Jerrold Nadler: We Must Investigate Torture … and Fix State Secrets

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nadler.thumbnail.jpgJane and I had a chat yesterday with Jerrold Nadler (D-NY), the Chair of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, to talk about his call for a special prosecutor to investigate the torture program. Chairman Nadler was clear:  "You don’t have much choice under the law–you have to investigate." The law requires, he explained, that such allegations be investigated. And if warranted, suspected crimes associated with torture must be prosecuted.

Nadler repeated, though, an important point. That the Justice Department, not the White House, must make these decisions. But, since the Department is implicated because of Bybee’s and Yoo’s role in the memos, we should have a Special Prosecutor to conduct the investigation.

As important as are Congressman Nadler’s calls for a special prosecutor, I was just as interested in his discusison about his efforts to introduce some checks on the use of state secrets to avoid prosecution. Nadler has introduced a bill that would introduce a process akin to the CIPA process (used during the Scooter Libby trial), where a judge would review evidence both to determine standing in a case, as well as determine whether substitutions for sensitive national security information could be used to litigate the case.

The bill, Nadler explained, is awaiting a committee hearing. But he is trying to get some support from DOJ for the bill before entering into hearings. Nadler recently met with Attorney General Eric Holder on this and a host of other issues (enemy combatant doctrine, the al-Marri case, warrantless wiretapping, the OPR investigation, as well as the torture memos). And, Nadler says, Holder seemed to agree to the principle, at least, of having some kind of CIPA-like process to state secrets.

Ultimately, Nadler contends (absolutely correctly, IMO), that the government should not be able to dismiss a suit by withholding evidence under state secrets. 

Between the Jeppesen Dataplan suit, the Binyam Mohammed suit, al-Haramain and all the rest of the warrantless wiretapping suits, preventing the government from demanding dismissal of a suit because of state secrets would go a long way to ensuring accountability when the government breaks the law. 

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47 replies
  1. BoxTurtle says:

    How do you try someone when the trail will require release of TS/SCI type info? Secret courts? Establsh a jury pool for jurors with TS/SCI access?

    We can’t require trial by judicial panel, trial by jury is a right.

    We can’t let secret information be a get out of jail free card. But there are legitimate secrets.

    But in this case, I’m not sure it matters anymore. With the information already public, we can certainly charge the interrigators who went beyond what was authorized, Rice, the lawyers, and Weinburger. We can get Goss for Obstruction. Shake those trees and see who squeals first.

    Boxturtle (First rat gets the best deal)

    • emptywheel says:

      Same way you did in the Scooter Libby trial–you redact what is TS/SCI and add in substitutions. Just about all of his notes are top secret, but that’s how they convicted him.

    • freepatriot says:

      But in this case, I’m not sure it matters anymore

      considering that Lyndie england has already been convicted of crimes, and sr grainer is still in prision for criminal abuse that george bush approved

      I’d say that we got the goods already

      • BoxTurtle says:

        Not a CIPA expert, for sure. I’ve been trying to come up with an example where what EW said and what I think I just read wouldn’t work and I’m not succeeding.

        I predict a lot of closed hearings and a classified annex to whatever bill might emerge.

        Boxturtle (We gotta stop getting scared and forgetting about the constitution)

    • NMvoiceofreason says:

      There are real secrets, and there are real bad guys in the world. The use of government classification would have been shredded by the founding fathers, since they did not see the “State” as possessing rights, only people possessed rights in their view. A State has powers, duties, and obligations. The obligation to keep us safe does not trump the right to a fair trial.

      I have advocated the conversion of the FISC (FISA court) into a court of general jurisdiction over all classified matters. CIPA-like processes are good, but when you have a court in which only the government can file motions, the fundamental fairness is gone already.

      There are many things we do not know and have no need to know. Who were the targets of FISA warrants during the Bush years? Who were the targets of the warrantless wiretapping? One is a bright line, the other is not so clear. Not everything is knwon, and not everything is knowable. Or at least that is what my priest says.

