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Despite Gitmo Closure and Torture Ban, Obama Admin Converges with Several Bush Policies in So-Called “War on Terror”

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After a month in office, the Obama administration has surprised many of its supporters by embracing or appearing receptive to key parts of the Bush administration’s counterterrorism strategy, from indefinite detention, to kidnapping and rendition, to invoking “state secrets” privileges. blogger Glenn Greenwald joins The New Yorker’s Jane Mayer to discuss. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Jane Mayer, we’re also joined by Glenn Greenwald.

After a month in office, the Obama administration has surprised many of its supporters by embracing key parts of the Bush administration’s counterterrorism strategy. Obama’s nominee for Solicitor General, Elena Kagan, has publicly endorsed Bush’s policy of indefinitely detaining suspected al-Qaeda members, regardless of where they’re captured. And CIA Director Leon Panetta has said the CIA might continue its extraordinary rendition program. The Obama administration has used the state secrets doctrine, as you were saying, Jane, to urge a federal judge to toss out a lawsuit by former CIA detainees and to prevent a federal court from reviewing the Bush administration’s warrantless spying program.

To discuss this, we’re joined by Glenn Greenwald, constitutional law attorney and political and legal blogger for, author of three books. His latest, Great American Hypocrites: Toppling the Big Myths of Republican Politics. He’s joining us by video chat from his home in Brazil. We hope the audio is good enough.

Hi, Glenn. I don’t know if you’ve heard Jane Mayer speaking, but talking about the issue of state secrets, can you talk about your concerns?

GLENN GREENWALD: Well, I think that the biggest concern is not so much that the Obama administration thought there might be legitimate secrets to protect in this case, whether it’s specific rendition agreements with Morocco, as Jane alluded to. The problem is that there are two ways to use the state secrets privilege.

One is the traditional way that had been used since before the Bush administration, since 1953, which is to assert, on a document by document basis, that specific pieces of information are too classified and too secret to be allowed to be used in a judicial proceeding, and therefore they ought to be deemed privileged, the way that, say, attorney-client documents are or doctor-patient communications are, very specific and focused assertions of privilege over a specific document. I don’t think anybody — the ACLU or civil libertarians — have a problem with the assertion of privilege when it’s used in that way.

The problem is, is that what the Bush administration did was they converted that state secrets privilege from a document-specific means of excluding pieces of evidence to a shield of immunity to compel courts to dismiss entire lawsuits before there’s any proceedings at all, any effort to find out whether specific documents really are classified, whether there’s a way that will allow the plaintiffs to proceed and have their day in court without using classified information. That’s been the controversy, over the use of the privilege as a shield of immunity to protect the President from judicial accountability.

And if the Obama administration’s embrace of that theory, of that use of the privilege as a weapon that has been so disserving — had they really been concerned about specific agreements with Morocco, they could have simply said, “Well, send the case back to the district court, and with regard to specific documents, we will assert the privilege over them.” That’s not what they did. They embraced what they had long said was the abuse of the privilege when in the hands of the Bush administration.

JUAN GONZALEZ: And in the case of Binyam Mohamed, you’ve written how specifically the Obama administration has even joined in in threatening Britain, in terms of its possible release of information about activities that have occurred in the past. Could you talk about that?

GLENN GREENWALD: Yeah. That might actually be the most disturbing episode yet. I mean, the British government has acknowledged that it has in its possession what it calls exculpatory evidence with regard to Mohamed, namely information that it obtained from the CIA that the confessions, on which the Bush administration previously was relying to prosecute Mohamed in the military commission, was — were concessions that were obtained by very brutal torture, not waterboarding, not forced nudity or hypothermia, but hardcore, violent, brutal torture, including things like having his genitals sliced and being severely beaten and threatened at gunpoint.

And the British government said that they had this in their possession, but they refused to turn it over. The American government had refused to give him access to any of the information so that he could defend himself. And so, Mohamed went to the British court, and the British court said that he’s absolutely entitled to these documents, that international law and British common law do not allow countries to conceal evidence of torture and to send somebody into a military commission, where the death penalty might be imposed, and conceal documents that they might use to defend themselves.

And after the British court ruled that way, the British government said, “Well, the reason we can’t turn over these documents is because doing so would harm British national security, because the American government has threatened that if we conceal these — that if we disclose these documents or reveal to the world the facts and information that we have on how he was tortured, that they will terminate intelligence-sharing programs with us, meaning if they learn of a potential terrorist threat directed at British citizens or at our country, the American government won’t tell us any longer about the information that it receives.”

