JACKI LYDEN, host:
Back in Washington, there's another big moment for the administration tomorrow. It's going public with a policy shift on national security secrets, a court case on torture. The Bush administration made a sweeping claim that the entire case should be secret. Now we'll find out whether President Obama takes the same position. NPR's Ari Shapiro previews tomorrow's oral arguments.
ARI SHAPIRO: Five men who say they have been tortured want to hold a Boeing subsidiary accountable. The subsidiary is called Jeppesen DataPlan. The plaintiffs say Jeppesen helped the CIA fly terrorism detainees to foreign countries for torture.
The Bush administration has always said this whole case is a state secret. A lower court agreed, and the judge threw the case out. Tomorrow, it comes before three judges at the Federal Appeals Court in San Francisco. ACLU lawyer Ben Wizner will stand up and argue that the former detainees should have their day in court.
Mr. BEN WIZNER (Attorney, ACLU): At the other table will be a lawyer representing the United States. And what he says will be the position of the Obama administration. 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?
SHAPIRO: No one knows what the Justice Department will say. The government has not commented. The last time the government filed legal briefs in this case, George W. Bush was still president.
Since President Obama took office, the department has asked judges for time to review and change the government's position in other cases, but not this one. Former federal prosecutor David Laufman says that suggests the Obama administration will make the same arguments in this case as the Bush administration did.
Mr. DAVID LAUFMAN (Partner, Kelley Drye; Former Federal Prosecutor): I would say it would be pretty unorthodox for the Justice Department lawyer to stand up in court on Monday and for the first time, tell the court that it is reversing course.
SHAPIRO: If the Obama administration keeps the Bush administration's position, ACLU attorney Wizner will feel betrayed.
Mr. WIZNER: It's inconceivable given the rhetoric that we've heard from candidate and President Obama. It is really hard for me to believe that the situation that you describe will actually take place.
SHAPIRO: Here's something President Obama said about government secrecy his first full day in office.
(Soundbite of speech by President Obama)
President BARACK OBAMA: 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.
SHAPIRO: This case has not taken the Obama administration by surprise. The ACLU briefed Justice Department transition team members on the case months ago. Several sources in and outside of Justice say senior Obama appointees now at the department are very aware of this lawsuit.
The case was the subject of the lead editorial in Thursday's New York Times. The article said maintaining the Bush administration's position in this case, quote, "certainly does not fit principles that the new president has so often articulated."
Attorney David Laufman believes tomorrow could be a rude awakening for some of President Obama's more liberal supporters.
Mr. LAUFMAN: There's that old joke that a conservative is a liberal who's gotten mugged, and thank God the new team hasn't gotten mugged yet.
SHAPIRO: But he says a daily threat briefing can be about as sobering as a mugging. Ari Shapiro, NPR News.
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