  2. Arbusto says:

    Seems to me a more balanced approach to dealing with State secrets is needed. Though the Courts are showing more cajones lately, especially Walker, having an Officer of the Court instead of a board decide what to redact or suppress doesn’t serve justice. (Hope I correctly understand that part of the CIPA process)

  3. danps says:

    Hi Marcy. General congrats on all the good press lately – you’ve earned all of it and more. Over a year ago I wrote that bloggers like you & Josh Marshall are this era’s Woodward & Bernstein, and I really think it’s true. I hope some of the larger media outlets have started to realize that too.

    Again, congratulations and keep up the great work!

    • Leen says:

      ditto. Marcy deserves some recognition for all of her work, leadership and commitment to justice. gives us hope

  4. Minnesotachuck says:

    Has anyone else noticed that when EW gets on a roll like she’s been on since those torture memos were dumped a week ago that the rest of us just can’t keep up? Look at the time stamps on this post. A full 31 minutes elapsed between when she posted it and the first comment! The rest of us are still catching up on the previous thread. Or the one before that in some cases.

    We need a name for what’s going on here between Marcy and Ackerman. How about the FDL Truth In Bush/Cheney Legacy Project? Other ideas?

    • SparklestheIguana says:

      I’m so proud of myself, I finally caught up. I’m patting myself on the back big time.

      Oh no! Say it ain’t so!

      Bradford A. Berenson, a White House lawyer in the Bush administration, said he has seen a surge in “anxiety and anger” in the last week among his former colleagues.

      (Charlie Savage, NYT)

  5. Mary says:

    I guess this is OT, but it’s a bit related. The memos that have been released had clssifications of Top Secret, Nonforn and there is additional info inbetween that is redacted. I would guess it would be an additional classification category reference, but can’t figure out why they would be redacting a classification category.

    Anyone have any thoughts on what the category might be?

    • BoxTurtle says:

      There are a few security classifications so secret that the name itself is classified. I kid you not. The NATO “Cosmic” classification used to be one of those.

      When they say “SCI”, they mean one of those classifications. Typically, the classification name is also the name of the program.

      Boxturtle (I suspect BushCo had an SCI for Marcy. )

  6. Mary says:

    Ultimately, Nadler contends (absolutely correctly, IMO), that the government should not be able to dismiss a suit by withholding evidence under state secrets.

    Especially so when the basis of the suit is the contention that Gov engaged in illegal (by statute or Constitution) acts because the Executive branch is not given the power to determine criminality – that’s a policy decision for Congress, not the Executive, and the interpretation of the possible criminality of the acts vis a vis the statutes and Constitution is a power in the Judiciary.

    One the you allow invocation of state secrets in cases where gov has engaged in possibly criminal acts, you basically rewrite the Constitution and create a secret monarchy, where the Executive can pick and choose what laws he will or won’t follow and what rules of law he will or won’t subject others to – acting as Conggress in granting secret exemptions, imposing secret laws and then acting judiciary in imposing secret interpretations and final determinations.

    • fatster says:

      “One the you allow invocation of state secrets in cases where gov has engaged in possibly criminal acts, you basically rewrite the Constitution and create a secret monarchy, where the Executive can pick and choose what laws he will or won’t follow and what rules of law he will or won’t subject others to – acting as Conggress in granting secret exemptions, imposing secret laws and then acting judiciary in imposing secret interpretations and final determinations.”

      Mebbe I’m just getting too old and comfortably numb, but I thought that was the whole point of their devising all this “state secrets” stuff anyway.

  9. Mary says:

    7 – Did Berenson also indicate that he’s hoping it will be as good for business as the former rounds of Bushie activities have been for him?

