Exclusive: Senator Feingold Hits Obama Administration Over Extraordinary Rendition Decision
Senator Russ Feingold is sharply criticizing the Obama administration over its controversial decision to maintain the Bush administration’s position in a closely watched lawsuit involving alleged victims of extraordinary rendition, a decision that generated a storm of criticism yesterday.
“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party.
The case has been closely watched as an early signal of how Obama would handle one of the Bush administration’s most controversial “war on terror” legal weapons — specifically, whether the Obama administration would uphold the Bush administration’s claims of state secret privileges, citing national security, to prevent courts from ruling on such matters. Feingold’s statement suggests he intends to maintain a controversial posture towards the White House on the issue.
Feingold’s office also confirmed that he is seeking a secret briefing on the case from the Obama administration — something that could put the administration on the spot and potentially ratchet up the confrontation.
“I have asked for a classified briefing so that I can understand the reasons for this decision,” Feingold’s statement said.
The case involves five men — one Guantanamo detainee, two jailed in Egypt and Morocco, and two free — who sued a subsidiary of Boeing called, Jeppesen Dataplan. They accused the company of helping the CIA fly them to other countries and CIA camps to be tortured, as ABC News put it.
The case was tossed out of court a year ago because of national security. Yesterday the appeal, which had been brought by the ACLU, was heard in the Ninth U.S. Circuit Court of Appeals.
ABC News, citing a source inside the court, reported yesterday that a Justice Department rep told the court that the Obama administration stood behind the previous administration’s case, with no ambiguity. The news infuriated civil liberties groups, who wanted the new administration to let the case continue.
But a spokesperson for the Justice Department, Matt Miller, defended the decision, telling ABC that the new administration would “invoke the state secrets privilege only when necessary.” He said it it wouldn’t be “invoked to hide from the American people information about their government’s actions that they have a right to know,” and said Attorney General Eric Holder was reviewing all state secret privilege matters.
But that’s unlikely to satisfy Feingold, who reiterated in his statement to me that he’s pushing for new legislation to “give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct.”
The current extraordinary rendition case is being taken by some critics as a hint that the new administration may prove to be insufficiently aggressive in reversing Bush-era legal justifications for certain aspects of what used to be called the “war on terror,” as well as the Bush administration’s use of “national security” as a shield against charges of general governmental wrongdoing.
Update: In the interests of accuracy, I’ve edited the last graf above.
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Senator Feingold, where the hell was all of this indignation when George Bush kept us in the dark about the war and the terrible acts that were committed! How dare you, now, be concerned by the Obama administration’s decision. All of you are hypocrites! I would love to see all of you old men replaced with younger, more innovative men and women! Our country will never move forward as long as there are old men like you as our representatives. Our country deserves better!
Actually, Feingold was the most vocal member of the Senate in opposition to the Bush administration’s abuses. Remember he was the only member of the Senate to vote against the “Patriot Act.” He’s absolutely correct to maintain the same vigilance with the new administration. We should all be grateful to him.
I have to agree that Feingold played a lead role in opposing the Bush admin.
N.B.: The issue at hand is not a “legal justification[] for certain aspects of what used to be called the ‘war on terror.’” The issue is the use of the “state secrets” privilege to dismiss civil cases alleging governmental wrongdoing . . . any governmental wrongdoing that touches on “national security” . . . not just the “GWOT.” This is not an idle distinction.
Background information:
David Luban at Balkinization.
Glenn Greenwald at Salon.
Hilzoy at Washington Monthly.
I guess Kimmie was too young to remember what happened during the Bush administration
SGEW, fair point, but I think you misunderstood my point. I’m not saying that the extraordinary rendition question only has relevance to GWOT — just that people are seeing this decision as potentially a bad omen for equally tough decisions that have to be made about GWOT.
Senator Feingold was a co-sponsor of Senator Kennedy’s “State Secrets” bill (as was then-Senator Biden), which attempts to limit the government’s use of the state secrets privilege.
Not only that, Candidate Obama cited the Bush administration’s use of the “state secrets” privilege as one of the problems he wanted to change if elected.
Rather than criticize Senator Feingold, he should be lauded as someone holding the Obama administration to the same standard he wanted to hold the Bush administration to. If something is wrong, it doesn’t matter who is doing it, it is still wrong.
Is there any reason why Feingold didn’t ask for the briefing privately before going public with his criticism? If facts can alter the view that there’s a principle here that has to stand irrespective of circumstances, is this maybe a little grandstanding on his part?
