Justice Department Invokes ‘State Secrets' Defense in Rendition Lawsuit

By Peter Finn
Washington Post Staff Writer
Tuesday, February 10, 2009

The Obama administration invoked the same "state secrets" privilege as its predecessor in federal court in San Francisco yesterday in opposing the reinstatement of a lawsuit that alleges that a Boeing Co. unit flew people to countries where they were tortured as part of the CIA's "extraordinary rendition" program.

The Justice Department's stance on the case came despite a pledge by Attorney General Eric H. Holder Jr., first at his confirmation hearing and again yesterday in a statement, to review all assertions of the state secrets privilege.

The American Civil Liberties Union brought the case on behalf of five foreigners who were allegedly transferred to countries where they were tortured under interrogation. One of the five, Binyam Mohammed, a British resident, claims in court papers in the United States and in Britain that he was flown to Morocco and held there for nearly two years after his capture in Pakistan. He is now in the U.S. military prison at Guantanamo Bay, Cuba.

Mohammed and the others are seeking unspecified damages.

Leon E. Panetta, Obama's nominee to head the CIA, told Congress that he would end the practice of transferring suspects to countries where they are at risk of being tortured.

The Bush administration argued that the lawsuit against Jeppesen DataPlan, a Boeing unit based in Colorado, threatened the country's national security interests. In court yesterday, the panel of three judges asked the government if there was any change in its position because of the new administration.

A Justice Department attorney said the government stands by its brief, which was filed by the Bush administration.

A Justice official, speaking on the condition of anonymity because the case is ongoing, said the new administration decided the lawsuit involves state secrets that need to be protected.

Ben Wizner, an ACLU staff lawyer who argued the case for the plaintiffs, condemned the decision as Obama's ratification of the Bush administration's "extreme policies," which he said prevent torture victims from seeking redress.

"This administration is going to have to face the issue of accountability, and the administration cannot pretend the last seven years didn't happen," Wizner said in a phone interview.

The suit was filed by the ACLU in May 2007 and was dismissed last February. The organization told the federal appeals court yesterday that the suit ought to be reinstated.

The government has invoked the state secrets privilege in a number of cases in recent years, including various suits concerning the National Security Agency's wiretapping program.

Justice Department spokesman Matt Miller declined to discuss the ACLU's suit in San Francisco, citing ongoing litigation. A decision in the case may take several months.

But he said the department will scrutinize all cases involving claims of state secrets.

"The attorney general has directed that senior Justice Department officials review all assertions of state secret privilege to ensure that it is being invoked only in legally appropriate situations," Miller said. "It is vital that we protect information that if released could jeopardize national security, but the department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know."

Staff researcher Julie Tate contributed to this report.

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