WILL OBAMA ASSERT THE STATE SECRETS PRIVILEGE?

The ACLU is arguing for the plaintiff in an important appeal today in the case of Mohamed et al. v. Jeppesen, in front of the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The case is being brought on behalf of five men who say they were transferred to secret CIA prisons or foreign intelligence agencies where they were interrogated under torture. One of the plaintiffs is Binyam Mohamed, the plaintiff in a case in Britain where the U.S. requested that the British government redact information pertaining to his interrogation by U.S. authorities. Two British judges allege they were "threatened" with an end to intelligence cooperation with the United States, but the Telegraph has advanced the far more plausible view that British authorities might be implicated and therefore Britain has the same "interest" as the United States in keeping the details of Mohamed's interrogation secret. In both cases, the Obama administration, like the Bush administration, has asserted the state secrets privilege to prevent the details of Mohamed's interrogation from being made public.

Mohamed et al. v. Jeppesen is a civil case, the plaintiffs are suing a subsidiary of aircraft maker Boeing for assisting the CIA in renditions. It's obviously one thing for the Obama administration not to pursue criminal prosecution against agents of the U.S. government who believed that they were acting within the law, it's another entirely to protect private companies from civil litigation based on their participation in illegal activities. If there is literally no recourse in civil or criminal court for the victims of the United States illegal behavior, that removes an important incentive to follow the law in the future. 

-- A. Serwer