Torture: it's not a crime, it's a "state secret"

People like Jon Chait enjoy professing to be dumbfounded by liberals' lack of enthusiasm for the Democrats in 2010.

Perhaps that's because Chait et al. don't much care about news like this:

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

* * * “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.

(First excerpt plucked from LGM; opinion here.)

The dissent -- there is, thankfully, a dissent -- notes the backstory of Reynolds:

Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that “this accident occurred to a military plane which had gone aloft to test secret electronic equipment,” and that “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.” 345 U.S. at 10. In 1996, however, the “secret” accident report involved in that case was declassified. A review of the report revealed, not “details of any secret project the plane was involved in,” but “[i]nstead, . . . a horror story of incompetence, bungling, and tragic error.” Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

So you would think.

I'll leave you on this 9/11 eve with two sets of quotes, one from Antonin Scalia (quoted in the above dissent) --

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)) (emphasis added).

-- and the other from the late David Foster Wallace:

... can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, PATRIOT Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it? Where and when was the public debate on whether they’re worth it? Was there no such debate because we’re not capable of having or demanding one? Why not? Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety? What kind of future does that augur?

Osama bin Laden and his thugs never had the power to disgrace the United States of America. George W. Bush and Barack Obama have done so. Fuck 'em, all three.