DISAPPOINTING...?

[UPDATE BELOW]
Today, a DOJ lawyer appearing before the Ninth Circuit Court of Appeals on behalf of President Obama did something which is already upsetting many, many people. For years, liberals fumed over the Bush administration's invocation of the "state secrets privilege" to prevent courts from hearing cases related to its "extraordinary rendition" program, by which the US has turned over detainees for harsh interrogation in other countries. Many tied this program directly to former President Bush, given his shameful policy on the harsh treatment of detainees in American custody, and expected extraordinary new transparency regarding this program once President Obama took office. However, today the DOJ lawyer mentioned above made clear that the government was still invoking the state secrets privilege in seeking the dismissal of a claim related to extraordinary rendition.

This is a real punch to the gut for left-leaners and libertarians who championed Obama. To their minds, his election meant a 180 degree turn from the Bush administration's detention policy, including extraordinary rendition. And justifiably so - Obama was unequivocal in his denunciation of torture and his promise that it would not occur under his administration. This is why his first executive orders closing Guantanamo, ensuring compliance with the Geneva Convention and starting a review of detention policy were so promising. Many will ask why Obama would stop short with extraordinary rendition, a seemingly inhuman practice that should be cast into the waste bin of history along with other Bush-era practices.

Granted. Having not heard the other side of the argument (since the government refuses to give it on national security grounds), this is a deeply troubling decision - one would think that a victim of rendition should get his day in court. A few things should be remembered, though. First: extraordinary rendition was not a policy begun by George W. Bush - it has been used since the early 1990s. As such, rendition is much more of a staple of American foreign policy than liberals may want to admit. Second, a lower federal district court has already reviewed the classified information forming the basis for the DOJ's privilege claim, and found that the claim was well-founded. The lawyer today reminded the Ninth Circuit of this fact:

What the A.C.L.U. is asking, he said, is that the case be allowed to go forward, giving the courts a chance to decide, based on classified information revealed solely to the judge, what should be allowed to be discussed.

But Mr. Letter said that the lower court judge, James Ware, did receive classified information and came to the correct conclusion in dismissing the case last year. He urged the judges to pore over the same material, and predicted “you will understand precisely, as Judge Ware did, why this case can’t be litigated.”

I doubt this is the last we'll hear of this decision. The Ninth Circuit still has to rule on the ACLU's appeal of dismissal, and should they affirm (as I expect they will), there is little doubt that the ACLU will file an appeal with the Supreme Court.

For my part, ambivalence is the word of the day. I'm hesitant to really call Obama out on this. Yes, it certainly does not fit with his campaign rhetoric, and that's unfortunate. But on the other hand, campaigning and governing are two different things, and I'm inclined to trust the Obama administration when they say that the state secrets privilege is genuinely necessary in this case. Plus, this decision doesn't mean that rendition is actually ongoing (though whether it is is anyone's guess) - it simply means that a case involving rendition will not be heard by the courts. I hope the administration has an extremely good reason for this, and further, I hope that it decides to terminate an egregious and hypocritical practice which, along with even worse abuses by the Bush administration, has tarnished America's reputation in the world.

UPDATE: Marc Ambinder over at the Atlantic had an excellent article today about why the Obama administration made this call. The explanation is exactly what one would expect out of an administration that, so far, has shown itself to be prudent, patient and practical. A quick summary:

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

"If you decide today precipitously to waive this privilege, you can't get it back," an administration official said. "If you decide to assert it, you can always retract it in the future."