By Dan Froomkin
12:14 PM ET, 02/10/2009
No change? On something this important? How is this possible?
John Schwartz writes in the New York Times: "In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
"In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s 'extraordinary rendition' program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.
"During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday."
Maura Dolan and Carol J. Williams write in the Los Angeles Times that Letter "told the U.S. 9th Circuit Court of Appeals that the Obama administration was taking 'exactly' the same position as the previous White House in calling for dismissal of a lawsuit by five terrorism suspects snatched by U.S. agents in foreign countries and delivered to secret detention sites in other countries....
"The case was 'thoroughly vetted with the appropriate officials of the new administration,' said Letter, who represented the Bush administration's opposition to the lawsuit as well....
"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."
Dolan and Williams add: "At the same time, Justice Department officials in Washington pledged to review all cases in which the Bush administration invoked the right to protect state secrets and pledged to ask for secrecy 'only in legally appropriate situations.'"
Here's the response from Anthony D. Romero, executive director of the American Civil Liberties Union: "This is not change. This is definitely more of the same. 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 issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."
Glenn Greenwald blogs for Salon that the administration had "resoundingly and disgracefully" failed "the first real test of the authenticity of Obama's commitment to reverse the abuses of executive power over the last eight years."
David Luban blogs for Balkinization: "Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing."
Andrew Sullivan blogs for Atlantic: "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.
"So what are they hiding from us? Wouldn't you like to know?"