"My Administration is also confronting challenges to what is known as the 'State Secrets' privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government."
Thus spoke President Obama in his national security speech last week.
Which makes an odd coincidence ever odder. The odder coincidence is that in the same week as the President was arguing for more transparency in government and railing against the idea of protecting information "merely because it reveals the violation of a law or embarrasses the government" - he was invoking it yet again.
In a bid to squelch a U.K. court case involving alleged British complicity with the CIA in the rendition, imprisonment and torture of a British resident, the Foreign Office presented a letter urging continuing secrecy from - yes, you guessed it -- the Obama Administration.
From an 'unnamed official' in the Obama Administration.
The Foreign Office refused to disclose to the British High Court judges who the letter was from or to whom it was written, to say nothing of its contents, which were heavily redacted. The Foreign Office refused to explain why. They simply said their reasons for secrecy must also remain suppressed.
Here's the back-story:
In 2002, an Ethiopian citizen and British resident named Binyam Mohamed became one of the CIA's "frequent flyers." He was arrested in Pakistan, allegedly stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.
Then he was allegedly once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured. He was eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo.
Mohamed was released from GITMO in February 2009, while he was on a hunger strike. He claims he was offered his freedom earlier if he agreed to confess to terror-related crimes. He refused.
He is currently attempting to sue the British Government, and specifically its intelligence service, MI5, for being complicit with the CIA in helping to facilitate his rendition.
When Mohamed's case first came to the British courts, British Foreign Secretary David Miliband said the U.S. threatened to stop sharing intelligence with the Brits if details of the case were to be disclosed. He later denied there was any such threat.
But by this time, the case had caused a firestorm in Britain, with the Loyal Opposition accusing the government of doing a great job of living up to its caricature of being America's poodle.
The British High Court judges were equally outraged. They said the refusal by U.S. to disclose evidence that could prove a British resident held at Guantánamo Bay was tortured was"deeply disturbing."
The court said there was "no rational basis" for the American failure to reveal the contents of documents essential to the Mohamed's defense.
In a particularly damning passage, Lord Justice Thomas and Justice Lloyd Jones said the documents provided the "only independent evidence" capable of helping Mohamed and his defence. Suppressing the material "would be to deny him the opportunity of timely justice in respect of the charges against him," which was a principle dating back to "at least the time of Magna Carta and which is a basic part of our common law and of democratic values."
The Court ordered the British Government to turn over 42 documents, which it has thus far largely failed to do. When Mohamed's lawyer, Clive Stafford Smith, pressed the issue by going back to Court for another hearing, Miliband's lawyers continued to oppose disclosing any documents that might reveal the extent of U.K. government complicity in Mohamed's treatment.
There will be another hearing in about a month, at which time the judges will finally decide whether Mohamed's suit can go forward.
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