Today, an Italian court convicted 23 Americans for the “extraordinary rendition” of a Muslim cleric who was kidnapped in Milan in 2003. The case is the first of its kind to hold Americans accountable for the rendition of terrorism suspects overseas.

The three-year trial in Milan ended in the conviction of Americans — mostly CIA agents — in the kidnapping of Hassan Moustafa Osama Nasr, known as Abu Omar. Omar was seized on the streets of Milan in 2003 and held in U.S. military bases in Italy and Germany, before being transferred to Egypt, where he claimed he was tortured. After four years in detention, he was released without charge.

According to media reports, the Americans were tried in absentia, and all but one was given a five-year sentence. Former Milan CIA station chief, Robert Seldon Lady, was sentenced to eight years in prison. Three other Americans were given diplomatic immunity and acquitted. Two Italians were convicted as accomplices to kidnapping.

In contrast, earlier this week, a rendition lawsuit brought against U.S. government officials on behalf of Canadian citizen Maher Arar was dismissed by a U.S. Court of Appeals because it raised foreign policy and secrecy issues. And, last week a federal appeals court announced that it will hear the government's appeal of an earlier ruling that allowed an ACLU lawsuit to go forward against a Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the "extraordinary rendition" program.

In a press release that we sent out today, ACLU Human Rights Program attorney Steven Watt stated:

The decision in Italy underscores the need for the United States to hold its own officials accountable for crimes committed under the “extraordinary rendition” program. It is shameful that the first convictions of this kind came from a foreign justice system, where those convicted are not likely to serve their time. The U.S. judicial system must provide similar measures of accountability to hold those who committed crimes in the names of the American people responsible for their actions and provide victims of torture with access to justice.

The ACLU has been calling on the Justice Department to hold accountable those involved in the illegal rendition and torture of detainees in the Bush administration’s “war on terror.”  Join us in asking Attorney General Holder to launch a full and thorough investigation of the abuse and torture of detainees in U.S. custody.

Months after Attorney General Eric Holder said he would release the Obama administration's new policy on the use of the state secrets privilege, it's finally out. The thrust of the new rule: Holder must approve any invocation of the privilege.

Well, that's not much different from the Bush administration's policy, which was to invoke the privilege at the outset, before the case even got its foot in the courthouse door.

Ben Wizner, staff attorney with the ACLU National Security Project, filed two cases challenging the CIA's extraordinary rendition program. In the first case, brought on behalf of Khaled el-Masri, the district court and appeals court both accepted the government's state secrets claim, and the Supreme Court refused to hear the case. In the second case brought against Boeing subsidiary Jeppesen Dataplan, the district court sided with the government when it invoked the state secrets privilege, but the appeals court reversed that decision. The DOJ is now asking the appeals court to rehear the case en banc, or before a full panel of judges. Ben said in a statement today:

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.'

Real reform must start in Congress. House and Senate bills were introduced a few days after DOJ lawyers invoked the state secrets privilege before the 9th Circuit in our Jeppesen case. Coincidence? We hope not. It's time for Congress to reassert its role as a check on executive power. Without state secrets legislation, we'll only have more secrecy and less accountability.

On Monday, the Obama administration announced that it would continue the Bush administration practice of kidnapping individuals suspected of terrorism to other countries to be detained or interrogated. The Obama administration also announced that the U.S. would establish a system for monitoring their post-rendition treatment, in an attempt to ensure that individuals will not be tortured once they are transferred to other countries.

The administration's announcement forms part of the Justice Department's new recommendations on the interrogation and transfer of individuals. The newly revamped rendition program would rely "on assurances from the receiving country" to prevent torture. These so-called "diplomatic assurances" — that is, written guarantees from the receiving state that a person would not be subject to torture or other prohibited treatment upon return — are not a new concept; they were also employed by the Bush administration in the universally condemned "extraordinary rendition program" and proved singularly ineffective in preventing individuals from being tortured after transfer.

Speaking with reporters on Tuesday, Ian Kelly, a U.S. Department of State spokesman, gave further details of the mechanics of the Obama rendition program. Kelly stated that the State Department would "establish a kind of monitoring mechanism that allows us to be able to make sure, after the prisoner has been transferred, that he or she is not being abused." The practice "puts in place" said Kelly, "a mechanism which we still have to define." Kelly noted that the Inspector Generals from the Departments of State, Homeland Security and Defense would jointly issue annual reports on how the system is working to ensure its efficacy (only parts of these reports may be unclassified and released to the public).

