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Obama's Torture Test

By Sam Singer

If you find pleasure in watching politicians thrash about in a tangle of their own policy positions, you likely enjoyed the White House's programming this April. Between the president and his attorney general, the Obama Administration seemed to have a new position every week of the month on prosecuting senior Bush Administration officials who authorized torture, each carefully calibrated to address the political failings of the last.

May promises to bring more backpedaling from the president. Despite earlier efforts, Obama can't seem to put enough distance between his Justice Department and some of the more contentious wartime positions of its predecessor. What many thought would be a crisp and clean break from the Bush Administration has proved a slow, if tentative, unwinding.

In February, the Justice Department disappointed civil rights groups when it picked up where the Bush Administration left off in a high-profile suit against Jeppesen Dataplan, Inc., a Boeing subsidiary, for helping the CIA service its extraordinary rendition program. The five plaintiffs claim they were unlawfully detained and tortured under the CIA program, and that Jeppesen's logistical support was critical for the agency in conducting the renditions.

The Bush Justice Department promptly moved to dismiss the case. In support of the motion, Bush lawyers advanced a bold interpretation of the state secrets doctrine that would require a court to dismiss a rendition case where the claim is bound up with "the very subject matter" of a secret. Notwithstanding campaign promises to the contrary, the Obama Justice Department endorsed this expansive interpretation in its first court filings in February.

In a highly anticipated ruling, the Ninth Circuit disagreed, opting for a more limited, item-by-item interpretation of the state secrets doctrine. As the Court described it, although the government may use the state secrets doctrine to challenge the admissibility of certain items of evidence, it may not invoke the doctrine as a wholesale rule of immunity. To further complicate matters, President Obama has performed a second about face: When asked about the Ninth Circuit's holding, the President told the White House press corps he disagreed with the Bush Administration's take on the state secrets doctrine, apparently unconcerned that his lawyers had spent the last few months selling it to a panel of federal judges.

In light of his remarks, it is anybody's guess whether President Obama will seek Supreme Court review. The national interests at stake and the resolve with which the Justice Department pressed the case in the Ninth Circuit both point toward an appeal. So too with an earlier ruling by the Fourth Circuit that conflicts with the Ninth Circuit's holding on the proper scope of the state secrets doctrine. Circuit splits tend to capture the attention of the justices on the Supreme Court, who make use of the occasions to clarify important matters of federal law.

But would President Obama really instruct the Justice Department to appeal a matter weeks after he publicly opposed it? To do so would bring this administration's back-and-forth on the issue to a point of absurdity. It would also open another round of shelling from the media about the President's policy fluctuations and lack of follow-through. More importantly, by seeking Supreme Court review, the President would fundamentally change the nature of his relationship with the case. To appeal now is to effectively take ownership of the matter - Obama can no longer paint himself as the hapless custodian. More immediately, Obama risks further alienating opponents of the CIA program, a handful of whom sit on the respective judiciary committees charged with approving Obama's court nominations.

A decision to forego an appeal seems equally uninviting. Inside Justice, they'll accuse Obama of sending government lawyers to the Ninth Circuit on a fool's errand - to spend months litigating a case the president never had any intention of seeing through. Elsewhere in Washington, they'll accuse the President of jeopardizing national security through the exposure of state secrets. To be fair, the latter charge deserves a dose of perspective. If President Obama leaves the case on its current trajectory, it will go back to the district court, where it likely will die of natural causes. For the same reason the five foreign nationals can't sue the CIA directly - namely, the principle of sovereign immunity - the five men likely will be precluded from suing a government contractor, provided it was acting pursuant to specific orders from the military.

Alongside everything else, the President must bear in mind the administrative costs of cutting the legs out from under an active case as well as the established principle that new administrations give certain deference to the legal positions of their predecessors. If he abandons the Bush Administration's position, he's reversed course in the eyes of the federal courts. If he reiterates it, he's reversed course in the eyes of the public. It's up to him to decide which fate is worse.


Sam Singer is the Beachwood's legal correspondent. He welcomes your comments.


Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.

* Taking Government Out Of The Marriage Business. Separating church and state.

* Chicago's Disorderly Conduct. Dissent allowed even in Daleyland

* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.

* Is Blago A Flight Risk? We asked; a judge said yes.


Posted on May 6, 2009

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