President Obama & 'the choice
between our safety & our ideals'

By Alan Shapiro

To the Teacher:

The three student readings below consider President Obama's adoption of three Bush administration policies that he previously opposed: extraordinary rendition, the state secrets privilege, and habeas corpus. Suggested discussion questions, inquiry subjects, and a student essay for class consideration and citizenship follow.

For more background on the issues considered here, see other lessons in the high school section of www.teachablemoment.org, including: "Torture Memos & the Rule of Law," "Restoring the Rule of Law," "The New Foreign Intelligence Surveillance Act: A Threat to American Freedoms?" "Presidential Power: Extraordinary Renditions & Secret Prisons," "Presidential Power: Its Use & Abuse," and "A Controversial New Law for Terror Suspects."

Introduction

"…We reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake."

--President Barack Obama, inaugural address, January 20, 2009

For discussion

1. To what specific ideals do you think President Obama was referring?

2. After his rejection of what he called a "false choice between our safety and our ideals," why do you suppose he referred to the "perils" faced by our Founding Fathers?

3. What do you understand the president to have meant by declaring that we will not give up our ideals "for expedience's sake"? What would be an example of giving up ideals for expedience's sake?

Student Reading 1

Extraordinary rendition:
Must we choose between national security & the rule of law?

"To build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law."

--Senator Barack Obama, Foreign Affairs, Summer 2007

Sweden, December 2001: Ahmed Agiza, an Egyptian citizen, was kidnapped by CIA agents, chained, shackled, drugged and flown to Egypt, where he was tortured and remains imprisoned without any charges against him.

Pakistan, March 2002: Abou Britel, an Italian citizen, was apprehended by Pakistani police. Blindfolded, shackled, and chained to the seat of a plane, he was turned over to CIA agents and flown to Morocco, where he was tortured and remains imprisoned without any charges against him.

Pakistan, July 2002: CIA agents kidnapped Binyam Mohamed, a legal resident of Britain, though originally an Ethiopian citizen. Blindfolded, shackled, and strapped to the seat of a plane, he was flown to Morocco. For the next 18 months he was questioned about Al Qaeda and regularly beaten and tortured. He was sent to Bagram, Afghanistan and then to Guantanamo. In February 2009, without being charged with any crime, he was returned to Britain.

UK, November 2002: Bisher al-Rawi, an Iraqi citizen but a legal, permanent resident of Britain, was kidnapped by CIA agents and flown to Bagram, Afghanistan, where he was imprisoned, questioned, and tortured. In February 2003 he was sent to Guantanamo until his release in March 2007, without being charged with any crime.

Jordan, October 2003: Mohamed Farag Ahmad Bashmilah was detained by Jordanian agents, who interrogated and tortured him. Later that month, they turned him over to CIA agents, who beat, kicked, and handcuffed him. He was flown to Bagram, Afghanistan, where he was imprisoned. In March 2006, he was released, without being charged with any crime.

These CIA kidnappings, incarcerations, and tortures were conducted in secrecy, though details about them eventually became public. How many of these actions have occurred? Americans have not been informed.

The CIA practice of kidnapping people is an intelligence-gathering program known as "extraordinary rendition." Agents seize suspects who are not U.S. citizens and "render," or transport, them for detention and interrogation in foreign countries, where they are likely to be tortured. This policy began during the presidency of Bill Clinton, and was expanded by President Bush after 9/11. The Bush administration maintained that it always received assurances from foreign countries that they would not torture prisoners.

The Obama administration announced in August 2009 that it is continuing the rendition program "but pledges to closely monitor the treatment of prisoners" to ensure that they are not tortured. A spokesperson for the American Civil Liberties Union responded, "It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture." (www.nytimes.com, 8/24/09)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is "extraordinary rendition"? Why has the CIA engaged in this practice for years? Why did President Bush expand the practice after 9/11?

3. What was Senator Obama's objection to extraordinary rendition in 2007?

4. Why do you think he has continued the practice as president? What does he pledge will be a change in how the practice is implemented? What is the reaction of the ACLU to this pledge? What is your reaction?

5. What is your answer to the question posed by the title of the reading? Explain.

Student Reading 2

"State secrets":
Must we choose between national security & revealing government failures?

