The public is likely to get its first close look at the Obama administration's policies on torture, secrecy and prisoners' rights in a San Francisco courtroom today, when federal judges press a government lawyer for a position on the practice known as extraordinary rendition.
Five men - one now imprisoned in Egypt, one in Morocco, one at Guantanamo Bay and two who have been released without charges - are asking the Ninth U.S. Circuit Court of Appeals to reinstate a lawsuit that accuses a San Jose flight-planning company of helping the CIA transport them to overseas dungeons for interrogation and torture.
The suit against Jeppesen Dataplan, a Boeing Co. subsidiary, has never gone to trial. The Bush administration intervened and persuaded U.S. District Judge James Ware to dismiss the case in February 2008 on the grounds that allowing it to proceed could expose state secrets and harm national security.
The Justice Department has urged the appeals court to uphold Ware's ruling, saying that if the case goes to court, it could disclose ultra-sensitive information - the CIA's alleged relationship with a private company, its methods of holding and interrogating suspected terrorists, and the alleged cooperation of foreign governments. The department filed a supporting brief containing classified information under seal.
Obama's course unclear
But those arguments were made when George W. Bush was president. The American Civil Liberties Union, which represents the plaintiffs suing Jeppesen, is looking for President Obama to reverse course.
"The administration should unequivocally reject the Bush administration's abuse of the state secrets privilege and permit this case to go forward," said ACLU attorney Ben Wizner. "Victims of extraordinary rendition deserve their day in court."
Extraordinary rendition refers to the practice of abducting suspected criminals and terrorists without any extradition or legal proceedings, and taking them to foreign countries or CIA prisons for detention and interrogation.
The Bush administration, which used the practice extensively, maintained it never took a prisoner to a foreign country without first obtaining assurances that no torture would be used.
But there is considerable evidence that some prisoners were treated harshly, including the case of Maher Arar, a Canadian seized by U.S. agents at a New York airport in 2002 and flown in shackles to his native Syria - a nation with a record of torturing prisoners.
Arar, who is not involved in the case before the Ninth Circuit, was returned 10 months later to Canada. That nation eventually paid him $10 million, finding he had been picked up by mistake and tortured. The United States still bars him from entering this country.
Plaintiffs allege torture
The five plaintiffs in the Jeppesen case also allege that they have been tortured in captivity. One of them, Binyam Mohamed, a British resident now held at Guantanamo, was the subject of an international uproar last week when Britain's high court said it could not release details of his treatment at Guantanamo because Washington had threatened to stop cooperating with London on intelligence.
The State Department sent a message of thanks to the British government after the ruling, but it's not clear whether the message reflected the Obama administration's position.
Jeppesen provides a variety of flight-planning services. A Council of Europe report in 2007 identified the company as the CIA's aviation services provider. A court declaration by a former Jeppesen employee quoted a company director as telling staffers in August 2006 that the company handled torture flights.
The suit accuses Jeppesen of arranging at least 70 flights for the CIA since 2001, including those of the five plaintiffs.
In opposing the government's bid for dismissal, the ACLU argued that the rendition program is not a secret, noting that Bush and other top officials openly defended the program.
The Justice Department, now led by Obama-appointed Attorney General Eric Holder, has not withdrawn its predecessor's written arguments in the case or asked for a postponement to reconsider its position. Department spokesman Charles Miller said he had no information on what stance the department would take at today's hearing.
A possible clue came in Thursday's Senate Intelligence Committee testimony by Leon Panetta, the former California congressman nominated by Obama to head the CIA. He said the president would prohibit "that kind of extraordinary rendition when we send someone for the purpose of torture or actions by another country that violate our human values."
But Panetta endorsed rendition to send someone to another country to face prosecution.
On the other hand, Wizner said Obama's executive order to close secret CIA prisons should curb some of the past abuses.
He said he was also heartened by the president's endorsement of international laws against torture - in contrast with the Bush administration's narrower definitions - and Obama's promise of an open government.
"This is a case," the ACLU lawyer said, "where I would be surprised if the Obama administration were to support arguments that the Bush administration made."