Although the men did not sue the government directly, the Bush administration intervened in the case two years ago and convinced a judge to dismiss all claims on the grounds that allowing the lawsuit to proceed would reveal sensitive “state secrets” and endanger national security.

The plaintiffs appealed, and the Obama administration has adopted its predecessor’s position, arguing before the appellate court that allowing the five men the opportunity to prove their case would jeopardize national security. At the same time, the  administration claims it has ended the program of “extraordinary rendition,” whereby terror suspects are abducted in one location and sent to another country for interrogation, where they are likely to be tortured. The administration says it still renders suspects to other countries, but only for legitimate court proceedings.  Nevertheless, it has insisted that any information about the Bush administration’s program would pose a current danger.

That argument doesn’t sit well with the plaintiffs in the case, like Binyam Mohamed, an Ethiopian-born British resident who says he was kidnapped by CIA agents in Pakistan and flown to Morocco and Afghanistan, where he was brutally tortured into falsely confessing to crimes he did not commit.

In court yesterday, American Civil Liberties Union attorney Ben Wizner, representing the five men, argued that it was absurd to suggest that allowing the truth about the program to come out, while still protecting any classified evidence, would endanger national security.

“The facts of this case are known throughout the world,” Wizner said. The Bush administration’s CIA directors had previously testified about the rendition program, and President George W. Bush had acknowledged it. As for the plaintiffs involved in the case against Jeppesen, the Swedish government has already apologized and offered to compensation one of the plaintiffs who was seized from Sweden, where he had sought asylum. The plaintiff claims he was taken to Egypt, where he was tortured with electrical shocks.

Whoever wins this round before the Ninth Circuit could still seek review from the Supreme Court.

The Ninth Circuit Court of Appeals ruled for the victims and reinstated the case last spring, after it was dismissed by the U.S. District Court in Northern California.  The lower court had accepted the government’s argument (then made by the Bush administration) that letting the lawsuit move forward would expose “state secrets” and endanger national security, even though the Obama administration says it no longer engages in extraordinary rendition. But the plaintiffs appealed, and a three-judge panel of the Ninth Circuit, historically a liberal-leaning court, reversed the district court and reinstated the case. The panel ruled that there were no grounds to claim that a lawsuit against a government contractor must be dismissed just because the contractor was working with the CIA. “Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery,” wrote the court.

The Obama administration, however, was not prepared to accept that ruling. So it asked the full court of appeals to reconsider the case — something it does only rarely. Yesterday, the court granted that request, handing the Justice Department another chance to argue that the case against the private Boeing subsidiary should be dismissed to protect “state secrets.”

Like its predecessor, the Obama administration has sought to dismiss several important cases involving torture and warrantless wiretapping under the so-called “state secrets privilege,” which seeks to protect genuine government secrets that, if disclosed, would endanger national security. The government’s actions have prompted anger from civil libertarians and proposed legislation in Congress to limit the president’s power to invoke the state secrets privilege to dismiss cases alleging government wrongdoing. President Obama’s new policy on his administration’s use of the state secrets privilege, announced in September, did not satisfy many critics.

In the Jeppesen case, the Obama Justice Department has been adamant that the details of the Bush administration’s rendition-to-torture program remain secret — hence it’s request to the full Ninth Circuit to re-hear the case en banc, meaning all 11 active judges, rather than just the three-judge panel that ordinarily hears cases.  Courts of appeals reserve en banc hearings for unusually controversial and important cases, usually when there’s significant disagreement among the judges in the circuit. The judges vote on whether the case should be re-heard, but the outcome of the vote is not made public.

Apparently there is significant disagreement in this case, because the judges voted to accept the request for rehearing, the court announced yesterday.

Running through the list of situations that we’ve been reporting on in which the Obama administration continues to conceal evidence of torture — from the efforts of British resident Binyam Mohamed to seek justice for his “extraordinary rendition” and torture; to the administration’s continued efforts to dismiss cases alleging government-sponsored torture and illegal wiretapping by raising the “state secrets” privilege; to President Obama’s continued insistence on hiding photos of brutal detainee abuse — The Times highlights how President Obama, despite his grand promises of openness and accountability in the early days of his administration, has caved to Republicans and some conservative Democrats who want to bury the evidence of criminal and moral wrongdoing by the United States government.

