in relation to torture, accountability, and state secrets. A number of old memos drawn up by the Bush administration and used as the architecture that led to the United States committing war crimes have been classified. The ACLU sued under the Freedom of Information Act, and eventually it landed on this president’s desk with a simple decision: impede the disclosure of these memos on the grounds of national security or state secrets, or step aside and let transparency happen.
The picture that had been shaping up was that the internal forces in the CIA were lobbying the administration hard to keep the memos classified (led, incidentally, by John Brennan, originally slated to be the Director of the CIA but whose nomination was torpedoed by outcry, on exactly this issue, by civil libertarians, led by Greenwald), while Eric Holder and most of the justice department wanted to see them released. Obama has, after a promising start on the issue with his first executive orders, seemed to be retreating to a Bushian state secret line. As Greenwald put it this morning:
Today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law. After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU’s FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes. Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them — either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them.
It is genuinely unclear what the Obama administration will do today.
Today, however, Obama decided to not stand in the way of transparency. He has ordered all the memos released, and has decided against redacting any part of them but the names of CIA agents (the “compromise” or middle road action here would have been to release them, but heavily redact them).
What will follow at sites like the Daily Dish, Volkh Conspriacy, and Greenwald’s, is going to be a detailed discussion of those memos and what they contain, and at first blush they’re horrifying. But before we get into that, let’s take a moment to note two things:
1. When it became do-or-die, time to put action to rhetoric, Obama did the right thing on civil liberties. I had become genuinely unsure of not just how friendly to civil liberties Obama might to out to be, but also how hostile. But, when it mattered, he did indeed come through. There is still reason to be only cautiously optimistic. Obama released a lengthy statement (read it in full here which is at once thoughtful but at another level giving way way too much credence to the state secrets regime, and sounds to my ears more than a little Clintonesque in trying to bend over backwards to not be seen as “weak”. It sounds to me like he was uncomfortable releasing the memos, but ultimately more uncomfortable not doing so. That he was uncomfortable about this at all isn’t thrilling; that he nevertheless knew what the right thing was and did it is enormously so. And the actions speak louder than words. He had three options: take the Bush line, take a squirrely middle-road line, or take a civil libertarian line. He chose the latter. Good for him.
2. However, beyond Obama himself, what is striking to me is, in a broader context, I do believe that Obama was influenced here, as he was in the Brennan matter, by a civil libertarian outcry. If nobody cared, I’m not sure he would have done anything, but this was important enough to enough important (or at least well read) people that a cost was attached to doing nothing. That’s something to be extremely optimistic about. And that Brennan and the CIA lost this fight, and that key administration officials and the justice department threw their weight into this fight on the side of disclosure, is enormously, enormously relieving.
Well done Greenwald.
Well done Obama, though it was your damn job to do this in the first place, but since political figures doing right isn’t as common as it should be, you get a pat on the back.
Poorly done Bush, CIA, Congress, the press and all of us in general for the fact that I get to read in clear terms that my country lost it’s collective head and behaved like barbarians.
Comment by Mortexai — 4/16/2009 @ 6:20 pm
Comment by Brad — 4/16/2009 @ 8:20 pm
I really think the only way to redeem this is through the courts. Anything less really betrays how unserious America is about holding everyone accountable to the law. If we can impeach a President because he lies about getting his dick sucked then I think we can justify putting Bush and his cronies in a court room to explain himself.
Comment by tessellated — 4/16/2009 @ 8:21 pm
Comment by Brad — 4/16/2009 @ 8:22 pm
I’ve already signed myself on to that petition.
Comment by tessellated — 4/16/2009 @ 8:31 pm
Big ups on the decision itself.
Thumbs down on accompanying it with a statement that nobody involved ought to be prosecuted.
A net win for the President.
Comment by Rojas — 4/16/2009 @ 9:00 pm
One more thumb up: Eric Holder. By all accounts, he’s been lobbying the President hard on this matter, and also by all accounts, he (and Obama) believe strongly that the AG is the “people’s lawyers”, not Obamas.
On the “nobody involved ought to be prosecuted” bit:
Marc Ambinder has been parsing through it a lot today. Read in order (he starts laying out his assumptions, then after they get posted he has anonymous White House sources (and he has pretty good sources) telling him his assumptions are correct):
1
2
3.
Worth reading. The current best guess is that Obama is personally opposed to prosecutions, but he may broadly defer to Holder (who is not so opposed). The loophole here is “followed” and “good faith”. As in, they aren’t interested in the people who “followed” the policy (presuming they did follow the policy, and many went beyond it, i.e. would be prosecutable even with the most stringent reading), but they might be in those who created it. And they aren’t interested in people who honestly thought what they were doing was legal. But they might be for those “bad faith” folks whose interpretations of law were negligent or outside the bounds of reasonable, or the people that guessed they were full of shit but went ahead anyway.
Point being, thumbs down indeed for the signaling, and I still don’t get what Obama thinks is the angle here. However, there’s nothing in there that precludes prosecution for the people who need to be prosecuted.
My own guess is that the Obama folks will get out of the way of any Truth Commission efforts, and that Holder might indeed appoint a special prosecutor if lobbied. Whether Obama himself does anything more than “express reservations” depends entirely, I think, on pressure—whether he feels “limited capital” type political pressure to try to divert Justice from this issue, or whether he feels public pressure to stay out of the way and let the wheels of justice turn as they will. Greenwald makes a good point on that: ultimately, it’s up to us.
Comment by Brad — 4/16/2009 @ 9:23 pm
More feet-to-the-fire, then.
Whatever else may unfold, though, one can’t reasonably argue that Obama is to the right of Bush on civil liberties. That’s faint praise, I suppose, but it’s better than I’d expected a week ago.
Comment by Rojas — 4/17/2009 @ 9:32 am
My two hyperlinked blockquotes above (comment 2 and 4) give two immediate “feet to the fire” actions any of you can take.
Comment by Brad — 4/17/2009 @ 12:20 pm