SAN FRANCISCO - President Obama's Justice Department signaled in a San Francisco courtroom Monday that the change in administrations has not changed the government's position on secrecy and the rights of foreign prisoners - and that lawsuits by alleged victims of CIA kidnappings and torture must be dismissed on national security grounds.
"Judges shouldn't play with fire," Justice Department lawyer Douglas Letter told the Ninth U.S. Circuit Court of Appeals in San Francisco, which is considering a suit accusing a San Jose company, Jeppesen Dataplan, of arranging so-called extraordinary rendition flights for the CIA.
Once the judges privately examine the government's classified evidence, Letter said, "you will see that this case cannot be litigated."
Letter said the Justice Department's position, previously argued by the administration of former President George W. Bush, has been "thoroughly vetted with appropriate officials of the new administration."
He did not mention extraordinary rendition, the practice of abducting suspected criminals and terrorists and taking them to foreign countries or CIA prisons for interrogation. Although Obama has issued orders banning torture and closing secret CIA prisons, his administration has sent mixed signals on extraordinary rendition and the legitimacy of court challenges.
Obama's nominee for CIA director, Leon Panetta, said last week that he approved of rendition for foreign prosecution or brief CIA detention, but not for extended confinement. Like his Bush administration predecessors, he also said he would require a foreign government to promise not to torture a prisoner.
On Monday, Justice Department spokesman Matt Miller said Attorney General Eric Holder has ordered a review to make sure government secrecy is invoked only to protect national security and not "to hide from the American people information that they have a right to know."
But the American Civil Liberties Union, which represents five men suing Jeppesen for allegedly flying them to foreign torture chambers, said this case is the new administration's chance to live up to its promises.
"Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on this important civil liberties issue," the ACLU's executive director, Anthony Romero, said after the hearing.
Widely known secret
ACLU attorney Ben Wizner told the court that the supposedly ultra-secret rendition program is widely known. He noted that Sweden recently awarded $450,000 in damages to one of the plaintiffs, Ahmed Agiza, for helping the CIA transport him to Egypt, where he is still being held and allegedly has been tortured.
"The notion that you have to close your eyes and ears to what the whole world knows is absurd," Wizner said.
Agiza and the other plaintiffs - one now imprisoned in Morocco, one held at the U.S. Naval Base at Guantanamo Bay, Cuba, and two who have been released without charges - accuse Jeppesen of colluding in their abduction and torture.
A Council of Europe report in 2007 identified the company, a Boeing Corp. subsidiary, as the CIA's aviation services provider.
The Bush administration persuaded U.S. District Judge James Ware to dismiss the suit last year on the grounds that it would expose state secrets - the CIA's alleged relationship with a private contractor, the agency's methods of interrogating terror suspects and the alleged cooperation of foreign governments.
Wizner asked the appeals court Monday to reinstate the suit and said Ware should be able to protect any legitimate state secrets.
Letter countered that the core of the case - "their allegation that Jeppesen is complicit in a clandestine foreign intelligence matter" - could not be examined in court without endangering national security.
One member of the three-judge panel seemed skeptical.
"You can say something is secret even when a newspaper reporter has it?" Judge William Canby asked Letter. Even if the men had been snatched from the streets in Missouri, he said, "it would still be a big black hole. The plaintiffs, the judiciary, the Constitution all have to step aside."
Not so, Letter replied - Congress can still scrutinize the program, and judges can review the classified documents that explain the need for secrecy.