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Obama Justice Department Supports Bush ‘State Secrets’ Claims

In a move that’s sure to dismay some of President Obama’s faithful, the new administration today stood up in a federal appeals court and reiterated the Bush administrations’ arguments that victims of “extraordinary rendition” and torture should not be allowed to bring their claims in federal court because doing so would reveal “state secrets” and harm national security.

As we first reported in late January, the Bush administration had succeeded in getting the case, Mohamed v. Jeppesen Dataplan, dismissed by arguing that subject of the lawsuit — the CIA’s extraordinary rendition program — was itself a state secret, regardless of how many times President Bush and various CIA directors had talked publicly about it.

Countering the arguments of the American Civil Liberties Union, which represented five victims of the program who all claim they were abducted abroad and shipped to a foreign country to be brutally tortured, the government claimed that even allowing the federal judge overseeing the case to review any classified evidence behind closed doors would endanger national security.

The ACLU, the bipartisan Constitution Project and others have been watching this case closely. Since we first reported on it, in the past week The New York Times and The Los Angeles Times‘ editorial boards have both weighed in, urging the Obama administration to reconsider the Bush Justice Department’s claims.

Today, we got our answer: Obama’s executive orders and presidential memoranda on ending needless government secrecy notwithstanding, the Bush administration’s view that allowing torture victims to have their day in court is a danger to national security still stands.

It’s worth noting that while it’s still early in the new administration and Attorney General Eric Holder was just recently confirmed, the Justice Department did NOT ask the court for more time to consider its views on the case. Instead, it supported the Bush administration’s position that the case should be dismissed.

The Obama administration took a similar position in a related British case that I wrote about last week.

None of this bodes well for the likelihood of obtaining additional information about the Bush administration’s interrogation policies in the future.

Update: Here’s what ACLU Executive Director Anthony Romero had to say after today’s hearing:

Eric Holder’s 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. 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.

I’ll be writing this week about an important FOIA case in which the Obama Justice Department will soon have to take a stand as well. Stay tuned.

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