And the British court said, “Well, given those threats and given our obligation to protect British national security, we actually agree that these facts need to be concealed, and we’re going to keep out of our court decision any information shedding light on how Mohamed was tortured at the hands of American agents.”

And amazingly, the Obama administration issued a statement congratulating and praising the British government for keeping those secrets, and essentially reaffirming the threat by saying, “Now that you’ve agreed to keep this secret, we will continue our intelligence-sharing program.”

AMY GOODMAN: Jane Mayer, your response to Glenn Greenwald’s take on this?

JANE MAYER: Well, I mean, I think — you know, I’m a big fan of Glenn’s writings and follow it closely. I think that, you know, basically, this whole setup during the Bush years was a criminal situation, where you’ve got our government working with other governments doing things that were war crimes and violations of all kinds of rights. And the question for the Obama administration is whether they’re going to treat these things as criminal, or are they going to — they’re on the spot — are they going to cover them up? Right now, they’re trying to move forward and not get bogged down in what they see as something that’s divisive, politically poisonous, you know, a political problem for them.

I think it’s going to turn out to be a mistake for them to do this. I think they’ve — because these questions are going to keep popping up again and again. I mean, there are many other cases of detainees who also want to try to get some justice. I mean, there’s the Maher Arar case, who — you know, the detainee who was renditioned, the Canadian, who has been unable to get any kind of justice. There’s Khalid El-Masri, who was a German car salesman who was renditioned by the CIA. These people are all going to try to get some sort of justice for themselves. And I think the Obama administration — there are many, many other cases, too — is going to have to set up some mechanism to deal with this.

And they — you know, I’m giving them maybe a little bit more credit than Glenn is, because I think what they did in their first week in office was stupendous. They put out executive orders that said, from here on out, everybody’s got rights, everybody’s covered by the Geneva Conventions, the ICRC gets to see every detainee, we’re closing the black site prisons, we’re going to shut down Guantanamo. They are moving on — these things are not nothing; these things are really seriously great reforms.

And so, you know, the issue where things are getting hung up is in this issue of backwards looking — you know, what should we do with the criminal actions of the past? And do they get covered up, or is there going to be some kind of investigation and, you know, some kind of accountability? And I think that’s very much in play.

AMY GOODMAN: Glenn Greenwald, last word, and if you could also address rendition in that.

GLENN GREENWALD: Well, I mean, I actually agree with Jane that it’s a mixed picture, more than perhaps my answer might have suggested, because I was addressing two specific areas where I think the Obama administration has done the wrong thing. But she’s right that the executive orders issued in the first week were promising and encouraging, and there are complexities and conflicting pressures. They need to make sure the CIA doesn’t revolt over the idea that, you know, they’re going to be dragged into court for what they did. They’re figuring out ways to try and keep some of these secrets without becoming complicit in them.

I think the problem is, is that, exactly as Jane said, there’s going to be continuing pressure. There’s going to be real, you know, investigative reporters like Jane out there probably uncovering more and more facts about what was done, and it’s going to be increasingly difficult for the Obama administration to continue to participate in the concealment of these facts without, at some point, appearing to or in fact becoming complicit with them. And I think they’re fighting a losing battle.

As far as looking forward, you know, those executive orders were good, and they were encouraging, but they leave some of the trickiest questions open. You know, are we going to close Guantanamo but then move those due process-abridging military commissions inside the United States and call them national security courts, where they might be even worse? Are we going to, as you just asked and as Leon Panetta suggested, preserve some of the rendition policies that have led to such severe abuse and some of the most grotesque acts of the last eight years? I mean, these are all good questions that are very much unresolved. They’ve left most of the hard questions to the future. And I think those of us who opposed these abuses over the last eight years, the most important, the best thing we can do is to keep the pressure on the Obama administration and be skeptical about their motives and not praise them until their actual behavior and the evidence warrants it. That’s the check that I think they need to make sure they have, to the extent possible, [inaudible].

AMY GOODMAN: Glenn and Jane, we’re going to leave it there. Glenn Greenwald, thank you for joining us, albeit a problematic audio line, but a great video stream from Brazil, where you live. Glenn, constitutional law attorney and a political and legal blogger for His latest book is called Great American Hypocrites. And Jane Mayer — Jane Mayer is a staff writer for The New Yorker. Her latest article, called “The Hard Cases.” Thanks so much for joining us from Washington.

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