A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees. (H/T SCOTUSBlog)
The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured. The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.
This presents a split in federal circuit rulings on the State Secrets Privilege. The Fourth Circuit held that the Privilege could bar a civil suit entirely. This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds. "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers."
As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability. All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.
Cato foreign policy experts weigh in on President Obama's record in his first 100 days:
Christopher Preble, Director Foreign Policy Studies:
President Obama deserves credit for making a few modest changes in U.S. foreign and defense policy, and he has signaled a desire to make more fundamental shifts in the future. Some of these may prove helpful, while others are likely to encounter problems. In the end, however, so long as the president is unwilling to revisit some of the core assumptions that have guided U.S grand strategy for nearly two decades -- chief among these the conceit that the United States is the world's indispensable nation, and that we must take the lead in resolving all the world's problems -- then he will be unable to effect the broad changes that are truly needed.
Ted Galen Carpenter, Vice President Defense & Foreign Policy Studies; Christopher Preble:
On the plus side, Obama moved quickly to fulfill his most important foreign policy promise: ending the war in Iraq. That said, the policy that his administration will implement is consistent with the agreement that the outgoing Bush administration negotiated with the Iraqis. Given that the war has undermined U.S. security interests, and our continuing presence there is costly and counterproductive, Obama should have proposed to remove U.S. troops on a faster timetable.
Malou Innocent, Foreign Policy Analyst:
The jury is still out on the other major, ongoing military operation, the war in Afghanistan. That mission is directly related to events in neighboring Pakistan, which is serving -- and has served -- as a safe haven for Taliban supporters for years. President Obama deserves credit for approaching the problem with both countries together, and also in a regional context, which includes Iran, as well as India. Still unknown is the scope and scale of the U.S. commitment. President Obama has approved a nearly 50 percent increase in the number of U.S. military personnel in Afghanistan. Some have suggested that still more troops are needed, and that these additional troop numbers might prevail for 10-15 years. That would be a mistake. The United States should be looking for ways to increase the capacity of both Afghanistan and Pakistan to confront the extremism in their countries, and should not allow either to grow dependent upon U.S. military and financial support.
Christopher Preble and Ted Galen Carpenter:
On Iran, President Obama made the right decision by agreeing to join the P5 + 1 negotiations, but that is only a first step. The two sides are far apart and President Obama has not signaled his intentions if negotiations fail to produce a definitive breakthrough. Sanctions have had a very uneven track record, and are unlikely to succeed in convincing the Iranians to permanently forego uranium enrichment. If the Iranians are intent upon acquiring nuclear weapons, military action would merely delay Iran ’s program, and would serve in the meantime to rally support for an otherwise unpopular clerical regime, and a manifestly incompetent president.
Doug Bandow, Senior Fellow; Christopher Preble:
A related problem is North Korea's ongoing nuclear program, an area where the president and his team seem to be grasping for answers. President Obama was mistaken if he believed that that the UN Security Council would render a meaningful response to Pyongyang's provocative missile launch. It was naive, at best, for him to believe that even a strong rebuke from the UNSC would have altered Kim Jong Il's behavior. The president must directly engage China, the only country with any significant influence over Kim. The North's reckless and unpredictable behavior does not serve Beijing's interests.
Benjamin Friedman, Research Fellow; Christopher Preble:
Obama and Defense Secretary Robert Gates are correct to apply greater scrutiny to bloated Pentagon spending, and to terminating unnecessary weapon systems, but the budget will actually grow slightly, at a time when we should be looking for ways to trim spending. If President Obama decided to avoid Iraq-style occupations, we could cut our ground forces in half. If we stopped planning for near-term war with China or Russia, the Air Force and Navy could be much smaller. Unless we commit to a grand strategy of restraint, and encourage other countries to provide for their own defense, it will be impossible to make the large-scale cuts in military spending that are needed.
Jim Harper, Director of Information Policy Studies; Benjamin Friedman; Christopher Preble:
Two other quick points. President Obama has moved away from some of the overheated rhetoric surrounding counterterrorism and homeland security, including dropping the phrase ‘War on Terror”. This was the right approach. The language surrounding the fight against terrorism is as important -- if not more important -- than the actual fight itself. Equally useful is his pledge to close the detention facility at Guantanamo Bay and his renunciation of the use of torture and other illegal means in the first against al Qaeda. These steps send an important message to audiences outside of the United States who cooperation is essential.
Ian Vasquez, Director, Center for Global Liberty & Prosperity; Juan Carlos Hidalgo, Project Coordinator for Latin America.
President Obama has signaled a slight change on US-Cuba policy by softening some travel and financial restrictions. It is not as far as we would have liked, but it is a step in the right direction -- toward greater engagement, as opposed to more isolation, which was the approach adopted by the Bush administration.
For more research, check out Cato's foreign policy and national security page.
The debate over the Obama administration's release of the torture memos took an important turn during the past week, as reflected in discussions on the Sunday morning shows.
The economy was the lead story on Fox News Sunday, but in the second segment Chris Wallace led his questioning of Senator Kit Bond (R-MO) as follows:
The Pentagon now says that it's going to release hundreds of photos of alleged abuse of detainees by U.S. personnel - this, after, of course, the release of the interrogation memos. Senator Bond, how serious is the threat of a backlash in the Middle East and the recruitment of more terrorists, possibly endangering U.S. soldiers in that part of the world?
Revelation! The idea that abusive practices on the part of the United States would draw people to the side of its enemies.
In the media, most of the debate up to now has centered on the tactical question of whether torture works, and to some degree the moral dimension. (Here's David Rittgers on the former and Chris Preble on the latter.)
