February 10, 2009 – Senator Russ Feingold is sharply criticizing the Obama administration over its controversial decision to maintain the Bush administration’s position in a closely watched lawsuit involving alleged victims of extraordinary rendition, a decision that generated a storm of criticism yesterday.
“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party.
The case has been closely watched as an early signal of how Obama would handle one of the Bush administration’s most controversial “war on terror” legal weapons – specifically, whether the Obama administration would uphold the Bush administration’s claims of state secret privileges, citing national security, to prevent courts from ruling on such matters. Feingold’s statement suggests he intends to maintain a controversial posture towards the White House on the issue.
Feingold’s office also confirmed that he is seeking a secret briefing on the case from the Obama administration – something that could put the administration on the spot and potentially ratchet up the confrontation.
“I have asked for a classified briefing so that I can understand the reasons for this decision,” Feingold’s statement said.
The case involves five men – one Guantanamo detainee, two jailed in Egypt and Morocco, and two free – who sued a subsidiary of Boeing called, Jeppesen Dataplan. They accused the company of helping the CIA fly them to other countries and CIA camps to be tortured, as ABC News put it.
The case was tossed out of court a year ago because of national security. Yesterday the appeal, which had been brought by the ACLU, was heard in the Ninth U.S. Circuit Court of Appeals.
ABC News, citing a source inside the court, reported yesterday that a Justice Department rep told the court that the Obama administration stood behind the previous administration’s case, with no ambiguity. The news infuriated civil liberties groups, who wanted the new administration to let the case continue.
But a spokesperson for the Justice Department, Matt Miller, defended the decision, telling ABC that the new administration would “invoke the state secrets privilege only when necessary.” He said it it wouldn’t be “invoked to hide from the American people information about their government’s actions that they have a right to know,” and said Attorney General Eric Holder was reviewing all state secret privilege matters.
But that’s unlikely to satisfy Feingold, who reiterated in his statement to me that he’s pushing for new legislation to “give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct.”
The current extraordinary rendition case is being taken by some critics as a hint that the new administration may prove to be insufficiently aggressive in reversing Bush-era legal justifications for certain aspects of what used to be called the “war on terror,” as well as the Bush administration’s use of “national security” as a shield against charges of general governmental wrongdoing.