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Has anybody made the "lame duck" call on Obama?

I know it's a little early, but when you've lost Mother Jones....

2008 Obama Would Have Slammed 2014 Obama for This Government Secrecy Case

Yeah, for all the good it would have done.

During the 2008 presidential campaign, Barack Obama hammered George W. Bush for expanding government secrecy. Obama promised that his would be the most transparent and open administration ever. In particular, Obama criticized the Bush administration's use of a legal loophole known as the state secrets privilege. Citing this privilege, government lawyers can keep evidence and testimony from being introduced in court that would reveal government secrets. That means that if someone sues the government for wrongdoing—say, a plaintiff claims that he or she was illegally spied on or tortured at the behest of the US government—the Justice Department can claim key pieces of evidence will expose national security secrets and prevent this material from being used in court. Doing so would hinder or outright squash the person's case.

But oopsie!

Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list.

The roots of one of these cases stretch back to early 2011, when then-19-year-old Gulet Mohamed called the New York Times from Kuwait with a wild story. Mohamed claimed he had been snatched by Kuwaiti secret police at Kuwait's airport and beaten and interrogated in a secret Kuwaiti prison. Now, he told the Times, he was locked up in a Kuwaiti deportation facility, where he had acquired a cellphone from another inmate. He alleged the US government was behind his detention. He claimed that FBI agents were questioning him in Kuwaiti custody, denying him access to a lawyer, and telling him he was on the no-fly list and wouldn't be released unless he cooperated. After his plight made national news, Kuwaiti officials took him to the airport, where he was able to board a flight back to the United States. (The no-fly list is an ever-changing registry that affords authorities discretion. So if he was on the list, a decision was made to allow him to make this trip.) When Mohamed returned to the United States, he was interrogated—again without being given access to a lawyer—at Dulles International Airport. He was never charged with a crime.

Mohamed wanted to get off the no-fly list. The trouble, explains Ben Wizner, an attorney at the ACLU, is that the Obama administration's "no-fly list policy rests on the idea that the government will never confirm or deny whether you're on the list." Mohamed couldn't confirm whether he was still on the list, let alone get his name removed from it. "They won't tell you whether you're on the list, they won't tell you why you're on the list if you are, and they won't tell you what they suspect," Wizner says. (Of course, when you're denied boarding at the airport, you're effectively being told you're on the no-fly list.) So Mohamed sued the government, alleging that Obama administration officials had violated his constitutional rights both by refusing to confirm whether he was on the no-fly list and by refusing to allow him to challenge his placement on the list (if he were on it). In the case, Mohamed argued that being placed on the no-fly list was a government punishment, yet this had happened (if he were on the list) without due process.

So, the good news (read the whole thing) is that Mohamed is doing OK with his suit, though naturally it may take years.

The bad news is that we could revise the Mother Jones headline to read as follows:

2008 Obama Would Have Slammed 2008 Obama for Granting Retroactive Immunity to the Telcos

Remember, Obama promised in January 2008 to filibuster the FISA reform bill if it granted retroactive immunity to the telcos for participating in Bush's program of warrantless surveillance, a big deal on "the left" of that time[1]. Then July 2008 Obama flip-flopped and voted for it.

So, what Mother Jones discovers, or pretends to discover, in 2014, was obvious to anybody who paid attention six years ago, in 2008.

The country has a lot of problems, and if it takes that long for "the left" to wake up and smell the coffee, #headdesk is all I can say.

NOTE [1] Since, as we now understand, their guy wasn't doing it.

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