  10. skdadl says:

    OT, but related:

    “the multiplicity of departures from international norms that have taken place”

    That is from a ruling by a Federal Court of Canada judge ordering Ottawa to try to bring Omar Khadr back from GTMO. Judge O’Reilly listed the other serious reasons we have to repatriate Khadr, and there are many, but I think that that line is a shot across the bow for our federal government, and maybe yours:

    “I find, therefore, that the principles of fundamental justice obliged Canada to protect Mr. Khadr by taking appropriate steps to ensure that his treatment accorded with international human rights norms.”

    Harper has two appeals left (Federal Appeals Court and the Supremes). We shall try to discourage him.

  11. Mary says:

    19 – have they ever been seen in the same room?

    18 – thanks for that link skdadl – lots of shots across the bows in that, aren’t there? Including references to his youth, his inability to challenge his detention or circumstances of detention in a court of law, and that pesky fact of the place of detention too.

  12. MrWhy says:

    OT – decision available as pdf

    Federal Court [Judge James W. O’Reilly] has ordered Ottawa to try to bring detained Canadian Omar Khadr back home from Guantanamo Bay.

    PM Stephen Harper says govt may appeal the ruling.

  13. phred says:

    Gee, it’s beginning to feel like Christmas in April! The torture issue is finally getting some traction in the mainstream consciousness and now Nadler is raising my two favorite issues a Special Prosecutor and a desperately needed reconsideration of state secrets. Be still my heart : )

  14. Mary says:

    25 – well, you know when it first cropped up in a judicial setting it was in connection with a lawsuit by families for people killed in a gov plane crash. It was during a time of war and Gov lied to the Sup Ct and told them that having to reveal info about the plane and why it crashed would damage national security – the court of course thinking that the Exec had some uber important uber classified equipment it was testing and that we couldn’t risk the Nazis finding out about the super duper secret equipment. The court did, however, give the plaintiffs a different route in that case, which they did not want to pursue for other reasons.

    And now that, with FOIA and passage of time, the real story has come out (there as no secret equipment or anything involving national security – just a negligent gov employee and gov didn’t want to have to pay damages for the negligence or admit how negligent it was when it was trying to keep up it’s spiffy war machine image) and it’s now common knowledge that the Executive branch just lied to screw people and the courts let them — now with that a part of the public record, the Exec is being allowed to take the doctrine places where even in the bad old days it never would have been allowed.

    And it’s not just the secret wiretap suits that get shut down – it’s the Khalid el-Masri and Maher Arar suits that are being shut down too, even where the victim is there and can testify.

    • fatster says:

      Thank you ever so much for the information on the origin of “state secrets” which have made such deep ” scorch marks on our Constitution. I will be saving your comments and doing a little research now that you’ve definitely piqued my interest.

      But, looking at it another way, I guess having “state secrets” is handier than rounding up all the Congresscritters and getting them to agree by whtaever inducements necessary on passing laws making whatever-was-done legal–and with retroactive immunity to boot!

  15. melior says:

    There are a few security classifications so secret that the name itself is classified. I kid you not. The NATO “Cosmic” classification used to be one of those.

    Perhaps Nadler can include special instructions in the bill for handling Cheney’s bogus “Treat as Classified/SCI” stamp. I’m imagining something like issuing each federal clerk a stamp to use when these come up in non-classified rulings, that simply says “Treat as FISCt”.

  16. Mary says:

    28 – a start point if you wanted to do some research

    http://www.washingtonpost.com/…..02167.html

    As it happened, 1953 was also the year the Supreme Court decided the case that opened the door to the government’s increased use of the secrets privilege: Reynolds v. United States. In October 1948, a B-29 plane on a flight to test electronic equipment exploded over a town in Georgia, killing all five Air Force crewmen and four civilian contract engineers on board. An Air Force accident report noted that maintenance problems, an irregular flight crew, missing protective mechanics and the failure to brief everyone aboard on emergency procedures had contributed to the tragedy.

