LINDA WERTHEIMER, host:
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Human rights groups are saying they're disappointed with the actions of the Obama administration. At a federal appeals court in San Francisco yesterday, attorneys representing the Obama Justice Department asked a judge to throw out an alleged torture case. That's the same position the Bush administration took in the lawsuit. Now some Obama supporters wonder whether the new president will keep his promise to make government more open and transparent. NPR's Ari Shapiro reports.
ARI SHAPIRO: Five former detainees brought this lawsuit. They say the CIA flew them overseas to be tortured. And they say a Boeing subsidiary, called Jeppesen DataPlan, provided logistical support. The former detainees are suing to hold Jeppesen accountable. So far they've had no luck. Bush administration lawyers argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.
Yesterday, the suit went before three judges on an appeals court. And everyone wondered whether the Obama Justice Department would change course. ACLU attorney Ben Wisner represents the detainees. We reached him on a cell phone right after the arguments.
Mr. BEN WISNER (Attorney): The Obama administration, which came to office on a promise of greater transparency, on a promise of ending these practices, stood up and made exactly the same arguments that were made by Bush lawyers to throw out a torture victim's lawsuit, and that's a profound disappointment.
SHAPIRO: This was the first major national security lawsuit of the new administration and there was no daylight between the positions of President Bush and President Obama.
American University law Professor Amanda Frost has written about state secrets. She says the government has taken an extreme position here, arguing that the entire case jeopardizes national security.
Professor AMANDA FROST (American University): There are far more moderate positions that they could take that would protect classified information. The U.S. government acknowledges engaging in rendition. So while there may be individual pieces of evidence that need for state secret reasons to be kept secret, it is simply ludicrous to declare that the very subject matter of the case is a state secret.
Mr. ROBERT RABEN (Former Justice Department Official): I think that people need to stay calm.
SHAPIRO: Robert Raben was a senior Justice Department official in the Clinton administration, and he now runs a lobbying and consulting firm.
MR. RABEN: Well, I just don't think there's been enough time. I don't think every computer has been turned on in the executive branch. I don't think every seat has been warmed by the smarties that will sit down and figure out what the policy will be.
SHAPIRO: Raben points out that President Obama has taken steps to close Guantanamo and torture, comply with international treaties, and redefine enemy combatants.
Mr. RABEN: So I'm not tallying up here, but it sounds like four to one.
SHAPIRO: ACLU attorney Wisner takes his point.
Mr. WISNER: It's a good thing that President Obama has shut down the secret prisons. It's a good thing that he has ordered the end of torture. It's very, very disappointing that he's standing in the way of accountability against perpetrators and compensation for victims.
SHAPIRO: It may not be a coincidence that the same day as arguments in this case, Attorney General Eric Holder issued a new directive. He ordered senior Justice Department officials to review all of the Bush administration's assertions of the state secrets privilege. Justice Department spokesman Matthew Miller said it's vital to protect information that could jeopardize national security if it was revealed.
Mr. MATT MILLER (Spokesman, Justice Department): But the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's action that they have a right to know.
SHAPIRO: Miller said the attorney general wants to make sure the state secrets privilege is only invoked in, quote, "legally appropriate situations." Of course, what's legally appropriate and what's not is a subjective call. One that is now up to Attorney General Holder.
Ari Shapiro, NPR News, Washington.
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