Greg,
I believe you may be misunderstanding my point: the legal controversy over the D.O.J.’s argument is not so much about extraordinary rendition at all (which is a contentious issue already, to say the least!), but about a legal theory that could apply to all civil cases alleging governmental wrongdoing.
Yes, this case (on the merits) is about rendition and (extraordinarily gruesome) torture. And yes, people are seeing this as a bad omen (as they should, in my opinion!). But the actual legal question has little to do with rendition or torture – It is about holding the government accountable for possibly criminal actions, no matter what those actions are, or who is currently sitting in the chair of the presidency.
Mind you – this distinction only truly matters to people who are versed in this particular legal issue. But I thought it would behoove me to pick that nit, before Glenn Greenwald lays a pile of derision on you for framing it this way (poor Ambinder!).
I believe you may be misunderstanding my point: the legal controversy over the D.O.J.’s argument is not so much about extraordinary rendition at all (which is a contentious issue already, to say the least!), but about a legal theory that could apply to all civil cases alleging governmental wrongdoing.
Man, I cannot thank you enough for understanding what the government lawyer is saying about this.
Is there anything else someone can think up to point to and say: O MY GAWD, it’s Bush III?!
Give it a rest people – the way I read the situation is it is a legal point and not a policy response. Dammit.
Good for Feingold. And congrats Greg on the exclusive.
Sad to say, but Obama already proved he can’t be fully trusted on rule of law / civil liberties matters (see his vote for the loathsome FAA despite a previous promise to filibuster any bill with retroactive amnesty for the telcos). Not that any president should be fully trusted.
There are many problematic issues with the DOJ decision here. One of them: Why are they making a blanket invocation of the state secrets privilege (as the Bush administration repeatedly did) rather than merely seeking to exclude problematic evidence (as prior administrations did)? That’s a question I’d be very interested in hearing the DOJ answer.
So e.g. if the concern is exposing and embarrassing foreign governments they could insist that documents be redacted so the identity of the specific foreign governments is protected. Also as I understand it there are procedures for presenting evidence to the judge in secret without giving the plaintiffs access.
the 180 by mr obama is just horrendous. transparency much?
Crust: I think you mean “F.I.S.A.”, not “F.A.A.”
I love both Feingold and President Obama and I too must agree that Feingold was very vocal on his objections to Bush’s stance on this matter and many other issues surrounding Civil Liberities and privacy. I think what I am hearing is that the administration would like to review the designated state secret privileges in this case, one by one, before claiming a blanket release of all of the information. This one we will watch.
The Bush administration left President Obama a lot of options and power–why give all of them up in the first three weeks of office until you find out what you want to keep and those you want to relinguish. I know it seem as though President Obama has been in office longer, but he has been President less than 4 weeks, give him time.
Pres Obama’s administration should be given time to take a breath before everyone starts with the quips! Sen Feingold has been a democrat who has criticized Obama time and time again. This is not a problem because it keeps him and his administration honest. The problem I have if this story is true is, why would this senator go to the press first with his criticisms and not to the administration first. He goes public before requesting a classified briefing from the administration?
Another thing about security is, if you knew people were plotting to kill you and yours, it pays to take a good look at all the measures employed to take care of your house, both those you strongly agree with, slightly agree with, slightly disagree with and strongly disagree with. The ones he strongly disagreed with he has eliminated like torture but others might be effective but need to be modified to protect innocent citizens.
This administration is less than a month old and they have accomplished far more than most if not all of the administrations that came before them. I did not vote for President Obama but I am very glad he is president today because seeing now what the US has to put up with, hawkish ideas only will not do, however I am a believer of a mixed back of hawkish policies with strong honey put in another way of saying it is Carrot and Stick policies. It is much easier to be an armchair quarterback than it is to be on the field playing the game. Perhaps if Mr Feingold had all these decisions to make in a 3 week period out of a 4 year presidency, he may think and act a lot differently than he is at the moment.
All those who criticized his picking the same Washington people for his cabinet and not new and fresh blood, after the bloody fight with congress these past weeks, especially with the republicans over the stimulus package, how many of you think, newbies would have been as effective in this fight? They probably will still be learning the ropes and been unable to get the token republicans to vote for the package. So don’t be too quick to judge, give him and his administration some “breathing space” in other words TIME. They did not start this they got there on day one and found a table full of poop and they were asked to clean it up. That they are willing is a sign of courage and patriotism that so few people even recognize. The building of the World Trade Centre probably took several years to go from an idea to reality but it took America’s enemies about 1 hour to bring them both down. Remember it is easier to destroy than to build. They are trying to build give the TIME.