“We do not take seriously the government’s claim that it is trying to protect intelligence or avoid harm to national security,” The Times writes. And it shouldn’t. As we’ve pointed out repeatedly at TWI, the outlines of our government’s abusive and in some cases criminal conduct is already well-known and can hardly endanger us further. Only by unearthing, acknowledging and accounting completely for the past can the new administration finally move beyond it to focus, unencumbered, on making sure it does not happen in the future.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

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That’s because the current administration announced earlier this week that it will continue the rendition program, albeit under the authority of a broader inter-agency team. But the administration has not ruled out sending terror suspects to countries that are known to torture them in custody.

A Justice Department release on Monday clarified that the U.S. government will obtain “assurances from foreign countries” that they’ll treat the prisoners humanely, and will “insist on a monitoring mechanism” to check up on the prisoner every once in a while, although it may provide some “advance notice to the detaining government.”

Whether or not that “trust me” approach is really worth trusting, given the similar assurances provided by the Bush administration, it does suggest that the Obama team may not welcome an Inter-American Commission inquiry into rendition.

Although the original El-Masri court case that Spencer referred to was brought against the Bush administration, more recent attempts to sue the government on behalf of innocent victims of extraordinary rendition have been similarly rebuffed by the Obama Justice Department, and on the same “state secrets” grounds.

As a result, not one victim of the Bush administration’s rendition program has had his day in court.

El-Masri, a German citizen, was kidnapped in 2003 in Macedonia and flown by U.S. agents to a CIA-run “black site” in Afghanistan. There, he claims he was beaten, drugged, blindfolded, confined in a tiny dirty cell, and prevented from communicating with anyone in the outside world, including his own family or the German government. About four months later, after apparently concluding that they had captured the wrong person, the CIA flew him to Albania and left him on a hillside in the dead of night. El-Masri has never been charged with a crime.

Update:  According to Steven Watt, El-Masri’s lawyer, the Obama administration probably couldn’t make the “state secrets” claim in the Inter-American Commission, which does “not recognize blanket prohibition on accessing courts to assert fundamental rights.”  However, ” Obama can try to argue that the state secrets privilege was legitimately raised before domestic courts and El Masri thus wasn’t denied access to a remedy (one of El Masri’s claims before the IACHR) but in our view, based on our assessment of international law, Obama wouldn’t prevail.”

He adds: “there is no equivalent of the state secrets privilege recognized under international human rights law to bar a human rights victim accessing an international tribunal such as the Commission. ”

The state secrets privilege, of course, is what the government invokes when it wants a judge to dismiss a lawsuit that it claims will reveal “state secrets” just by going forward, even if the judge is the only person who gets to see the sensitive secret evidence. The government invoked “state secrets” in the case of Mohamed v. Jeppesen Dataplan, and several other cases involving torture and warrantless wiretapping that the Justice Department wants dismissed. Pending legislation would limit the executive’s ability to use this confidential evidentiary privilege to dismiss outright legal challenges to government conduct. The administration so far has avoided taking a position on the legislation.

As I reported almost two months ago, Holder told the Senate Judiciary Committee on June 17 that he would issue a new policy on when the government will invoke the state secrets privilege to conceal evidence from the public — and even from federal court judges — “in a matter of days.”

Well, it’s August, and still nothing. After Ed asked me the question, I followed up with Dean Boyd, spokesman for the Justice Department’s national security division, asking him if that policy had ever been issued. After all, maybe we’d just missed it.

Boyd’s response:  “Not yet; still in the works.”

Mohamed is one of the plaintiffs in a lawsuit against Jeppesen Dataplan, the Boeing subsidiary that allegedly helped the CIA conduct “extraordinary renditions” of terror suspects to foreign countries to be tortured. As I reported back in June, the Obama Justice Department has asked the Ninth Circuit Court of Appeals to re-hear the case after the court ordered that it can continue, despite the administration’s assertion of the “state secrets privilege.”

Most recently, the Chronicle notes, a British government lawyer told the U.K. High Court of Justice last month “that Secretary of State Hillary Rodham Clinton had threatened to limit U.S. intelligence-sharing with Great Britain if the court disclosed details of Mohamed’s treatment in Guantanamo.”

A transcript of the British court’s July 29 hearing reveals that Lord Justice John Thomas rejected that argument, saying there was “nothing in the paragraphs (about the U.S. government’s treatment of Mohamed) that could conceivably identify anything that is of a national security interest.”

In three particular cases — Jewel v. NSA, Al Haramain v. Obama, and Mohamed v. Jeppesen Dataplan — the administration has asked courts to dismiss the cases on the grounds that allowing them to go forward would reveal “state secrets.”