"The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA [Freedom of Information Act], executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

--President Barack Obama, in a memorandum sent on his first full day in office, January 21, 2009, to the heads of all government executive departments

An ACLU lawsuit

On behalf of Agiza, Britel, Mohamed, al-Rawi, and Bashmilah (whose cases are described above), the American Civil Liberties Union filed a federal lawsuit in 2007 against a subsidiary of Boeing, Jeppesen DataPlan, Inc., for its role in the US government's "extraordinary rendition" program.

The suit charges that Jeppeson "knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to detention and interrogation." Named for the lead defendant in the suit, Binyam Mohamed, the case is known as Mohamed v. Jeppesen Dataplan, Inc. (www.aclu.org)

A former Jeppesen employee declared that at a corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights--you know, the torture flights. Let's face it, some of these flights end up that way." (Jane Mayer, The New Yorker (10/26/06).

State secrets in San Francisco

Soon after the ACLU filed the suit, the Bush administration went to court to assert the "state secrets" privilege and ask the judge to dismiss the case without examining any evidence that supported the men. That is what the judge did in February 2008.

The "state secrets" privilege permits the President of the United States to refuse to present evidence in a court case on the grounds that its release would harm national security. The Supreme Court recognized this privilege in a 1953 case but until President George W. Bush took office in 2001 it was claimed only to object to specific evidence being used in a court case. The Bush administration extended the privilege to get entire cases thrown out of court.

The ACLU appealed the case to the Ninth Circuit Court of Appeals in San Francisco, which reversed the lower court decision by a 3-0 vote in April 2009. It ruled that government may invoke the state secret privilege only with respect to specific evidence, not to the entire case. The judges also said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."

The new Obama administration adopted the Bush administration's view and appealed the case to the full appeals court. On October 27, 2009, a majority of that court's judges voted to refer the case to an 11-judge panel for a new hearing. That hearing has not yet been scheduled.(San Francisco Chronicle, www.sfgate.com, 10/28/09)

Ben Wizner, an ACLU lawyer for the plaintiffs, said of the decision, "What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the 'state secrets' privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limit its use and scope. Yet here is Obama…invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court…."

Mohamed's treatment and U.S.-Britain intelligence-sharing

What does it mean to be tortured? "During one incident, Mohamed was cut 20 to 30 times on his genitals. On another occasion, a hot stinging liquid was poured into open wounds on his penis as he was being cut….He was forced to listen to loud music day and night, placed in a room with open sewage for a month at a time and drugged repeatedly." (www.aclu.org)

Sent to Bagram, a US prison in Kabul, Afghanistan, he was chained to the floor, kept in darkness for 23 hours a day, and interrogated almost daily. Mohamed began to invent stories to avoid more torture. In 2004 he was transferred to Guantanamo.

In keeping with its intelligence-sharing agreement with Britain, the CIA had reported to British intelligence officials what had been done to Mohamed while he was in Pakistan, Morocco, and Bagram because Mohamad is a British citizen. While he was in Guantánamo, he sued for release of this information to prove that what he had told the CIA was a result of torture. In 2008, the US dropped the terrorist charges against him, and in February 2009, at the request of the UK, he was released and returned to Britain.

The Bush administration threatened to stop intelligence-sharing with Britain if it made public documents about Mohamed's treatment because they contained "secret intelligence." Later, speaking for the new Obama administration, Secretary of State Hillary Rodham Clinton repeated this threat. But a British court ruled there was "a compelling public interest" in releasing the documents and that nothing in them had anything to do with "secret intelligence." The British government has appealed this decision.

State secrets in Brooklyn

After 9/11, four Brooklynites who made calls and sent emails to England, Egypt, and other places overseas were arrested and jailed. In time, they filed a class action suit, Shubert et al v. Obama.

The Obama administration argued on October 29, 2009, that US District Judge Vaughn Walker should not allow the case to continue because even discussing or attempting to refute the plaintiffs' claim would require the administration "to disclose intelligence sources and methods, or the lack thereof."

Attorney General Eric Holder said "there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people."

