EDITORIAL : THE NEW YORK TIMES, USA

Malign Neglect

Extraordinary rendition — the abduction of foreigners, often innocent ones, by American agents who sent them to countries well known for torturing prisoners — was central to President George W. Bush’s antiterrorism policy. His administration then used wildly broad claims of state secrets to thwart any accountability for this immoral practice.

President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits. So the only hope was that the courts would not permit these widely known abuses of power to go unchecked.

Last Monday, the Supreme Court abdicated that duty. It declined to review a case brought by five individuals who say — credibly — that they were kidnapped and tortured in overseas prisons. The question was whether people injured by illegal interrogation and detention should be allowed their day in court or summarily tossed out.

The court’s choice is a major stain on American justice. By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

The lead plaintiff, an Ethiopian citizen and resident of Britain named Binyam Mohamed, was arrested in Pakistan in 2002. The C.I.A. turned him over to Moroccan interrogators, who subjected him to brutal treatment that he says included cutting his penis with a scalpel and then pouring a hot, stinging liquid on the open wound.

After the trial court gave in to the secrecy argument, a three-judge panel of the Ninth Circuit Court of Appeals ruled that the case should proceed. It said the idea that the executive branch was entitled to have lawsuits shut down with a blanket claim of national security would “effectively cordon off all secret actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law.”

Last September, the full appeals court, ruling en banc, reversed that decision by a 6-to-5 vote. The dissenters noted that the basic facts of the plaintiffs’ renditions were already public knowledge. But the majority gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets.

The Supreme Court allowed that nonsense to stand.

It is difficult to believe there are legitimate secrets regarding the plaintiffs’ ill treatment at this late date. Last year, a British court released secret files containing the assessment of British intelligence that the detention of Mr. Mohamed violated legal prohibitions against torture and cruel and degrading treatment.

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

But this is not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort. A year ago, the Supreme Court refused to consider the claims of Maher Arar, an innocent Canadian whom the Bush administration sent to Syria to be tortured. In 2007, the court could not muster the four votes needed to grant review in the case of Khaled el-Masri, a German citizen subjected to torture in a secret overseas prison.

As President Obama’s first solicitor general, Justice Elena Kagan was in on the benighted decision to use overwrought secrecy claims to stop any hearing for torture victims. She properly recused herself from voting on the case. Surely among the eight remaining judges there was at least one sensitive to the gross violation of rights, and apparently law. We wish they would have at least offered a dissent or comment to let the world know that the court’s indifference was not unanimous.

Instead, what the world sees is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty. Some torture victims bounced from American courts, including Mr. Mohamed and Mr. Arar, have received money from nations with comparatively minor involvement in their ordeals.

The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability. It is hard, right now, to be optimistic.

Haunted by Their Medicare Vote

Democrats insist they have a chance of regaining the House next year. It will not be easy, but the Republican plan to radically reshape Medicare is alienating fence-sitting voters and highlighting the sharp differences between the two parties’ visions of government.

The Medicare argument has certainly been potent in New York’s 26th District, in the Buffalo-Rochester area, where a special election will be held on Tuesday to fill the seat of Christopher Lee, who resigned. Though the district is strongly Republican, the Democratic candidate, Kathleen Hochul, the Erie County clerk, is competitive. The Republican, Assemblywoman Jane Corwin, has had to struggle to defend a highly unpopular policy. The presence of a third candidate, from the Tea Party, is also a large factor in the closeness of the race.

In a televised debate on Wednesday, Ms. Hochul repeatedly accused Ms. Corwin of supporting the House Republican plan to create a voucher system, which, she said, would “effectively decimate” Medicare. Ms. Corwin responded that the plan proposed by Representative Paul Ryan did not involve an actual paper voucher, which is beside the point.

Mr. Ryan would end the government’s guaranteed payment for a set of medical services for the elderly, changing to a system in which the government would simply help the elderly buy private insurance. If health costs went up beyond what insurance would pay, tough luck. Ms. Corwin defended that by saying it would prevent Medicare’s inevitable bankruptcy.

She tried to sow confusion, arguing that Ms. Hochul and the Democrats wanted to cut hundreds of millions from Medicare. That argument helped defeat many Democrats in 2010, but the changes in health care reform pale in comparison to a plan that would leave Medicare unrecognizable. Beyond calling Ms. Hochul a “career
politician,” Ms. Corwin had little to say when she was accused of “balancing our budget on the backs of seniors” while continuing huge tax breaks for the wealthy and oil companies.

An anti-Corwin ad, paid for by unions, shows a Medicare card going up in flames, and it is likely to become a familiar image in many Congressional races next year. Democratic robo-calls are already pushing the Medicare issue hard in districts across the country.

Republican House members brought this on themselves by voting nearly unanimously for the Ryan plan, so caught up in ideological fervor and hubris that they failed to anticipate the inevitable voter backlash. While the House leadership has acknowledged that the Medicare plan will not pass, the party will not allow any dissent. When Newt Gingrich called the plan “right-wing social engineering,” he was all but shunned from the presidential nomination race, and was forced to recant and apologize.

Democrats cannot ignore the fiscal drain from Medicare. President Obama is right that the government needs to do a lot more to restrain the growth in Medicare spending. But there is a huge difference between looking for efficiencies and other reforms and privatizing Medicare. A sense of buyers’ remorse in districts across the country is allowing Democrats to make a newly vigorous pitch.

Tomorrow to Pastures New

For the past 13 years, my horses have gazed across a gravel road toward a neighbor’s pasture, where her horses stand, gazing back. Kinship, affinity, species recognition, herd instinct, longing — I don’t know what to call this habit. But by the time you read this, my neighbor and I will have moved my horses into her pasture. She has plenty of extra grass, and my land can use a rest.

There will be some sorting out necessary. I wonder where my neighbor’s mule will come in the pecking order, and whether her thoroughbred will defer to Remedy, the boss of my small herd. We shall see. What I really wonder is what my horses will think and feel — that’s the only way I can put it — when they find themselves turned loose in a pasture they’ve spent such a long time contemplating. They’ve traveled widely over the years, to Montana, Wyoming and Colorado. But to them, I suppose, that pasture across the road is 13 horse-years distant.

Their absence will give me a chance to do some serious re-fencing and takedown of dead trees. I plan to cut up all my rotting post and rail fences into stove-lengths, which I will burn cheerfully next winter. I can do some re-seeding, and if I had sheep I would turn them loose in my pastures to eat the plants my horses won’t eat.

The horses will be only a hundred yards up the road but mostly out of sight. Now that they are going, I realize how often I look at them. I have gazed at them as steadily as they have gazed at their neighbors across the road. They draw me out of myself. My thoughts turn into the cowbirds wandering among the horses’ hooves.

I look forward to walking up the road to see how the horses are doing and how the new herd is settling down. Will they be grazing in the far reaches of the new pasture? Or will they stand, all five of them, by the roadside fence, gazing back across the road at my empty pastures, wondering how this monumental change came to be?