Wed, Feb 11, 2009 - Page 7 News List

Surprise as Obama backs off reversal on state secrets


In a closely watched case involving rendition and torture, a lawyer for US President Barack Obama’s administration seemed to surprise a panel of federal appeals judges on Monday by proceeding with an argument for preserving state secrets developed by the administration of former US president George W. Bush.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were taken secretly to other countries and tortured.

The Bush administration argued that the case should be dismissed because discussing it in court could present a threat to national security and relations with other nations.


During the campaign, Obama had criticized the Bush administration’s treatment of detainees, and has broken with the previous administration on such questions as whether to keep open the Guantanamo prison camp. But a lawyer for the government, Douglas Letter, made the same state-secrets argument on Monday, startling judges on the US 9th Circuit Court of Appeals.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary Schroeder, coyly referring to the recent election.

“No, your honor,” Letter replied.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more.

The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.


Anthony Romero, executive director of the American Civil Liberties Union, which is representing the plaintiffs, said in a statement: “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 Obama’s 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.”

A Justice Department spokesman, Matt Miller, seemed to suggest that the Obama administration would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said.

Miller added that Attorney General Eric Holder had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

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