    When the families of the deceased civilians filed suit, the government first denied liability and held back the report, arguing that it was a matter of internal housekeeping. But as litigation proceeded, the secretary of the Air Force submitted affidavits swearing that the pilots had been on a secret mission and arguing that disclosing the records of the electronic equipment on the flight would harm national security. Officials refused to produce the accident report or even let the judge view it in chambers.

    …

    The case went to the Supreme Court. Although the government had downgraded the report’s classification to a level to which privilege did not apply, the solicitor general told the justices that the report contained state secrets. It was the Cold War era, and the Supreme Court’s 6-3 opinion overruling the lower courts noted that “this is a time of vigorous preparation for the national defense.” The court never reviewed the report, but simply accepted the government’s claim, in effect abdicating its judicial role.
    …

    In 1996, the report was declassified, and the adult daughter of one of the civilian engineers killed in the crash discovered it on the Internet. It contained no secret information about the event …

    • fatster says:

      Ooooh, much much gratitude, Mary! I am warming to this travesty much as I did a few years ago when I stumbled upon the Santa Clara-Southern Pacific 1886 decision which gave corporations the toe-hold sufficient to take over everything. Funny how this stuff sneaks in and then nobody can get beyond a state of cluelessness to do something about it. Grrrrrrrrr.

  18. burqa says:

    One question that occurs to me is I wonder who is going to play the role of John Dean in all this?

    • Hmmm says:

      I asked bmaz last night whether he thought Zelikow had that potential, he said no. Frankly after Rummy and Dick saw Watergate unfold first-hand, I can’t imagine the W administration would have tolerated having anyone of remotely questionable commitment to the cause on the inside of their gang. Nobody with a conscience was even there, in other words.

  19. SanderO says:

    Frankly I think this classification thing is way way way out of control – What’s the need for all the secrecy in what our government is up to?

    I don’t know that all these levels of security clearance and levels of classification of documents and information can be gotten rid of, but we really need to unwind this. It’s gone way too far and it’s not only anti democratic, but it distorts the entire justice system.

  20. Hugh says:

    Let’s see. Nadler wants a special prosecutor, and Obama just wants this all to go away. Who will prevail? Yeah, that’s what I thought too.

      • Hugh says:

        Just looking at the trends and doing the math. As far as I can tell, Obama has not changed his postion on any of this. He had guys like Cass Sunstein out there inveighing aggainst the criminalization of “policy differences.” Yesterday I linked to a couple of oxdown diaries I wrote from just before the inauguration in which Obama first promoted the line about looking forward not looking back. He was against rank and file prosecutions then and decidedly tepid about pursuing any criminal investigations at all. This is pretty much where he is now.

        • Leen says:

          I was not on Obama’s bus when I heard him keep repeating “move on, turn the page” crap . So many of the Dems and Republicans have been repeating this “move on, turn the page” mantra for several years now. While I was putting in many hours for former Congressman Sherrod Brown when he was running for Dewine’s senate seat the false pre-war intelligence came up and the issue of accountability. Sherrod Brown repeated the we don’t want this to be a “blame game” I felt like I had been punched in the gut.

          My response to Brown “since when did justice and accountability start being defined as the “blame game”. This is all so Rovian

          I guess after Republicans spent years investigating blow jobs they now define all investigations into administration officials actions as “vengeance or witch hunts”

          Quite the distance between investigating bj’s and investigating intelligence snow jobs that result in hundreds of thousands dead and injured and torture. At least in my book

  21. Leen says:

    Nadler ” you don’t have much choice under the law-you have to investigate”
    does this statement reflect Nadler’s past stance on issues?

    or is this his response/ approach when the Jane’s and Marcy’s of the U.S. are breathing down his neck?

  22. Bluetoe2 says:

    and yet we here that Obama and Harry Reid think a thorough investigation of torture is nothing but a distraction. A distraction from what? Obama’s organic garden and Reid’s ring record?

  23. tjbs says:

    A state secret is the PAT TILLMAN assassination by an American weapon.
    State secrets seems like a license to kill.

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