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On February 9, the Obama Administration announced that it would keep the same position as the Bush Administration on the lawsuit extraordinary rendition case: Mohamed et al v Jeppesen Dataplan, Inc.
The case involves five men who claim to have been victims of extraordinary rendition -- including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.
The case was thrown out last year on the basis of national security, but on February 9, the Ninth U.S. Circuit Court of Appeals heard the appeal, brought by the ACLU.
The ABC News quoted a court source as saying that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The Department of Justice lawyer said the entire subject matter remains a state secret.
Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.
The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured. The European Parliament condemned renditions as "an illegal instrument used by the United States."
An exhaustive investigation by the European Union concluded that the CIA had operated more than 1,200 flights in European airspace after the Sept. 11 attacks. The implication was that most were rendition-related, with some taking suspects to states where they faced torture.
In one of the most notorious instances, a German citizen named Khaled Masri was arrested in Macedonia in 2003 and whisked away by the CIA to a secret prison in Afghanistan. He was quietly released in Albania five months later after the agency determined it had mistaken Masri for an associate of the Sept. 11 hijackers.
Masri later described being abducted by "seven or eight men dressed in black and wearing black ski masks." He said he was stripped of his clothes, placed in a diaper and blindfolded before being taken aboard a plane in shackles -- an account that matches other descriptions of prisoners captured in the rendition program.
In another prominent case, an Egyptian cleric known as Abu Omar was abducted in Italy in 2003 and secretly flown to an Egyptian jail, where he said he was tortured. The incident became a major source of embarrassment to the CIA when Italian authorities, using cellphone records, identified agency operatives involved in the abduction and sought to prosecute them.
To the disappointment of civil right groups, the Justice Department is defending Bush administration decisions to keep secret many documents about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists.
According to Associated Press, in half a dozen lawsuits, Justice lawyers have opposed formal motions or spurned out-of-court offers to delay court action until the new administration rewrites Freedom of Information Act guidelines and decides whether the new rules might allow the public to see more.
In only one case has the Justice Department agreed to suspend a FOIA lawsuit until the disputed documents can be re-evaluated under the yet-to-be-written guidelines. That case involves negotiations on an anti-counterfeiting treaty, not the more controversial, secret anti-terrorism tactics that spawned the other lawsuits as well as Obama's promises of greater openness.
Civil right groups that advocate open government, civil liberties and privacy were overjoyed that President Obama on his first day in office reversed the FOIA policy imposed by Bush's first attorney general, John Ashcroft. Obama pledged "an unprecedented level of openness in government" and ordered new FOIA guidelines written with a "presumption in favor of disclosure." But Justice's actions in courts since then have cast doubt on how far the new administration will go.
According to Jonathan Turley, professor of law at The George Washington University Law School, the Obama Administration appears to be rushing to dispel any notions that Obama will fight for civil liberties or war crimes investigations. “After Eric Holder allegedly assured a senator that there would be no war crimes investigation and seemed to defend Bush policies, Harvard Law Dean Elena Kagan, Obamas Solicitor General nominee, reportedly told a Republican senator that the Administration agreed with Bush that we are at war and therefore can hold enemy combatants indefinitely. Lindsey Graham (R-S.C.) asked Kagan: Do you believe we are at war? I do, Senator, Kagan replied.”
Terrorism will continue for centuries. Will we remain at war with war time powers being exercised? Turley asked and added “since the Solicitor General is required to apply the law with precision, Kagan’s reply is extremely alarming.”
Graham then asked if our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield? Do you agree with that? Kagan replied I do. According to Turley with Kagan’s response Obama administration’s marriage with the Bush policies was complete.
