Excerpts from an editorial in The New York Times yesterday:
The Bush administration’s attacks on the rule of law in the name of fighting terrorism have saddled President Obama with some urgent cleanup work. The administration also faces urgent deadlines in court cases where President Bush’s lawyers were trying to expand executive power and impose a blanket of secrecy to avoid having to defend indefensible decisions. The cases give Obama a chance to show how serious he is about repairing Bush’s legacy of harm.
The first test comes on Monday in San Francisco, where three judges of the United States Court of Appeals for the Ninth Circuit are scheduled to hear arguments in a civil case involving kidnapping and torture. The five plaintiffs, victims of Bush’s extraordinary rendition program, were seized and transported to secret American facilities abroad or to countries known for torturing prisoners. There is a growing body of public information about the CIA’s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers. It is also contrary to Obama’s stated views. To put them into action, Holder should immediately ask the court for time to rethink the government’s position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.
Should Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy. That certainly does not fit principles that the new president has so often articulated.