There's an ineluctable conclusion from understanding that torture drives recruitment which endangers our soldiers: It is strategic error to engage in abusive practices. Abuse on the part of the United States adds heads to the hydra.
But wait. Wallace's question may imply that it is release of the photos - not commission of the underlying offenses - that risks causing a backlash. This cannot be.
Given the governments they've long experienced, people in the Muslim and Arab worlds will generally assume the worst from what they know - and assume that even more than what they know is being hidden. Transparency about U.S. abuses cuts against that narrative and confuses the story that the United States is an abuser akin to the governments Arabs and Muslims have known.
Abusive practices create backlash against the United States. Transparency about abuses after the fact will dispel backlash and muddy the terrorist narrative about the United States and its role in the Middle East.
As the question turns to prosecution of wrongdoing by U.S. officials, such as lawyers who warped the law beyond recognition to justify torture, transparent application of the rule of law in this area would further disrupt a terrorist narrative about the United States.
Chris Preble has nicely detailed the reasons we should not torture. The practice offers no guarantee of good information, harms America's international reputation, and sacrifices the values that set this nation apart.
Now comes a report that Judge Jay S. Bybee, the head of the Bush adminsitration Office of Legal Counsel who signed off on the infamous torture memos, regrets his role in the matter. According to the Washington Post:
"I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety."
That notoriety worsened this week as the documents — detailing the acceptable application of waterboarding, "walling," sleep deprivation and other procedures the Bush administration called "enhanced interrogation methods" — prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.
This regret could reflect convenient timing — after all, the torture stories have not exactly enhanced Bybee's reputation. But it might also demonstrate a sobering realization as to how his opinions were used or misused. As a believer in human redemption, I'm going to play the optimist and go with the latter for now.
My colleague Chris Preble sketches out some of the moral pitfalls that come with authorizing torture in his post. Beyond that, history shows that utilitarian claims that torture has enhanced our safety are also mistaken.
While torture can in some instances provide valid intelligence, it can also produce false information motivated only by a desire to end suffering. Successful interrogators from World War II to the modern day have used rapport and psychology, not brutality, to get inside the heads of their enemies.
The Air Force interrogator who helped bag Abu Musab al Zarqawi, writing under the pseudonym Matthew Alexander, says that the difference between an interrogator and a used car salesman is that the interrogator has to abide by the Geneva Conventions. No torture there, and a good read to boot.
This theme is echoed in Kyndra Rotunda's book Honor Bound:
I knew one CITF agent and one FBI agent who were Muslims, and both knew how to coax the truth from detainees' lips. One word captures their effective, secret ingredient to successful interrogations - patience. They each spent hours visiting with the detainee, sharing tea, bringing gifts of dried fruits, and talking endlessly about family, Allah, and the Quran.
This should come as no surprise, since it is a repackaging of the techniques of World War II interrogator Hanns Scharff, "Master Interrogator of the Luftwaffe." Scharff treated downed Allied pilots humanely, gaining their trust and sympathy while gleaning significant information about Allied air power and advance warning of the D-Day landing. The Allies wanted to prosecute him after the war for interrogating their pilots so effectively, but dropped the charges when they couldn't substantiate him so much as raising his voice. He came to the United States after the war and did mosaic art work at Walt Disney World.
So color me unsurprised when a former FBI supervisory agent says that we gained actionable intelligence by traditional interrogation techniques, and that torture backfired on us.
The release of memoranda authorizing torture will help prevent the U.S. from ever traveling this dark path again. The U.S. has consistently taken the moral high ground in armed conflicts, contrasting our behavior with the savagery our enemies engaged in for decades. The historical record shows that mercy, not might, is the key to successful interrogation.
Over at The Wall Street Journal, Cong. Peter Hoekstra calls for an investigation into "what the Obama administration may be doing to endanger the security our nation has enjoyed because of interrogations and other antiterrorism measures implemented since Sept. 12, 2001." Hoekstra implies, or at least clearly believes, that Obama's renunciation of torture has made the country less safe. Rest assured, when the next attack occurs (and there will be another attack), Hoekstra and other supporters of torture will claim vindication, even though they won't be able to point to direct evidence that torture would have averted the attack. It is equally impossible to prove a negative -- why something does not occur -- as it is to prove that an action not taken in the past would have prevented something in the present.
Similarly, former Vice President Cheney claims that the use of techniques such as waterboarding, sleep deprivation, stress positions, and cramped confinement enabled the U.S. government to stop future terrorist attacks, and he has asked the Obama administration to declassify the documents that supposedly prove it. Cheney has previously said that President Obama’s renunciation of torture increases the likelihood that future attacks will be successful.
Of course, Cheney has not asked for the declassification of all information obtained by torture. He presumably doesn’t want the American people to know the countless false positives, the fake leads, the purely bogus information offered up by those being tortured in a vain attempt to halt -- or merely postpone -- their severe discomfort. (Gene Healy documents a few of these in his recent column.)
Nor can Cheney or Hoekstra prove that the few kernels of useful information obtained under torture could only have been acquired under torture, and not by other techniques, techniques that were consistent with our laws, and that we employed in past conflicts. They can't prove such claims, because they aren't true.
- David Rittgers speaks out on the O'Reilly Factor about the government's policy on torture.
- At National Review online, Patrick Michaels weighs in on Earth Day.
- Will Wilkinson warns of problems with Obama's budget on Marketplace.
- Richard Rahn explains why the current tax system needs to be overhauled and replaced in The Washington Times.
- In Wednesday's Cato Daily Podcast, Swaminathan Aiyar discusses the future of the dollar.