Obama's Justice Department backs Bush secrecy on renditions suit
Stephen C. Webster
Published: Monday February 9, 2009

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Update (at bottom): ACLU 'shocked and deeply disappointed'

An attorney for President Obama's Department of Justice has told the Ninth U.S. Circuit Court of Appeals that it supports the Bush administration's controversial state secrets defense in a lawsuit over the prior president's "extraordinary rendition" program.

"The case involves five men who claim to have been victims of extraordinary rendition -- including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free," reports ABC News. "They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured."

"Under the Bush administration, the U.S. government used false claims of national security to dodge judicial scrutiny of extraordinary rendition," Ben Wizner, an ACLU staff attorney, said in a Monday media advisory. "This case presents the first test of the Obama administration's dedication to transparency and willingness to act on its condemnation of torture and rendition. The administration should unequivocally reject the Bush administration's abuse of the state secrets privilege and permit this case to go forward. Victims of extraordinary rendition deserve their day in court."

"A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all," continued ABC. "The DOJ lawyer said the entire subject matter remains a state secret."

"This case cannot be litigated," Department of Justice attorney Douglas Letter argued. "The judges shouldn't play with fire in this national security situation."

Asked by Judge Mary Schroeder whether the change in the White House had led to any changes in the government's legal arguments in the case, Letter said it "remains the position" of the government that the case should not proceed.

"The Bush administrationís claim is that the 'very subject matter' of the suit is a state secret," said the New York Times in a Wednesday editorial. "We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous."

"We hope the judges will have the courage to stand up to the government," said the LA Times on Saturday.

"The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations," Matt Miller, a spokesman for the Department of Justice, said in a prepared statement. "It is vital that we protect information that, if released, could jeopardize national security."

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller continued. "This administration will be transparent and open, consistent with our national security obligations."

"If the Obama administration does not change course, ACLU attorney Wizner will feel betrayed," reported National Public Radio on Sunday.

"It is hard for me to believe that a lawyer representing the United States, representing President Obama and Attorney General Eric Holder, will take the same extreme positions that I've been fighting against for the last several years," Wizner said on NPR's All Things Considered. "It's inconceivable, given the rhetoric that we've heard from candidate and President Obama."

Update: ACLU 'shocked and deeply disappointed'

"We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administrationís practice of dodging judicial scrutiny of extraordinary rendition and torture," Wizner said in a Monday advisory released after the government stated its position. "This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the governmentís false claims of state secrets and allowing the victims of torture and rendition their day in court."

"Eric Holderís Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government," Anthony D. Romero, Executive Director of the ACLU, said in the same release. "This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obamaís Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

"Our clients did not ask to be abducted, chained to the floor of planes, dressed in diapers and taken to a foreign country," Wizner told the court. "If you affirm (the judge's dismissal of the case), plaintiffs will forever be shut out of their day in court."

The judges did not immediately issue a ruling.

The following video detailing Mohamed et al v Jeppesen Dataplan, Inc., was produced by the American Civil Liberties Union, published May 30, 2007.

With wire reports.