The honeymoon is over. The Obama administration, which had promised an end to Bush-era constitutional abuses, has done an about-face, reversing its opinion on the executive “state secrets” privilege that it denounced during the campaign.  To the chagrin of civil rights groups and those who voted for a true change in government, Obama and company have seemingly forgotten their prior position against Bush’s flagrant miscarriages of justice with this surprising decision and their similar position regarding the practice of extraordinary rendition.

In order to fully understand the importance of this decision, one must first grasp how and why the privilege has been drastically altered during the last decade. While the state secrets privilege goes back to the 1950s (with roots dating to the 18^th century) and was used throughout the Cold War era approximately once a year, the post-9/11 Bush administration scaled up this practice to six times a year on average. Yet the most important difference lies in the way “state secrets” was invoked: previously, the order only prevented individual pieces of evidence from being used in court; the Bush administration began using this privilege to have entire cases dismissed. Such action is an outright abuse of executive power and thwarts the pursuit of justice, for it allows the executive branch to operate above the law.

In the past week, the Obama Department of Justice decided to maintain the Bush administration’s use of the state secrets principle in the federal court hearing of Mohamed v. Jeppesen DataPlan to the surprise of the judge and those following the case. White House counsel Gregory B. Craig sought to pacify those up-in-arms over this matter by stating the case had been reviewed by the Attorney General and others who “came to the conclusion that [dismissing it] was justified and necessary for national security.” He further added that the Department of Justice is reviewing Bush’s use of state secrets and advised against a too-hasty assessment, “Every president in my lifetime has invoked the state-secrets privilege…The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.” [1]

Yet the issue here is not that the state secrets principle should be altogether banned – no one denies that from time to time certain cases will arise in which some of the evidence must remain secret in the interest of national security. However, in the Mohamed v. Jeppesen DataPlan lawsuit, the supposedly “secret” evidence can be obtained from public records and therefore constitutes no risk to state security. The Department of Justice's only reasoning must be that a public trial would embarrass the US and its accomplices in these crimes.

Related to this matter is the practice of extraordinary rendition, or “torture by proxy” as it is commonly known. Like the principle of state secrets, original rendition, in which an enemy is brought to the US to stand trial, has been expanded in the fight against terrorism. Since the 1980s, and especially since the mid-90s, the US has relied on extraordinary rendition - enemies are apprehended and taken to foreign countries for interrogation and detainment. While these countries state they do not use torture, the evidence proves otherwise and the use of torture is well documented. If Obama is really serious about restoring the US' reputation abroad, he should think twice before becoming mired in such an objectionable situation. In their Congressional hearings, several members of the Obama administration, such as CIA Director Leon E. Panetta, Attorney General Eric H. Holder Jr., and Solicitor General Elena Kagen, left loopholes in their anti-torture rhetoric to allow for continued extraordinary rendition. Kagen argued that according to battlefield law, an enemy may be detained indefinitely without a trial even if s/he is captured outside of the combat zone. This is a flagrant violation of habeas corpus. Obama has repeatedly stated his opposition to Bush's use of torture, yet by feigning ignorance of other countries use of torture on behalf of the US he is equally guilty.

So what can be done? Democratic senator Ted Kennedy sponsored a 2008 Senate bill which sought to curb this practice by prohibiting the dismissal of an entire lawsuit under the pretense of revealing state secrets, in effect returning to the pre-9/11 interpretation of the state secrets privilege. The State Secrets Protection Act was supported by all Democrats on the Senate Judiciary Committee, including current Secretary of State Hillary Rodham Clinton and Vice President Joe Biden, as well as Republican Arlen Specter. The Committee voted in April 2008 to approve the bill by 11-8, although it was never submitted to the full Senate due to a veto threat by President Bush. As Democrats now have a majority in both the Senate and House of Representatives, they should take advantage of this to push the bill through.

The overall international committee expected a weaker and more easily manipulated Obama administration – an antithesis to Bush – and perhaps the new president wishes to prove his power. However, the strength of the administration should be measured by its adherence to international law and respect for civil rights and liberties, rather than the number of people it has subjected to extraordinary rendition.  The true nature of the Obama Department of Justice has yet to be revealed, and perhaps as Craig states, this will not become a routine occurrence. True, Obama issued sweeping reforms in his first few days in office, basically canceling the previous justice department's decisions regarding interrogation, promising  to follow the Geneva Conventions, and closing the “black hole” CIA prisons and Guantanamo.  These actions are tremendously significant and should not be brushed aside; however, this does not absolve Obama from dealing with the lingering issues from the Bush administration. The president has stated he is more interested in looking ahead than dwelling on the past, regarding an investigation into Bush's misdeeds; but by refusing to acknowledge or refute these actions in order to avoid embarrassment, Obama becomes complicit. And that is not change we can believe in.