Stafford Smith says, "This official secrecy is becoming increasingly ridiculous, and way out of line with what the public expects from their democratically elected government."
"The British people rightly expect to be able hold their government accountable for any wrongdoing, and this deliberate secrecy is preventing them from doing that. If this letter truly represents the view of the Obama Administration, why not reveal the author? Why are both governments so afraid of basic transparency in this matter?"
The back-story gets even more complicated.
In 2007, the American Civil Liberties Union filed a lawsuit in the U.S. on behalf of five men, including Mohamed, who claimed they were victims of rendition, torture and imprisonment without charge.
The suit charged that a company known as Jeppesen Dataplan, a Boeing subsidiary, helped the CIA to facilitate the renditions by providing it with support and logistical services. It charged that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to CIA aircraft and crews.
Lawyers for the Bush Administration intervened in the case in 2007, invoking the so-called "state secrets privilege." It argued that the suit could not go forward because it would involve presenting evidence that would compromise U.S. national security. The court agreed, and halted the suit.
The case bounced around on appeal until 2008, when the Ninth Circuit Court of Appeals heard arguments for and against going forward with the suit. Human rights advocates were shocked when Obama Justice Department lawyers declined to change the Bush-era position and followed the same road as its predecessor.
But the appeals court disagreed. In what may yet become a landmark decision, the judges finally ruled that the "state secrets privilege" - routinely used by the government to block lawsuits against its officials - can only be used to contest specific evidence, not to dismiss an entire suit.
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake," adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
Following the Appeals Court decision, Ben Wizner, a staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs, told me, "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court."
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the U.S. government would jeopardize national security secrets. But now it can no longer simply "assert" that privilege; it will have to convince a judge by arguing the point in court.
Meanwhile, as the Binyam Mohamed fire continues to burn out of control in the U.K., the Obama Administration is nearing completion of its review of use of the State Secrets practice. Obama says, "I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why."
The importance of telling us - and the British High Court - took on added significance yesterday, thanks to a Sunday New York Times piece by Eric Schmitt and Mark Mazzetti desribing how the U. S. is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan.