Plus Ca Change

Well, it's a point (the one about Obama's change is politics by other means) I've been trying to hammer home here. But nobody reads this shitty blog.

However, lotsa and lotsa pipple read, Glen Greenwald at Salon:

[...]when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers.

With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

That's why I called yesterday's announced changes to the state secrets policy a "farce" (here's a Washington Times article today reporting on reactions, including mine). Yes, the changes they announced sound better in theory than what existed previously. It's nice that the DOJ claims it will voluntarily impose a higher burden on itself before asserting the privilege, will require the approval of the Attorney General, will avoid asserting the privilege only to avoid embarrassment over government wrongdoing, etc. But none of that would have altered the Obama administration's controversial, Bush-replicating assertions of the privilege. Not only the Attorney General, but the President himself, explicitly endorsed the specific assertions of the privilege that triggered the controversies in the first place: to block, in advance, lawsuits brought by victims of Bush's torture, rendition and illegal eavesdropping programs. This "new policy" would plainly allow the continuation of that conduct because the decision-makers now -- the DOJ -- are the same ones who asserted the privilege in the first place. So how, in practice, would this change anything?

Most important of all, the central abuse is rooted in the ability of the Executive Branch to assert the secrecy privilege without any binding limitations imposed by Congress and enforced by courts. We're not supposed to have a system of government where we rely on the good faith of the Executive Branch to monitor itself. Without a law in place that limits the President's ability to have entire lawsuits dismissed on secrecy grounds, abuse is inevitable.

The last administration proved that, and so has the current one. The institutional bias of the Justice Department is that it sees the world from the perspective of the Executive Branch and wants to win cases on its behalf, and the state secrets privilege is far too potent and tempting a weapon to leave in their hands in unfettered form, hoping upon hope that they will exercise it responsibly. The abuses were coming from the DOJ in the first place; how can the solution possibly be to trust that the DOJ will police itself responsibly in the future? Why shouldn't these abuses be curbed by an act of Congress and enforceable by courts? Yet again, the policy the Obama administration announced -- clearly designed to undermine the perceived need for a law to limit the privilege -- has pretty words in it, but it enacts no real changes.