The Shubert plaintiffs' argument is that during the Bush administration "the National Security Administration intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant." This program, they allege, violates the Fourth Amendment as well as the Foreign Intelligence Surveillance Act, which calls for judicial oversight.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is the Freedom of Information Act? If you don't know, how might you find out?

3. What is the state secrets privilege? What conflict is there over its definition? Why?

4. Are the Jeppesen plaintiffs being treated fairly by the government? Why or why not?

5. Do you think that the government's interception of the phone calls and emails of ordinary Americans violates the Fourth Amendment? Why or why not?

6. What reasons are there to believe that President Obama is acting to protect national security when it comes to "state secrets"? Is acting to protect government officials from being "embarrassed by disclosure," or because "errors and failures might be revealed"? Would you need more information to decide? If so, how would you find it?

7. What is your answer to the question posed by the title of the reading? Explain.

Student Reading 3

Bagram Prison:
Must we choose between national security & habeas corpus?

In June 2008, the Supreme Court extended the right of "habeas corpus" to prisoners in Guantanamo prison--meaning that those prisoners have a constitutional right to have their cases brought to court to determine if they were being legally detained.

"The decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo….This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."

--Senator Barack Obama, presidential candidate, 6/12/08

American prisoners at Bagram

Most Americans have heard about the US prison at Guantánamo, Cuba. After 9/11, nearly 800 non-citizen terrorist suspects were held there without any rights. They were called "enemy combatants," which allowed the government to claim that they did no have a right to the humane treatment guaranteed by the Geneva Conventions.

Then, in the Military Commissions Act of 2006, Congress and President Bush, for the first time in American history, declared that non-citizens have no right to habeas corpus.

This meant that the non-citizen Guantánamo prisoner could be denied the right established for Americans in Article I of the US Constitution--to be brought before a court so it can determine whether or not the government is holding the individual lawfully.

The Supreme Court overturned this legislation, ruling that "The political branches [do not] have the power to switch the Constitution on and off." After this June 12, 2008, decision on Guantánamo prisoners, the Bush administration began sending victims of extraordinary rendition to Bagram Prison in Afghanistan.

Bagram Prison, located on the outskirts of Kabul, is the largest American military prison outside the US It holds some 700 "enemy combatants" (specific numbers are classified information). A number of these men were not captured in the Afghan war zone, but were seized in other countries. Like Mohamed, al-Rawi, and Bashmilah, they experienced "extraordinary rendition." But unlike those three, all the men still at Bagram, whether captured in Afghanistan or seized in another country, are being held indefinitely. They have not been charged with any crimes; they have no lawyers, no access to habeas corpus, no legal rights.

"The US military says the vast majority of the 700 detainees at [Bagram] could eventually be released because they're fighting more for money than ideology," USA Today reported.... Brig. Gen. Mark Martins, who is leading an inquiry into detainee policy at Bagram, says that only '10% to 20% of the inmates…are considered hard-core or 'irreconcilable' Taliban fighters." (Theodore May, USA Today,11/19/09)

Little is known about the treatment of prisoners in Bagram. "A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention." (Karen Greenberg, "Obama's Guantanamo?" www.tomdispatch.com, 3/5/09)

President Obama declared during and after the election campaign that he wanted Guantánamo closed by January 2010. He has not discussed Bagram publicly. But he made his position clear in a federal court brief that dealt with Yeminis and Tunisians captured in Thailand and the United Arab Emirates, or future prisoners from anywhere in the world. According to Glenn Greewald writing for Salon, the Obama administration's Justice Department argued that these prisoners "can be imprisoned indefinitely with no rights of any kind--as long as they are kept in Bagram rather than Guantánamo." (Glenn Greenwald, www.salon.com, 4/11/09)

This March, a federal judge rejected this position, ruling that the Supreme Court's Guantánamo decision applies to Bagram as well. By appealing that decision, the Obama administration has taken the same position on Bagram prisoners as the Bush administration.

