Jeppesen DataPlan, an entity known to anyone familiar with aviation, helped the U.S. government plan flights and logistics for its extraordinary rendition program in the earlier part of this decade. A lawsuit brough by five men who say they were unlawfully rendered to torturing countries was dismissed by a judge who agreed with the Bush Administration's claim of a state secrets privilege. Civil rights activists had hoped that the Obama Administration would somehow change its mind at appeal, and argue the case on its merits in open court. That's not going to happen. Today, the Justice Department -- the Eric Holder / Obama Justice Department -- re-asserted the state secrets privilege in Mohamed et al. v. Jeppesen. This may be disappointing to civil libertarians, but it shouldn't be surprising.
The case is fairly straightforward, and some of the classified details, like what Jeppesen did for the government, are known, having been disclosed by Jane Mayer and others. The CIA used Jeppesen's unit to coordinate the complex travel arrangements that extraordinary rendition implies; which airports would be available when; how to schedule pilots; fuel requirements, etc. Jeppesen would therefore have access to a lot of data that's not in the public domain, including how many renditions there were, which countries were used as transit points -- CIA Black Sites -- and which countries were rendition partners, whether they tortured or not. Jeppesen ostensibly has a lot of information about countries to whom the U.S. legally renders suspects. We know a lot about this stuff, but we don't know everything.
It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.) Obama certainly never promised Americans that he'd declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever.
According to the Justice Department, AG Holder is reviewing all state secrets claims to make sure they meet certain legal tests.
The ACLU is outraged. Executive Director Patrick Romero said that "[c]andidate 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. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."