So far, the only protection against torture that the Obama administration has offered in its recommendations is the receipt of "diplomatic assurances" that torture will not be used. But as Amrit Singh noted in an interview with the New York Times, experience clearly demonstrates that "diplomatic assurances" have "proven completely ineffective in preventing torture."

Take, for example, the case of Maher Arar, a Canadian citizen and victim of "extraordinary rendition". Before rendering Arar to Syria, the U.S. government reportedly relied on "assurances" obtained from the Syrian government that Arar would not be tortured. Despite these assurances and visits by consular officials from the Canadian Embassy in Damascus while he was detained, Arar was brutally tortured — a fact proven in the course of a two-year long public inquiry in Canada.

As a party to the U.N. Convention Against Torture, the U.S. is under an absolute obligation not to commit torture or to facilitate its occurrence. By instituting a rendition program that relies on "diplomatic assurances," the Obama administration is turning its back on U.S. obligations under the U.N. Convention.

A rendition program with "diplomatic assurances" as its centerpiece will be ineffective at preventing torture. We urge the administration to uphold its absolute obligation to prevent torture. Any transfer it engages in must fully comply with domestic and international human rights law, and this precludes transfers based on "diplomatic assurances" in any situation where there is a real risk of torture. Anything less will mark a return to the unlawful "extraordinary rendition" program.

Presented with a first opportunity to break away from the Bush administration's legacy of abuse and secrecy, and uphold commitments of transparency and openness, the Obama Justice Department stood by the previous administration's claims of "state secrets" in our lawsuit (Mohamed et al. v. Jeppesen) against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Before the 9th Circuit Court of Appeals yesterday, once again, we heard government lawyers argue that the entire subject matter is a "state secret" — one that cannot be reviewed by any court. (You can listen to the oral argument here.)

Needless to say, we're shocked and disappointed. And we're not the only ones. Over the past week, the case against Jeppesen and the questions it raises about transparency and accountability in a post-Bush era appeared all over editorial pages, news media and in the blogosphere.

Both The New York Times and The Los Angeles Times penned editorials, urging the new administration to reconsider the Bush Justice Department's "state secret" claims. And, in an op-ed published in the San Francisco Chronicle, a former U.S. Ambassador to the United Nations and the head of the Iraq Survey Group called on the new administration "to demonstrate its commitment to transparency, accountability and the rule of law by allowing judicial review of the state secrets claims in the Jeppesen case."

News outlets, including the Washington Post, Associated Press, The Wall Street Journal, The New York Times, National Public Radio, ABC News, the Guardian, CBS News, Bloomberg, and the San Francisco Chronicle reported on the new Justice Department taking "exactly" the same position as the previous administration. Many of the articles also mentioned that while oral arguments were taking place in San Francisco, back in Washington, new Attorney General Eric Holder ordered a review of all cases in which the Bush administration claimed state secrets were at stake "to ensure that it is being invoked only in legally appropriate situations," according to Justice Department spokesman Matt Miller.

The Los Angeles Times story provides a glimpse into the court room:

At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government's lawyer that he was not convincing.

"So any time the executive branch of the government says the fact is classified, it means it cannot be examined?" Hawkins asked Letter.

Letter, noting that national security was at stake, told the court it should "not play with fire" by permitting the suit to go forward.

"Nor should the government in asserting [secrecy] privilege," Hawkins shot back.

Meanwhile, in the blogosphere…

Slate mentioned our case against Jeppesen in their "Top 10 cases the Obama Justice Department should redo," only to later report "[s]o much for a perfect score."

Over at Salon, Glenn Greenwald calls Obama out for the 180-degree reversal of his campaign position on "state secrets."

Firedoglake's bmaz notes that, "In fairness, the Obama DOJ may view this as protecting information on rendition flights, not details of torture; however, the result is the same, and just as heinous. Meet the new boss, same as the old boss."

The Atlantic's Andrew Sullivan points out, "This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them." And begs the question, "So what are they hiding from us? Wouldn't you like to know?"

Daphne Eviatar's piece in The Washington Independent notes: "None of this bodes well for the likelihood of obtaining additional information about the Bush administration's interrogation policies in the future." (In a separate piece she also reminds readers that the Obama administration's second test will come this Friday — when the government's reply is due in our request for critical memos written by the Bush administration's Office of Legal Counsel that supplied the legal basis for many of the policies regarding the treatment of detainees.)

And blogger Valtin on Invictus reminds us our work is far from done.

But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.

So now what?

Ben Wizner, who argued for the plaintiffs in our case against Jeppesen, explains, "Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court."