Obama Stands Behind 'State Secrets' Defense

February 9, 2009— -- President Obama's pledge to turn the CIA's involvement in secret detention and torture into a thing of the past was sharply tested today, and critics say he failed miserably.

"This is not change," said the American Civil Liberties Union. "This is definitely more of the same."

In a federal court hearing in San Francisco this morning, a representative of the Justice Department said it would continue the Bush policy of invoking the 'state secrets' defense, which has been used in cases of rendition and torture.

The ACLU is arguing that its lawsuit against Boeing subsidiary Jeppesen Dataplan, Inc. should go forward. The suit is based on the company's alleged participation in the CIA's rendition program, and the Bush administration had previously intervened by saying that the case undermined national security interests, according to the ACLU, which is appealing the dismissal of the suit in Feb. 2008.

"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 issues," the ACLU said in a statement. "If this is a harbinger of things to come, it will be a long and arduous road to gives us back an America we can be proud of again."

A spokesman for the DOJ said Attorney General Eric Holder has begun reviewing all state secret privilege matters, and that "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases."

Today's hearing before the Ninth U.S. Court of Appeals in San Francisco had been highly anticipated because it was seen as the first test of the Obama's administration stance on the controversial issue of rendition - in which terrorist suspects are secretly flown to countries or secret CIA camps, in which torture has been alleged.

"Under the Bush administration, the U.S. government used false claims of national security to dodge judicial scrutiny of extraordinary rendition," said ACLU staff attorney Ben Wizner, who is arguing the case for the plaintiffs. "This case presents the first test of the Obama administration's dedication to transparency and willingness to act on its condemnation of torture and rendition."

It was not known whether Obama's team would choose to delay the issue, and seek to adjourn the case, or whether the issue would be immediately addressed.

Though the new White House might wish simply to go beyond the past and move on, the trouble is that uncovering the truth of what happened is judged by many as essential – not least towards weighing up the claims of many prisoners still held at Guantanamo and elsewhere that their "confessions" to plotting acts of terrorism were obtained under torture.

Take the case of Binyam Mohamed, an Ethiopian brought up in Washington, DC and London, now in his 2,249th day of detention. After his arrest in Pakistan in 2002, he followed a grim odyssey that, by his account, took him through the CIA's rendition program, through a CIA 'black site' in Afghanistan, through extreme torture in Pakistan and Morocco, and finallly into military hands at Guantanamo Bay.

Mohamed is one of the plaintiffs in the San Francisco Case. All are current or former prisoners who allege that aviation contractor Jeppersen Dataplan, Inc. helped run the CIA's torture" target="_blank">secret fleet of planes that ferried them on a rendition to torture. The Justice Department has tried to strike out the case, without a hearing of the facts, on the grounds of state secrets. (Jeppesen has previously declined to comment in detail on the case although it made clear that, though it provides aviation support services, it is not directly responsible for the flights it handles.)