Obama and Guantanamo. Why is the new order still pleading national security?

How does disclosing evidence of torture harm the national security of the United States? A question wholly distinct from providing evidence of the US’s exposed position in national and international law. The judges in the English High Court who have read the papers are quite clear.

Given [the documents’] source and detail, they would … amount to powerful evidence. None of the contents at issue could possibly be described as sensitive US intelligence….

Moreover, in the light of the long history of the common law and democracy which we share with the United States, it was, in our view, very difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters.

This may dismay eager civil rights lawyers in the US Justice Department which has just assumed responsibility for Guantanamo from the Pentagon where it had been placed by Cheney and Rumsfeld. For, according to the New York Times, the Obama administration were preparing to abandon the “national security” defence in these cases.
The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

Is it one law for Americans, another for the British? Or is it so difficult that they’re giving up trying?

The Attorney General Baroness Scotland is examining the “British” Guantanamo cases to see if MI5 or MI6 broke any law. I don’t hold out much hope for this one. “National security” again?

Just in case the thought entered your head, no, this does not negate the Special Relationship. This is the Special Relationship. The British government were never going to let their own blanket concept of national security be imperilled either. This one was a red line for both governments.

Next question: is this posture just a Bush hangover which Obama will sweep away with a stroke of the pen? Downing St and British embassy in Washington say they “haven’t engaged” with the Obama administration on the issue – I doubt if they want a straight answer published, just like those questions about extraordinary rendition. But although it’s not up in text yet, the BBC reports the White House as issuing the old mantra, that the administration upholds secrecy over national security. Which on this one, is exactly the same position as Dubya’s. Obama may be planning to close Guantanamo but in his own way and in his own time. The response casts doubt as to how hotly this administration will pursue the Guantanamo overseers of the Bush administration. The dispute takes some of the shine off Obamamania and brings us back to business as usual, with a few changes from the new management. It’s how Presidents of the United States operate. Always, when the chips are down. So it’s down to earth with a bump. A good thing, but chastening, and a bit sad.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London