At the same time, Justice Department officials in Washington pledged to
review all cases in which the Bush administration invoked the right to protect
state secrets and pledged to ask for secrecy "only in legally appropriate
The Obama administration's assertion of the so-called state secrets
privilege in a San Francisco courtroom -- the first instance since President
Obama took office -- reflected the continuing debate among national security and
Justice officials about what clandestine operations should be shielded from
The randomly drawn appeals court panel, consisting of three Democratic
appointees, appeared skeptical of the government's claims."I can understand the
government saying we have secrets and you the court can't pry them open," said
Judge William C. Canby Jr., a Carter appointee. But noting that disclosure of
rendition details has been made in other litigation, Canby said of the Jeppesen
case, "So what?"
The American Civil Liberties Union, which brought the suit on behalf of the
five terrorism suspects, told the 9th Circuit panel that there was no basis for
branding the entire case secret and urged the judges to allow trial.
ACLU lawyer Ben Wizner said foreign governments have been "very open" about
their roles in the covert operations. By permitting a trial, "the court is not
exposing the government to any harm," he told the judges.
"The notion that you must close your eyes and ears to what the whole world
knows is absurd," Wizner said.
A federal trial judge ruled in favor of the Bush administration last year
and dismissed the suit. The ACLU appealed to the 9th Circuit, arguing that the
men should be given the opportunity to prove their case without classified
At one point during the hearing, Judge Michael Daly Hawkins, a Clinton
appointee, told the government's lawyer that he was not convincing.
"So any time the executive branch of the government says the fact is
classified, it means it cannot be examined?" Hawkins asked Letter.
Letter, noting that national security was at stake, told the court it
should "not play with fire" by permitting the suit to go forward.
"Nor should the government in asserting [secrecy] privilege," Hawkins shot
Judge Mary M. Schroeder, a Carter appointee, said the court had not yet
read the classified information about the government's case and noted that the
law "may really preclude" the court from permitting the case to go to
A ruling is not expected for several weeks.
You think Obama will change his mind in a few weeks?