Obama DOJ to argue ‘state secrets’ case Monday

U.S. Attorney General Eric Holder. (Photo/Huffington Post)

U.S. Attorney General Eric Holder. (Photo/Huffington Post)

President Barack Obama and new Attorney General Eric Holder will face the first public test of their stated commitments to opening government and ending torture on Monday.

Since we first reported in January on the pending court case Mohamed v. Jeppesen Dataplan, there’s been growing pressure — both from advocacy groups and now also from the mainstream media — on the Obama administration to reverse the course pursued by its predecessor.

The case involves five victims of the Bush administration’s extraordinary rendition policies, who claim they were abducted abroad and sent to foreign countries to be interrogated under torture. With the help of the ACLU, the victims sued Jeppesen Dataplan, the Boeing subsidiary that allegedly helped the CIA carry out its policies. Although they didn’t sue the government, the Bush Justice Department intervened in the case and convinced the court to dismiss it, arguing that the very subject matter of the case — the CIA’s extraordinary rendition program — is a state secret, so allowing the victims their day in court endangers national security.

Last week The New York Times weighed in, calling the Bush administration’s argument that the entire case constitutes one big state secret “preposterous,” and urged Obama to “rethink the government’s position.”

“Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy,” wrote The Times’ editorial board. “That certainly does not fit principles that the new president has so often articulated.”

The Los Angeles Times’ editorial board agreed Friday, writing: “we hope the Obama administration lawyers will show up in court Monday and reject the approach of the previous administration, letting the case go forward.”

And a story on NPR’s “All Things Considered” Sunday also highlighted the case as a test of Obama’s promises for transparency. Ominously, former federal prosecutor David Laufman told NPR’s Ari Shapiro that if the administration hasn’t changed course yet, it’s not likely to do so tomorrow, before a three-judge panel in a federal court of appeals. “It would be pretty unorthodox for a Justice Department lawyer to stand up in court on Monday and for the first time tell the court that it is reversing course,” Laufman said.

If the signs so far aren’t encouraging, critics can take heart that bipartisan advocacy groups like the Constitution Project and a growing number of mainstream media outlets are watching this case closely, and seem intent on holding the new administration to its promises.

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Daphne Eviatar

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