By Anne Lowe

OPEN GOVERNMENT -- Ruling in San Francisco, the United States Court of Appeals dismissed a case filed by the American Civil Liberties Union today, citing national security as the reason it would not be heard.


The lawsuit was filed on behalf of five former prisoners who alleged they were tortured while in the custody of the C.I.A. The lawsuit targeted Jeppesen Dataplan Inc., who arranged the flights that transferred the prisoners to other countries for interrogation.

The 6-to-5 decision favored the Obama administration’s position that evidence entered into the case would expose state secrets, though the court acknowledges in its decision that the case represents “a painful conflict between human rights and national security,” the New York Times reports.

Prior to and including this case, the Bush administration had invoked the State Secrets privilege multiple times to have lawsuits thrown out of court; President Obama was highly critical of the Bush administration’s use of the privilege during his campaign, as the Times explains:

While the alleged abuses occurred during the Bush administration, the ruling added a chapter to the Obama administration’s aggressive national security policies.

Its counterterrorism programs have in some ways departed from the expectations of change fostered by President Obama’s campaign rhetoric, which was often sharply critical of former President George W. Bush’s approach.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.

Glenn Greenwald of Salon.com offers an insightful look inside the State Secrets privilege and why the Bush administration’s use of it was widely considered abusive. Greenwald also explains why Obama’s use of the privilege in this case echoes that of former President Bush.

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  That is the theory that caused the bulk of the controversy when used by the Bush DOJ -- because it shields entire government programs from any judicial scrutiny -- and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama). 

The State Secrets Protection Act and similar legislation have been introduced in the House and Senate as recently as Feb. 2009, but none have left their houses of origin. The bills aimed to eliminate the use of the State Secrets privilege in dismissing lawsuits before they are heard and instead to establish the use of the privilege in barring certain evidence introduced into cases.