Responding to the outcry that the administration is abusing the privilege, the Senate is set to take up legislation, the State Secrets Protection Act of 2009, that would limit the executive’s ability to dismiss cases based on the privilege. Holder suggested that the Obama administration’s view of the matter will be different than the Senate’s, and will eliminate the need for the legislation altogether.

He promised to produce that new policy publicly “in a matter of days.”

As I’ve written before, Mohamed v. Jeppesen Dataplan involves five victims of CIA rendition, or “torture by proxy” who sued the subsidiary of Boeing that allegedly helped the CIA fly the men, captured abroad, to secret CIA prisons in cooperating countries. Because federal officials are often immune from liability, the men, represented by the American Civil Liberties Union, sued the private aviation data company. But the U.S. government, then under President George W. Bush, intervened in the case and argued that allowing it to proceed would endanger national security by revealing information about CIA activities.

Since taking office, of course, President Obama has insisted that the United States no longer engages in or sponsors torture, so the ACLU hoped the new administration would change it’s position. But it hasn’t, and after losing its argument at the federal court of appeals in April, the Justice Department today filed a request with the court to re-hear the case en banc.

Claiming that “the [three-judge] panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure,” the government insists that the court’s approach “is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court’s sister circuits on questions of exceptional importance applying the privilege.”

The Department of Justice goes on to emphasize that this decision was not made by some low-level Justice Department functionary, but at the highest levels of government:

We emphasize that the Government’s request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege. [...] In this case, then-Director of the Central Intelligence Agency General Michael Hayden made the expert determination that continued litigation poses an unacceptable risk of disclosing state secrets” and concluded that “no information can be adduced on the public record to establish or refute [plaintiffs’] claims, or any defenses thereto, without jeopardizing the national security of the United States.”

Here’s the ACLU’s response, from staff attorney Ben Wizner:

The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions. The CIA’s rendition and torture program is not a ‘state secret;’ it’s an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability.

Here’s last night’s Q & A on the subject:

Q During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right now it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Ok, sounds like a reasonable response, right?  Well, not so fast. 

In the cases where the state secrets issue has come up — notably, in the case of Al-Haramain v. Obama challenging warrantless wiretapping, and in Mohamed v. Jeppesen Dataplan, in which the plaintiff is suing the private company that helped the CIA carry out “extraordinary rendition” and torture — the Department of Justice could have easily asked for more time to consider the application of the “state secrets privilege.”  That’s a no-brainer: any plaintiff’s attorney would have given a new administration extra time to revisit the policy, rather than waste more time and money litigating it in court. But the Justice Department — President Obama’s Justice Department — did not do that.  To the surprise of even the judges on the Ninth Circuit Court of Appeals who heard the Jeppesen case, it insisted that it would assert the state secrets privilege just as broadly as the Bush administration had.  And in the Al-Haramain case, it actually went farther, telling the judge that he had no authority to order release of government documents, even after losing an appeal on the matter.

Now that this issue has become a public embarrassment, however, President Obama has been forced to talk about it. Last night, he said that there should be ways “to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.”

Well, there already are. In fact, the judges in both the cases I cited above have already ruled that they can review the sensitive documents privately and that matters of national security can remain classified, as needed. Nobody was proposing busting open the CIA’s files of classified information about extraordinary rendition and wireless wiretapping and publishing them on the Internet. As the lawyers for the victims suing in those cases said repeatedly, they were happy to work with the court to find ways to protect any truly sensitive information; they just didn’t want their entire case thrown out — and their clients’ ability to seek justice destroyed — by the government’s assertion that the case must be crushed to protect a couple of documents.

Notably, President Obama did not say last night that he supports the State Secrets Protection Act, which would remedy the problem he referred to. In fact, he’s never taken a position on that law, as Greg Sargent has pointed out. Perhaps that’s because it would dilute executive power; the proposed law would prevent courts from dismissing cases based on government assertions that secrets are involved, and instead would require the courts to use already-available procedures to protect the evidence without throwing out the entire case. That sounds, at least, like what Obama said he wanted at Wednesday’s press conference.

Obama may be well-meaning and well-spoken on this issue, and his words last night sounded eminently reasonable. But as I’ve noted before, Attorney General Eric Holder has so far been unwilling to make any real changes to the administration’s attitude toward asserting broad state secrets privileges to dismiss litigation that challenges government lawbreaking.

If he’s going to follow through on the commitments he’s made to open government, Obama will need to do more than just say the right things.