Rendition Suit A Test Of Obama Transparency

Leon Panetta, CIA director designate, with President Obama. i i

Leon Panetta, President Obama's choice for CIA director, may take the agency in a new direction, but old legal issues remain. Mandel Ngan/AFP/Getty Images hide caption

itoggle caption Mandel Ngan/AFP/Getty Images
Leon Panetta, CIA director designate, with President Obama.

Leon Panetta, President Obama's choice for CIA director, may take the agency in a new direction, but old legal issues remain.

Mandel Ngan/AFP/Getty Images

Monday morning will bring the best indicator to date of whether the Obama administration intends to break from President Bush's practice of using broad claims of state secrets to prevent lawsuits from being heard in court. The test comes in a case about torture being argued before three judges on a federal appeals court in San Francisco.

Five men who say they have been tortured want to hold a Boeing subsidiary called Jeppesen Dataplan accountable for their treatment. The plaintiffs say Jeppesen helped the CIA fly terrorism detainees to foreign countries for torture.

The Bush administration has always argued that no part of the case can be tried without jeopardizing state secrets. Lawyers for the torture victims say that while the suit may involve some state secrets, many details of the CIA's extraordinary rendition program are already public, and the suit as a whole should go forward.

A lower court sided with the government and threw the case out.

On Monday, ACLU attorney Ben Wizner will argue that the lower court judge was wrong and his clients should have their day in court. For the first time, the government attorney sitting opposite him will represent the Obama administration. Wizner asks, "Will he assert the Bush Justice Department's claim that the case has to be thrown out at the very outset, effectively making sure that no torture victim can ever have his day in court?" Government officials have refused to comment on the case.

The last time the Justice Department filed legal briefs in this suit, George W. Bush was still president. Since Barack Obama took office, the department has asked judges for time to review and change the government's position in other cases. They've made no such request in this case.

David Laufman, who handled terrorism cases as a federal prosecutor, believes the Obama administration's silence on this issue suggests it will take the same position as the Bush administration. "It would be pretty unorthodox for a Justice Department lawyer to stand up in court on Monday and for the first time tell the court that it is reversing course," says Laufman.

If the Obama administration does not change course, ACLU attorney Wizner will feel betrayed.

"It is hard for me to believe that a lawyer representing the United States, representing President Obama and Attorney General Eric Holder, will take the same extreme positions that I've been fighting against for the last several years," says Wizner. "It's inconceivable, given the rhetoric that we've heard from candidate and President Obama."

President Obama often says his administration will strive for transparency. He said on his first full day in office, "The way to make government responsible is to hold it accountable. And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they're being made, and whether their interests are being well-served."

This case has not taken the Obama administration by surprise. The ACLU briefed Justice Department transition team members on the suit months ago.

Several sources in and outside of Justice say senior Obama appointees now at the department are very aware of this lawsuit. It was the subject of the lead editorial in Thursday's New York Times, which said that maintaining the Bush administration's position in this case "certainly does not fit principles that the new president has so often articulated."

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