...here is Obama, the very first chance he gets, invoking exactly this doctrine ['state secrets'] in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs--even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.
As Wizner [of the ACLU, who is representing the 5 plaintiffs in this case] said: "For one thing, the idea you alluded to, the facts of this story are absolutely well-known, have been the front pages of the New York Times and Washington Post, are in books, and all of these stories are based on CIA and other government sources, that essentially said, well, in this case we got the wrong guy. So the position of the Bush administration, accepted by conservative judges in that case, really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom...[Jeppesen] were essentially the CIA's torture travel agents. They were the one who arranged all the overflight rights for the CIA civilian planes to be able to fly from country to country. They handled the security and the logistics. They filed dummy flight plans to try to trick air traffic controllers into not being able to track where the actual flights were going. And we know they knew what they were doing because we have a witness in our case, someone who's given us a sworn declaration, who was an employee of Jeppesen DataPlan, and who was present when senior officials of the company were openly boasting about their role in the torture flights, and about how much money they made from them because the CIA spared no expense. We were able, with the help of an investigative journalist and other documentary evidence, to link Jeppesen to an number of very specific CIA rendition flights, involving these five torture victims who were flown to countries like Egypt, Morocco, to CIA sites in Afghanistan and eastern Europe...[Plaintiff Ahmed Agiza] was picked up off the streets of Stockholm and then he was taken to an airport where a CIA rendition team--this is a bunch of men dressed all in black, with their faces covered--sliced off all of his clothes, put a suppository into him, chained him to the floor of an airplane, flew him to Egypt, where he was exposed to absolutely brutal torture, including shock treatment, all kinds of beatings. He was then given a show trial in an Egyptian military court and sentenced to 15 years for involvement in a banned organization. His has been an extremely well-documented case; it's been in books by Seymour Hersh and others. The UN has investigated this; the Swedish government has investigated this case...So there's no real secret involved here. Nothing would be revealed by allowing Agiza to go forward in a case against the CIA, because Jeppesen's role is public, because Sweden's role is public, and because Egypt's role is public--he's in an Egyptian prison right now."
...The entire claim of 'state secrets' in this case is based on two sworn Declarations from CIA Director Michael Hayden--one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation--the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?
What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush's secrecy architecture in place, it ensures that any future President--Obama or any other--can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.
