Ben Wizner, the litigation director for the ACLU’s national security project, cheerfully admits that its April 2011 Freedom of Information Act (FOIA) request for 23 of the very same US State Department diplomatic cables we all read this time last year, when WikiLeaks released them to five newspapers including the Guardian, was “cheeky” – a way to foreground the “absurdity of the US secrecy regime”.
And so it has. Nearly eight months after the original FOIA request, the State Department has finally released … 11 cables. Federal censors have helpfully redacted them, making it easy to see, by a simple act of comparison (which the ACLU performs for us, here), precisely which sections the State Department wants hidden. Missing are a dirty dozen cables the government refused to release – despite those cables having already been leaked, published and analysed in virtually every major national and international media venue – again, because they were classified as secret or deemed to contain sensitive information.
Administration officials unleashed plenty of hyperbole and hysteria when the cables were first published. But it turned out that none of the information in them actually endangered American citizens, allies or informants. They did, however, prove embarrassing for the US and many foreign leaders. Because it turned out that claims about national security were often an excuse to prevent us from seeing our government engaged in unethical, unconstitutional and, sometimes, illegal practices. These ran the gamut from extraordinary renditions, detentions and torture to shaking down other governments in an attempt to influence their political processes and tamper with their criminal justice systems.
We learned that the same Obama administration that had refused to pursue the perpetrators of the Bush torture regime at home had also tried to put its thumbs on the scales of justice in Spain – aggressively attempting to prevent a counter-terrorism judge from trying the senior legal minds of the Bush administration for their part in the torture of detainees at Guantánamo Bay.
We learned about the US attempt to scuttle the case of German citizen Khaled el-Masri, the greengrocer mistaken for a senior al-Qaida official. He was kidnapped, tortured, drugged, beaten and thrown into Afghanistan’s CIA-run Salt Pit prison, until – oops – they realised they had the wrong guy and dumped him in the Albanian outback. In public, Munich prosecutors issued arrest warrants for 13 suspected CIA operatives involved in his abduction and torture, and Angela Merkel’s office called for an investigation. In private, the German justice ministry and foreign ministry both made it clear to the US that they were not interested in pursuing the case, emboldening the US to refuse to arrest or hand over the agents.
If the first part of the ACLU’s agenda in asking for the 23 already-leaked cables is to highlight what it calls a “penchant for excessive secrecy in defiance of all reason”, the second is to spotlight the way in which the Bush and Obama administrations abuse the state secrets privilege to keep illegal programs from being judicially reviewed.
When the ACLU challenged the CIA on behalf of el-Masri in 2005, a judge dismissed the case. The US government did not deny that he was wrongfully kidnapped. Instead, it successfully argued that his case be dismissed because litigation of his claims would expose state secrets and jeopardise American security. This despite the fact that, as el-Masri pointed out, “President Bush has told the world about the CIA’s detention program, and even though my allegations have been corroborated by eyewitnesses and other evidence.”
First the Bush administration and then the Obama administration successfully evoked the state secrets privilege to prevent the ACLU from filing a federal lawsuit against Jeppesen DataPlan, Inc, the folks who helped the CIA fly extraordinary rendition victims to secret sites where they were detained, tortured and interrogated. Again, the government claimed that further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. And again, it appears to have won.
In the hall of mirrors that the US security regime has become, information that is not officially acknowledged cannot be used to hold government officials responsible in the courts. And an administration that can evade charges of misconduct, including torture, by hiding behind state secrets claims, even when all the details are publicly known, becomes the guardian of its own liability. That’s bad news.
Transparency and accountability are the oxygen of democracy. But don’t hold your breath waiting for this administration to respond to requests for either one.