Saturday, September 25, 2010
Obama government retreats to Bush-era state secrets dishonesty
Just how important is it that the United States, with the world's most powerful military and the world's most enduring democracy, engage in conduct overseas that would be patently illegal within its own borders? That question arose again yesterday, as it has repeatedly in the rather disturbingly slow dismantling of widely discredited George W. Bush-era policies, when the Obama administration invoked the state secrets doctrine in an effort to convince a federal judge in Washington to dismiss a lawsuit accusing the military of trying to kill a U.S. citizen in Yemen. According to the New York Times, the New Mexico-born citizen, Anwar Al-Awlaki, is living in Yemen and is associated with al-Qaida, the radical Islamic terrorist group blamed for the Sept. 11, 2001, terrorist attacks on New York and Washington, D.C. that killed thousands. His father, Nasser al-Awlaki, filed the lawsuit seeking an injunction to block the U.S. government from killing the son, the Times said. U.S. government lawyers completed a legal brief Friday contending the lawsuit should be dismissed because litigating the could result in the disclosure of confidential information -- the so-called state secrets -- and other grounds. The doctrine was invoked successfully numerous times during the last administration to short-circuit claims against the government for allegedly illegal activities in the war on terror. No one seriously questions whether the government has the right to keep secrets when disclosures would put innocent lives at risk. But that does not give the government the right to maintain secrecy when it wants merely to escape consequences for illegal activity. What we saw during the last administration, when the federal government eviscerated long-established constitutional principles to advance a dubious political agenda, should give everyone pause. There has to be a serious accounting. The Obama administration's most serious mistake so far was its refusal to review the previous government and to bring alleged lawbreakers to trial. Everything that happens now, including the Al-Awlaki case, is built upon that miscalculation. This time, the Times said, Obama-appointed Attorney General Eric Holder personally approved invoking the state-secrets defense. “It strains credulity to argue that our laws require the government to disclose to an active, operational terrorist any information about how, when and where we fight terrorism,” said Matthew Miller, a Justice Department spokesman. That's logical, but only in the abstract, and it's a bad mistake to invoke it merely to justify other bad mistakes. If this is going to continue to be a government of laws, those laws are going to have to be enforced -- even if it means some well-known government officials will have to stand trial.