Dahlia Lithwick in Slate:
Obama has tapped for the most senior positions in his Justice Department people who have been outspoken critics of the Bush administration's extreme and secretive arrogation of powers; people like Eric Holder, Dawn Johnsen, Martin Lederman, and David Barron. This, perhaps more than any single action on Obama's part, has signaled how serious he is about capping the last administration's geyser of President-Is-King nonsense.
How then, is it possible that Obama's Justice Department chose to stay the course on one of the most embarrassing legal theories advanced by the Bush administration—the so-called state-secrets privilege? If you're going to cling to any aspect of the “war on terror,” wouldn't it make sense to choose a power that could arguably forestall future terror attacks (like coercive interrogation) rather than the utterly bogus argument that courts are not fit to scrutinize government wrongdoing?
Yet in a San Francisco courtroom Monday, that is precisely what the new Justice Department did. Administration lawyers held to the Bush line of using the state-secrets privilege to urge the 9th Circuit to block a civil suit filed by five foreign detainees against Jeppesen Dataplan, a Boeing subsidiary. This suit was filed by the ACLU in 2007 on behalf of the five detainees and dismissed by a district court last February. The ACLU was hoping to reinstate the suit, which alleges that Jeppesen contracted with the CIA to fly detainees to countries where they were tortured under the CIA's “extraordinary rendition” program. The abuse these men describe in their court papers is appalling. Allegations have recently surfaced in the British papers that one of the detainees, Binyam Mohamed, had his “genitals . . . sliced with a scalpel.”