SGEW, I’ve edited the last graf to read as follows:
The current extraordinary rendition case is being taken by some critics as a hint that the new administration may prove to be insufficiently aggressive in reversing Bush-era legal justifications for certain aspects of what used to be called the “war on terror,” as well as the Bush administration’s use of “national security” as a shield against charges of general governmental wrongdoing.
Why not let the Ninth Cir. panel do their job? Urgency of concern does not have to drive the timeline. There may be a good reason to not disclose the information; ultimately the matter will be resolved to the displeasure of someone, but I hope the “Truth” will out.
@Realist,
I am in full agreement with you on many of your points. I have used the “Everyone Chill the [expletive deleted] Out: I Got This” Lolbama argument quite a few times over the last few months, and I absolutely agree that “[i]t is much easier to be an armchair quarterback than it is to be on the field playing the game.”
However, I suggest that this particular legal issue is much, much deeper than you might think. It is the first serious disappointment that I have encountered from the newly minted Obama administration (F.I.S.A. being pre-election), and I am one cynical, hard-to-dissapoint-after-W, low-expectations S.O.B.
I only ask that you read the links discussing this issue that I posted (above), and then tell me that we should let this one go. This is deeper than rendition, or even the Bush administration’s quixotic war on tactics. This one goes to the very notion of governmental culpability for any wrongdoing whatsoever.
@Tena (Hi Tena!) – sometimes a “legal point” is a “policy response.” I was only saying that it wasn’t about the policy that Mr. Sargent was suggesting (i.e., rendition alone).
Finally: No, nobody can really (seriously) say that “ZOMG! He’s just like Bush!!1! We should’ve elected Nader/Paul/Kucinich/Jesus!” If the Obama administration starts, I don’t know, torturing innocent civilians to death, then those calls would be appropriate. However, in this particular case, in this particular specific argument, the D.O.J. under Obama has put forth literally the same legal argument the Bush did: a legal argument that I considered monstrously wrong when Bush did it, and I’ll be god d*mned if I stop now just because the politician I supported (since 2006, fer cryin’ out loud) is in office.
@Greg,
Awesome. Can’t ask for more. Hopefully you can now avoid the wrath of Glenzilla (and jerkwad legal nerds like me)!
SGEW:I think you mean “F.I.S.A.”, not “F.A.A.”
Nope. I meant FAA, i.e. the FISA Amendment Act.
@Crust:
(googles. facepalms.)
Huh. I always just referred to it as the FISA bill. Shows what I know!
Thanks, Senator Feingold! Seems we’re down to a handful of progressive senators willing to take on any administration that weakens our democracy. We are a nation based on laws. If we lose that, what are we?
hey all, open thread posted…
http://theplumline.whorunsgov.com/stimulus-package/happy-hour-roundup-10/
g
Kimmie — Senator Feingold was very vocal and very critical of the Bush Administration on this matter. I was extremely disappointed in the Obama Justice Department yesterday but I am trying to refrain from over-reacting. It has only been a few weeks and Holder wasn’t confirmed until a few days ago. I don’t think howeverthat it was out of line for Senator Feingold to put the Obama administration on notice that they do not get a free pass on this. It is not going to be easy to hold the Bush Administration accountable for their war crimes. There are a lot of Americans who will sympathize with a President who committed war crimes but believed he was doing what he had to do to keep the country safe. The investigation will tear this country apart. Healthcare and education reform or the Constitution? I don’t think Obama has a choice but it isn’t going to be an easy one.
That’s an excuse? The DOJ lawyer said it had been actively reviewed this case and the Bush position had been vetted. You think they are likely to reverse themselves now?
If they had not reviewed the case sufficiently, they could have asked for more time to review it. Instead, they back up one of the most pernicious acts of the Bush DOJ, claiming that government actions cannot even be reviewed by a court.
@SGEW
I actually understand your argument regarding this and I am not saying you are wrong. A few years ago I would have whole heartedly agreed with you without giving it a thought but I was in London during the terrorist bombings in 7 July 2005 and it was only by the Grace of God that I escaped it, I went to work very early that day because we had auditors coming and so I was already at work when it happened. My route, my bus, it was surreal and the worse part of it is, unlike in the case of 911, where the terrorists were mostly Saudis, in this case all the terrorists were British! That was a wake up call for me. As much as the privacy law is important, Americans have to learn to adjust to the world after 911.
