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U.S. Urges New Look at State-Secrets Case
Administration Asks Court to Reconsider Its Decision Allowing Rendition Lawsuit

By Carrie Johnson
Washington Post Staff Writer
Saturday, June 13, 2009

The Obama administration yesterday petitioned a full federal appeals court to hear its argument that it should not have to reveal details of the CIA's "black site" prison program, adopting an expansive position that activists say would prevent victims of rendition in the Bush years from having their day in court.

The Justice Department urged the U.S. Court of Appeals for the 9th Circuit to reconsider a case of "exceptional importance" and to overturn an April ruling that sharply limited the executive branch's authority. That ruling by a three-judge panel cleared the way for a lawsuit filed by five foreign-born men who say they were kidnapped, flown to other countries and questioned using practices they liken to torture.

Civil liberties groups and Democrats on Capitol Hill have been closely watching how often the Obama administration has argued, as the Bush administration did, that some lawsuits should be thrown out to prevent revealing state secrets. Lawmakers are pushing measures in both houses of Congress to ensure that, when a state-secrets claim is made, judges review sensitive evidence piece by piece rather than throwing out an entire case.

During the presidential campaign, Barack Obama criticized the Bush administration for using state-secrets arguments dozens of times to stop lawsuits over warrantless surveillance, alleged abuse of terrorism suspects and other controversial subjects.

One day after the judges issued a sharply worded ruling in the rendition case, known as Mohamed et al v. Jeppesen Dataplan after the Boeing subsidiary that provided support for the overseas rendition flights, the president said he would direct his lawyers to develop a more "surgical" policy on state secrets. That effort continues, according to the White House and the Justice Department.

But yesterday's court filing frustrated civil libertarians who said their hopes for a significant break from the Bush era on state-secrets policy had been all but dashed.

"This is a watershed moment," said Ben Wizner, a staff lawyer at the American Civil Liberties Union's National Security Project. "There's no mistake any longer . . . the Obama administration has now fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions."

Tracy Schmaler, a spokeswoman for the Justice Department, declined to comment.

In the government court filing yesterday, lawyers reported that the "highest levels of the Department of Justice" had reviewed the case and had sided with former CIA director Michael V. Hayden. He had twice submitted sworn statements warning that any release of information would cause "grave harm" to the agency's intelligence-gathering efforts and its relationships with foreign leaders.

"It is the government's position that allowing this suit to proceed would pose an unacceptable risk to national security and that the reasoning employed by the panel would dramatically restructure government operations by permitting any district judge to override the executive branch's judgments in this highly sensitive realm," the Justice Department filing said.

Wizner and other advocates for greater disclosure called the argument puzzling, because details about the rendition program have already emerged. European researchers have compiled documents tying Jeppesen to the CIA-commissioned flights, and one of the five men suing in U.S. court has recovered $450,000 from the Swedish government for its alleged role in his capture.

Developments in the rendition lawsuit are the latest tensions to surface for new government leaders over how much information to release about Bush initiatives in the campaign against terrorism. The Justice Department is also using the state-secrets argument in a lawsuit filed by an Oregon charity whose lawyers say they were unlawfully wiretapped, as well as in numerous ACLU Freedom of Information Act cases focused on detainee treatment and the development of interrogation policy.

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