Bipartisan Advocacy Group Urges Holder to Change Position on State Secrets

Since my story a few weeks ago on the Jeppesen Dataplan case, there’s been growing pressure on the Obama administration to reverse course and stop asserting “state secrets” to thwart the case, which in addition to compensating these victims, could reveal critical information about the Bush administration’s torture and abuse of detainees in the “war on terror.” Justice Department officials are expected to present arguments in the case on Monday.

Yesterday the American Civil Liberties Union held a press briefing on the matter, and today, the bipartisan Constitution Project sent a letter to new Attorney General Eric Holder urging him to reconsider the government’s position.

Constitution Project President and Founder Virginia Sloan wrote:

Attorney General Holder promised during his confirmation hearing to reexamine all cases where the Justice Department asserted the state secrets privilege. The Justice Department’s review of the state secrets privilege should begin with this case and result in its agreement to an independent review of the evidence by the trial judge and the administration’s repudiation of the Bush administration’s broad secrecy claims. The trial judge, not the executive branch, should determine what evidence the government can legitimately withhold, and whether enough non-privileged evidence exists to allow the case to proceed.

As I reported earlier, the ACLU is representing five victims of the Bush administration’s “extraordinary rendition” policy in a lawsuit against Jeppesen, a subsidiary of Boeing, for allegedly assisting the CIA in abducting suspects of Middle East descent and flying them around the world to be tortured. Although the case was carefully NOT filed against the U.S. government, the CIA under Bush intervened, and convinced the federal court in California to dismiss the case, claiming that simply letting it proceed would endanger national security.

How? The government insisted — despite numerous public statements about the program from top U.S. officials, including CIA directors and the president himself — that the CIA’s extraordinary rendition practices are a secret, and any information about them would endanger the United States and strengthen its enemies.

Although the ACLU lawyers had no objection to the judge sealing from public view any particularly sensitive and classified evidence that would emerge in the course of the case, the government insisted that the entire lawsuit posed a threat and that the case must be dismissed. The court accepted the government’s view, based largely on a sealed CIA declaration.

The ACLU appealed the dismissal, and the matter is scheduled for oral argument before the Ninth Circuit Court of Appeals in California on Monday.

Despite recent media reports requests for clarification from advocacy groups, the Obama administration so far has not changed its position in this case — the first major test of its early pronouncements to eliminate unnecessary secrecy and renounce torture.

Interestingly, as I reported earlier this week, the Obama administration apparently just affirmed Bush secrecy policies in a related case filed in the United Kingdom. In that lawsuit, in which Gitmo detainee Binyam Mohamed (also a plaintiff in the Jeppesen case) sought evidence to support his claims of mistreatment by U.S. officials, the Obama administration refused to change an earlier U.S. government position insisting that the evidence– and even the U.K. court’s summary of the evidence– remain secret.

The Jeppesen case, taking place in a U.S. court, provides an even more compelling case for the Obama administration to reverse its predecessors’ course and allow the judge to handle the evidence in accordance with U.S. law, which has many methods for protecting against dangerous disclosures.

We will be watching closely to see how the new administration proceeds.