On February 25, Senator Sheldon Whitehouse (D-RI) made an impassioned speech on the Senate floor in support of the proposal from Senator Patrick Leahy (D-VT), Chair of the Senate Judiciary Committee, to hold a hearing on the creation of a commission to investigate potential criminal acts that may have occurred while the Bush Administration was in charge of the Executive Branch. In this post, I speculated that Senator Whitehouse seemed particularly upset about abuses that may have occurred and wondered whether he might have reason to believe that very disturbing crimes may have been committed. In particular, his conclusion that "This is no small thing, and not easy; this will not be comfortable or proud; but somehow it must be done" seemed especially heart-felt.

A little more than two weeks before that speech, the Obama Administration surprised many observers in the Mohamed et. al. v. Jeppesen Dataplan, Inc. lawsuit, when it supported the Bush Administration’s position that this case about extraordinary rendition should be dismissed, because, as the New York Times reported, "even discussing it in court could threaten national security and relations with other nations." Speaking for the Holder Department of Justice, attorney Douglas N. Letter assured the court that the position had been "thoroughly vetted with the appropriate officials within the new administration."

In a follow-up interview, again with the New York Times, President Obama’s Counsel Greg Craig elaborated:

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance.

Craig’s statement, when coupled with a number of articles in the British press over Obama Administration attempts to prevent disclosure of Mohamed’s treatment, seems to me to build the case that the Obama Administration is taking the position that disclosure of the details of Mohamed’s treatment would damage US security. Is this position dictated by the knowledge of how outrageous the crimes against Mohamed were? After all, it was even reported that Mohamed had his genitals sliced with a scalpel. Is the Obama Administration taking the position that disclosure of this and/or other extremely degrading acts would damage US security because of the outrage it would produce?

With that as background, Senator Whitehouse’s first question in the March 4 hearing is especially revealing. Here is the YouTube:

Note that Whitehouse prefaces the question by saying that we don’t know what happened, but that disclosure of any crimes is a positive step for the rule of law, re-establishing our moral standing and other related reasons. He then poses the question of whether there could be any acts that, if disclosed, would then "tip the balance" because they are so egregious that they should forever be "swept under the rug", or, should we instead take the the position of Mr. Schwarz and "not flinch", no matter how bad the disclosed behavior?

Ambassador Pickering did not waiver and immediately responded "no", that we must not flinch and we must disclose. He said that there were three reasons that such information, no matter how damaging, must be released. First, "the laws on secrecy don’t provide for that". Second, anything "so notorious" could not remain secret "in this town, or in this country or in this world". Finally, it is "the duty and indeed the requirement of all branches of the United States government to do everything in their power to make sure that it never happens again."

I think that Senator Whitehouse, with an assist from Ambassador Pickering, was sending a message to President Obama and Attorney General Holder that attempts to keep abhorrent crimes secret out of a belief that their disclosure would harm our security are misguided on both a legal and a moral basis. Let’s hope and pray that the message is received and endorsed.

Jim White

Jim White

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