Commentary

Is President Obama Listening to Dick Cheney?

British legal resident Binyam Mohammed claims to have been severely tortured during a CIA “rendition,” beginning in its secret prison in Afghanistan and then “rendered” by the CIA to Pakistan, Morocco and Guantanamo. Before the British High Court, his English lawyers last year succeeded in having the court include, in a ruling, records of his treatment in U.S. custody. But those seven paragraphs were removed by the judges at the demand of the Foreign Office following a threat from the Bush State Department.

In August, John Bellinger, then chief legal adviser to the State Department, wrote the Foreign Office: “We want to affirm in the clearest terms that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to U.S. national security, and could harm existing intelligence-sharing arrangements between our two governments.”

On Feb. 4 of this year, the British High Court wanted to finally disclose those seven paragraphs summarizing actual U.S. reports on Mohammed’s treatment that had originally been provided to the Foreign Office. The judges expected that “the situation had changed significantly following the election of President Obama, who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment.” (That court is also interested in British involvement with Mohammed’s interrogations.)

But although last year all U.S. charges against Mohammed were dropped, this year the Obama administration continues to demand that those seven paragraphs remain secret, and has thanked the British government “for its continued commitment to protect sensitive national security administration.” (New York Times, Feb. 18).

As Obama’s Attorney General Eric Holder has already shown in another case involving Mohammed before the U.S. 9th Circuit Court, the Bush-Cheney “State Secrets” policy continues to reign in the Obama administration.

Even a letter sent directly to Obama by Mohammed’s British lawyers to look into “the truly medieval ways” in which Mohammed was tortured has not changed the president’s mind. (Jurist Legal News & Research, Web site, Feb. 12).

In the 9th Circuit court papers (“Mohammed v. Jeppesen Dataplan, Inc.”), ACLU lawyers for Mohammed cite his claim that in Morocco, “his clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis.” It is reasonable to believe that the seven paragraphs involuntarily censored by the British High Court would be quite useful to Mohammed’s case in both the British and American courts.

The High Court in England, in angry reaction to the Obama administration’s refusal to annul the Bush threat to impair relations with British intelligence about the release of the seven paragraphs, declared on Feb. 5 its acute disappointment that the United States, “governed by the rule of law,” would continue to censor evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”

Mohammed, who was on a hunger strike (his only form of protest) at Guantanamo Bay, has finally been released and returned home to England where his lawyers continue to press his case concerning his treatment by the CIA. The Obama administration wanted a gag rule imposed on the returned Mohammed, but his lawyers rejected the demand (New York Times, Feb. 24). Before his release, at a press conference (reported by Raymond Bonner of The New York Times, Feb. 12), a member of Mohammed’s legal team, Lt. Col. Yvonne Bradley of the U.S. Air Force, said that the Moroccan torture of him “would make waterboarding seem like child’s play.”

In San Francisco, at the 9th Circuit Court of Appeals, Mohammed is one of five victims of CIA kidnapping who are charging a subsidiary of giant Boeing Aircraft with providing planes and logistics for the harrowing CIA renditions flights. Holder sent Justice Department lawyer Douglas Letter to order the court to dismiss the case without discussing it in court.

Among the startled judges, Mary Schroeder asked: “The change in administration has no bearing?” She was assured that the Obama government’s echo policy on state secrets has been “thoroughly vetted with the new administration.” Another surprised judge, William Canby, puzzled by the invocation of “state secrets,” asked:

“You can say something is secret even when a newspaper reporter has it?” (Many newspaper reporters, including this writer, have written in detail about the CIA’s torture flights, including those of the shackled Mohammed.)

On the same day that the attorney general’s silencer addressed the court, Holder himself announced that the Justice Department will review all the pending cases in which the Bush administration asserted state secrets, to ensure that they are being invoked “only in legally appropriate situations.” I wonder if the attorney general gets extra pay for being the president’s emergency public relations flack while actually commanding that this crucial case be dismissed.

The ACLU’s Ben Wizner, arguing Mohammed’s case at the 9th Circuit, said: “This administration is going to have to face the issue of accountability. (It) cannot pretend the last seven years didn’t happen.”

Want to bet? Obama’s White House counsel Gregory B. Craig told The New York Time’s Charlie Savage (Feb. 18): “We have been some of the most articulate and vociferous critics of the way the Bush administration handled things. There has been a dramatic change of direction.”

I’d sure like to see Binyam Mohammed’s reaction to that talking point from the “transparent” Obama administration.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the libertarian Cato Institute, where he is a senior fellow.