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Is This the "Change We Can Believe In"?

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February 10, 2009

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.”

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