Ben Wizner / In the seemingly never-ending debate over what constitutes torture, what obligation the U.S. government has to protect human rights and where a line can be drawn when it comes to individual freedoms, maybe no point has been more maddening to civil liberties advocates than the state secrets exemption. It makes no sense, it argues, that the government can deny someone trial for reasons he or she refuses to explain simply because it’s, well, a secret. American Civil Liberties Union attorney Ben Wizner, who represents victims allegedly tortured at the hands of the U.S. government, says we can’t leave the Bush presidency behind without first clearing up this debate. This week, he’s in Hawaii to address these and other civil liberties issues. The Weekly caught up with him as he was getting ready to make his first trip to the Islands.

So are you tired of talking about state secrets yet?
No, no, not at all, but I think that we can talk about state secrets in a narrow context or a slightly broader one. In the broader context, we’ve arrived at 2009 without a single torture victim having had his day in court. That’s how it’s really playing out on the broader scale. It’s categorically shielded the administration from any kind of accountability. And it’s because much of the debate has been about prosecution and criminal investigation and whether that should be on or off the table and I think a lot less attention has been paid to cases where victims themselves are trying to hold their perpetrator accountable, not to be jailed but to get compensation, and all of those cases have been dismissed. Any moving forward has to give a voice to those victims.

Are you surprised that the Obama administration is taking what some have described as a weaker-than-expected stance on the state secrets exemption?
Yes. Although the context in which we need to view that considers what President Obama did on his second day in office. He signed executive orders that close Guantanamo, close secret prisons and ban torture. When he says he would rather look forward than back, he means it. We should believe him. Where he has not brought change, and where we hope for it, is on the question of accountability. And the way I see it is that looking back is a critical part of looking forward. We really need courts and Congress and the executive branch to acknowledge the illegality of the last seven years and that’s really more important than anybody going to prisons. We have to have an official version of events that acknowledge rather than deny what has happened. The only response the government has been required to make is, “we’ll never confirm nor deny these allegations.”

Talk a little bit about how it may be a flaw in thinking that national interest could trump individual rights in a torture case.
The way that courts have analyzed the state secrets privilege is that there are times in which, unfortunately, the individual litigant has to be subordinate to the greater public good. When you talk about the widespread systematic abuses against people and what has occurred in the last seven years, the public interest argument should not work that way. We have a public interest in the separation of powers, we have a public interest in enforcing of our laws, we have a public interest in victims having a forum to bring their claims of human rights abuses. An evidentiary privilege that was developed in ordinary or simple tort cases needs to be viewed differently in torture cases. What’s amazing about the way that it functions now is that the perpetrators themselves, in this case the CIA, are the ones who explain to the court why the case has to be dismissed, which is an unbelievable conflict of interest.

I wanted to ask you about structural conflict of interest within the executive branch. How do we address this?
Well there are two ways. One way is through Congress. Two days after my argument in the ninth circuit on the ninth of February, both the house and senate introduced legislation that would address this. Congress could step in and regulate the way the executive branch uses the privilege. The other thing is that, since the state secrets privilege was created by courts, the courts can correct it. My hope is that the ninth circuit, of which Hawaii is a part, will reject the government’s overboard assertion of state secrets.

When do you expect to know what might happen?
Ordinarily it takes them a few months. It could take longer for this though.

And in the meantime, you’re coming to Hawaii. How much of what we’ve talked about will be what you’ll address here?
I want the theme to be, is the election of Barack Obama a mission accomplished moment for civil libertarians?

Do you mean like literally a mission accomplished or in the notorious George W. Bush kind of way?
[Laughs] Well, I’m deliberately ambiguous about that. Because a huge amount was accomplished with the stroke of [President Obama’s] pen on the second day of office and I don’t want to diminish that or the amount of effort it took to make that happen over the past eight years.

At the same time, we have serious battles ahead. One is the one that I already mentioned to you, which is the broader question of accountability and what will be the legacy of the last seven years, because to me, the legacy of the last seven years is unresolved until we address it. The Obama administration may not lead but it may be willing to be led if we are an active civil liberties community. The president knows that sometimes is takes movements to move leaders. So I am going to talk about what was accomplished in having elected him and why we’re still relevant, why the civil liberties community is still needed.

Anything else we haven’t gone over that you want to add?
Well, I do have one question for you.

What’s that?
What are lawyers who are going to speak in Hawaii supposed to wear? I don’t have to wear a jacket do I?

You’ve never been to Hawaii before?
No, never!

Go with khakis and a button up and you’ll be fine.
So, no jacket?

No jacket! They’ll make fun of you.
OK, [laughs] no jacket.

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