The upshot: the administration is signaling that they're ready to take their arguments about the scope of the privilege to the U.S. Supreme Court. In April, an appeals panel for the ninth circuit ruled that the ALCU's lawsuit against the airline data company could begin the discovery phrase, rejecting the government's argument that the risk of disclosing harmful information was too great to allow the case to be heard in open court -- or in any type of court. Jeppesen helped the CIA plan its transfer of detainees to countries that later tortured them.

The Obama administration inherited the case from the Bush administration; privately, they argue that defending the sanctity of the privilege is necessary because if they relent, the privilege itself will be weakened, even as they concede that it has been used to prevent the disclosure of possibly illegal conduct by the former administration. In this case, the three-judge panel told the administration to assert the privilege during the discovery phase for whatever evidence it believed would jeopardize national security if disclosed to the defense. The government wants the ability to use the privilege to dismiss the entire case before it reaches the phase where specific evidence is exchanged and argued about. President Obama told reporters two months ago that he supported a more limited assertion of the privilege.

Mohamed et al. v. Jeppesen was brought on behalf of five detainees -- Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah -- all of whom contend that Jeppesen is complicit in their torture.