In fact I recently saw the movie rendition and it was heart breaking what they did to the innocent man and his family. So this is where it gets tricky where innocents are involved. But unfortunately the number of bullies in the world has increased, we cannot continue with the process that was valid before 911, it is outdated and will not deter many of these bullies. I am at a loss as to what should be done. As for the FISA Bill or F.A.A as you stated, perhaps they can make it less intrusive I do not know but after those attacks in London by British terrorists, for my safety and that of my family, I do not want to hear that the reason that federal agents could not stop a deadly attack on Americans is because a bill prevented them from listening in. That does not wash with me. As far as I am concerned, if you have a credit/ debit card, a passport or electronic card for gym membership, someone is already listening in only you are not as aware of it as you should be. Has anyone ever wondered how the telemarketers seem to know you are moving house or looking to buy a new car etc when you have barely made up your mind. They usually have your full address complete with phone number. So my argument is if sales people can snoop into my life to make money, then what is wrong if the government does the same to keep us safe? There is the abuse of this ability and this again is where it gets tricky.
Yes my argument might be different if I am an innocent who has been carted off to be interrogated in only God knows where but if you know of a better way of finding those who are masquerading amongst US only to later do us all harm then I welcome your pitch for now this is all I have.
I voted for Obama. I am pleased and deeply touched by his actions on a regular basis. And I am STILL going to get riled up if he or his administration even gets close to doing something I don’t like. I slammed him, and am still mad at him, for his betrayal on FISA prior to the election. And I still voted for him and cried salty tears when he announced the closure of Guantanamo. So…I am not going to chill out about this. On the contrary, I’m going to raise a big stink (well, as big a stink as my tiny little blog can make) and perhaps along with other people raising their voices, we’ll get his attention. The MSM isn’t covering this as much as I’d like, so yay for Feingold for going to the press before talking to Obama. The pressure needs to be ON. There are people’s lives at stake here. People have been abused and tortured and some of them, as well as their families, will never be the same because of it. This **** (abuse of States Secrets Act, torture, rendition) must stop. And our collective voices can help it stop.
Greg, another question you might want to ask the Obama DOJ: Why didn’t they just ask for an extension?
As Greenwald points out, this is a civil case so it doesn’t have the same need for swiftness that a criminal case where someone is in prison would have. An anonymous official is claiming to Ambinder that they asserted privilege in part because they’re still trying to work out where they stand saying:
That just doesn’t jibe with trying to get the case dismissed on states secrets grounds, rather than seeking an extension.
It’s not nice to make up your own acronyms, especially from another acronym. The fact that FAA is already a well-known acronym for the Federal Aviation Administration adds to the confusion.
If you are talking about the Foreign Intelligence Surveillance Act, use FISA or spell it out.
It is about charging prisoners, allowing them to have attorneys and a timely trial without torture. I imagine Mr Feingold thought this was an urgent issue for the public to be informed and thereby write and call our congressmen about it, if he waits for a private hearing, this will be past history.
Ibett
Everybody who is being critical of Feingold on this sounds to me like they don’t want the same standards applied now that their guy is in the WH.
Give me a break. Russ is right to pressure the Obama admin. about this and to do so publicly. It would be so much easier for this to be ignored by the Obama WH if Russ was all discreet and worried about how it looks for Obama. Right is right and wrong is wrong. If Obama doesn’t want to look bad, then he shouldn’t do stuff like this.
Those of us who are organized to act on prosecution welcome all you smart, informed people to our lists: Progressive Democrats of America has an Accountability & Justice Working Group. Go to http://pdamerica.org/policy/ and sign up. Or go to AfterDowningStreet and get active in any of the groups represented there. We need you!
Feingold is the most vocal supporter of civil liberties and the Constitution in the Senate. Kimmie, you are showing complete ignorance of everything he has done to make the country a better place. He is supportive of the rule of law as it applies everyone, including the past and current president. All you have to do is take your ignorant, self-righteous brain to the internet (they have this thing called google now) and look up everything Feingold has done to oppose unjust war, torture, and excesses of the previous administration. I know it’s the internet and spouting off is what you are supposed to do, but as a die hard supporter of Feingold since ‘92, you hit a nerve with your level of ignorance.
Bravo Senator Feingold
I wish you were president,
We need a man who stands by his convictions rather than caves each time