In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.
Five former terrorism detainees brought the lawsuit, Mohammed et al. vs. Jeppesen DataPlan Inc. The men accuse Jeppesen, a Boeing subsidiary, of providing logistical support to the CIA for "torture flights" to overseas prisons.
Bush administration lawyers had argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.
As the government prepared to argue the case again before three judges at an appeals court Monday, observers wondered whether the Justice Department would change course now that there is a new president and a new attorney general. The government did not change course.
ACLU attorney Ben Wizner, who represents the detainees, said in a phone interview after arguments, "The Obama administration, which came to office on a promise of greater transparency — on a promise of ending these practices — stood up and made exactly the same arguments that were made by Bush lawyers to throw out torture victims' lawsuits. And that's a profound disappointment."
Amanda Frost, an American University law professor who has studied and written about state secrets, says the government's position that the entire case is covered by the state secrets privilege is an "extreme position."
"There are far more moderate positions they could take that would protect classified information," Frost said. She points out that the federal government acknowledges engaging in extraordinary rendition, "so while there may be individual pieces of evidence that need for state secret reasons to be kept secret, it is simply ludicrous to declare that the very subject matter of the case is a state secret."
Many senior Obama nominees for national security positions have not yet been confirmed. Robert Raben, a former U.S. assistant attorney general during the Clinton administration, believes the administration's position on state secrets may evolve once those people arrive. "I just don't think there's been enough time," Raben said. "I don't think every computer has been turned on in the executive branch, I don't think every seat has been warmed by the smarties that will sit down and figure out what the policy will be.
"I think people need to stay calm," said Raben.
He points out that President Obama has taken steps to break from President Bush on national security policies. Obama has issued an executive order to close Guantanamo within a year, and he has said all interrogations will comply with the Geneva Conventions.
ACLU attorney Wizner takes the point. "It's a good thing that President Obama has shut down the secret prisons, it's a good thing that he's ordered the end of torture. It's very, very disappointing that he's standing in the way of accountability against perpetrators and compensation for victims," Wizner said.
On the same day as arguments in the Jeppesen case, Attorney General Eric Holder ordered senior Justice Department officials to review all of the Bush administration's assertions of the state secret privilege.
"It is vital we protect information that, if released, could jeopardize national security, but the Justice Department will make sure that the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," department spokesman Matthew Miller said. He said the attorney general intends to make sure the privilege is only invoked in "legally appropriate" situations.