Judges Appear Surprised as US Presses State Secrets Privilege

In a case closely watched for a preview of the Obama’s administration’s terrorism policies, a Justice Department lawyer invoked the state secrets privilege before a federal appeals court yesterday.

Bush administration lawyers had advanced the same argument to win dismissal of the case against Boeing subsidiary Jeppesen Dataplan, accused of flying terrorism suspects to overseas prisons for torture under an extraordinary rendition program by the CIA.

Assistant U.S. Attorney Douglas Letter had argued the case for the Bush administration, and he was back yesterday before a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals, the Daily Journal reports (sub. req.). Letter said the Justice Department under Attorney General Eric Holder had fully vetted and approved the state secrets claim, the story says.

"Judges shouldn't play with fire," Letter told the judges, according to an account in the San Francisco Chronicle. He said the core allegations in the case could not be examined without endangering national security.

The argument seemed to surprise the appeals panel, the New York Times reports. “The change in administration has no bearing?” Judge Mary Schroeder asked. Letter replied it did not.

The American Civil Liberties Union represented the plaintiffs, five men who claim they were flown to overseas prisons by Jeppesen. ACLU director Anthony Romero released a statement chastising the new administration for its position.

“This is not change,” he said. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue.”

Justice Department spokesman Matt Miller said the Obama administration would invoke the state secrets privilege “only when necessary and in the most appropriate cases.” He said Attorney General Eric Holder has ordered a review of all state secrets claims, according to the Associated Press and Reuters.