However, reported the New York Times, a new facility on the edge of the Bagram air base is scheduled to open at the end of November, and it "is designed to accommodate new review boards, giving detainees a chance to challenge their internment and present evidence of their innocence." Each prisoner is to be assigned "a personal representative who will advocate on his behalf. The representatives are not lawyers--a point of contention for human rights groups--but they…are supposed to help gather any 'reasonably available' evidence that detainees wish to use to challenge their detention." But human rights advocates doubt that prisoners will have "more recourse than they have now" to due process rights. (Alissa Rubin, New York Times, 11/16/09)

Extraordinary rendition for a non-terrorist prisoner

On April 27, 2009, Raymond Azar, a Lebanese manager of a construction company that does work for the US military, was headed for an American military base in Kabul. Suddenly, a group of FBI agents seized, cuffed, and pushed him into an SUV. During a two-hour ride to Bagram, the US military prison outside the capital, he was shown a photograph of his wife and four children. He said he was told that if he did not cooperate, he would not see them again.

Azar said that at Bagram he was manacled to a chair for seven hours. During a cold rainstorm he was then put into an unheated metal shipping container with a thin blanket, where he was kept from sleeping. He was given a body cavity search for "health reasons." Later, he confessed that he had bribed US officials to help his company win or extend contracts with US agencies.

Azar's allegations that he had been tortured became public. Soon afterward, Justice Department prosecutors presented a plea bargain deal to him and his lawyers. Government agents appear to have treated Azar as if he were a terrorist suspect, subjecting him to kidnapping and the rendition techniques that Barack Obama had objected to strenuously before and after his election as President.

Scott Horton wrote that "whatever deal was struck with Azar should not let the government avoid the question of accountability for what was done in this case. That should start with an examination of the Justice Department's failure to candidly disclose to the court that the rendition techniques they applied to Azar were part of an effort to coerce a confession…explicitly engineered for that purpose. In sentencing Azar, the court will have to start with the recognition that the Justice Department began overstepping the lawful constraints on its authority to mete out punishment to him from the moment they seized him in Kabul.

"But the broader question is for the new panel that the Obama White House has set up to oversee renditions and interrogations policy: Why are procedures designed to secure intelligence from violent terrorists being used on businessmen involved in petty contract fraud cases? If this was a conscious decision, it urgently requires a public justification."
(www.huffingtonpost.com, 8/28/09)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What does the Constitution state about habeas corpus? Why has habeas corpus been long regarded as a fundamental right of a prisoner?

3. In the opening quotation, then Senator Obama refers to "the rule of law." In addition to habeas corpus, what are some specific examples of that rule? Can you decide whether or not the government is violating the rule of law at Bagram? Why or why not? If you think you can decide, what conclusion do you reach and why? If you need more information, how might you get it?

4. Does the new process soon to be available to Bagram prisoners at a new prison meet the commitment to "the rule of law" that presidential candidate Obama upheld in the reading's opening quotation?

5. How is the Azar case different from other cases in these readings? Did the Justice Department overstep "the lawful constraints on its authority" in this case? Why or why not? How is the Azar case similar to other cases in these readings?

6. Why does Horton think that the government's decision in the Azar case "urgently requires a public justification"? Why do you think it has not received such a justification?

7. What is your answer to the question posed by the title of the reading? Explain.

For inquiry

Each of the three subjects of the readings--extraordinary rendition, the state secrets privilege, and habeas corpus--has a history worth investigating. Divide students into three groups. Assign each group to one of these three subjects. Ask each group to begin their work by framing two or three good questions for inquiry. Have them submit their questions to the teacher for analysis and possible revision before beginning an investigation.

See "Thinking Is Questioning" in the high section of www.teachablemoment.org for suggestions on how to help students ask good questions.

Presidential signing statements, claims of executive privilege, and governmental eavesdropping also have a history and might be additional subjects for inquiry.

A final inquiry subject: Khalid Sheikh Mohammad, the so-called mastermind of 9/11, and four other defendants accused of being involved, will be accorded a civilian trial in a New York City court. Five others who have been accused of other attacks against the US are to receive military commission trials. What differences are there between the two types of trials? Why has Attorney-General Holder, with President Obama's support, ordered different treatment for the two sets of defendants?

For writing and citizenship

1. Assign students to draft a well-developed essay on the question posed in the title of each student reading.

2. Divide the class into groups of three or four to listen to, discuss each student's draft and then select the one they regard as best for reading to and discussion by the class.

3. Have all students revise their papers and give them to the teacher. Students may also choose to send their papers to President Obama.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at his new email address: lnshapiro07@gmail.com.

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