San Francisco Chronicle Editorial – 2009-02-15 23:57:48

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/02/14/EDV315T0K0.DTL

February 14, 2009) — In one of his first acts as attorney general, Eric Holder made the right move in asking for a review of all litigation where the Bush administration invoked the “state secrets” clause. So why did he then turn around and invoke the same “state secrets” privilege as Bush did in a case in San Francisco this week?

It is impossible to overstate the importance of a thorough review of the Bush-era “state secrets” privilege. This clause is extremely powerful – it essentially allows the White House to protect itself from the Third Branch, the judiciary. The Bush administration used it to block lawsuits on warrantless wiretapping and the treatment of foreign terrorism detainees.

The case of Binyam Mohammed, a British resident, shows just how serious this question is. In his court papers, Mohammed claims that he was flown from Pakistan to Morocco on an aircraft registered with the Federal Aviation Administration. In Morocco, he was held for 18 months – where authorities routinely beat, drugged and sexually abused him. Mohammed is now imprisoned at Guantanamo Bay, and it was his case that the San Francisco court was hearing this week. He has sued Jeppesen DataPlan, the Boeing unit that flew him to Morocco as part of the CIA’s “extraordinary rendition” plan.

The Bush administration invoked state secrets to keep the Mohammed case from going forward, and the Obama administration has followed its example. The Justice Department’s decision is bewildering, especially as it came the day after Holder pledged a review. Does the Obama administration know something that the rest of the world does not about this highly publicized case? Or is Obama reneging on one of his crucial campaign promises this early?

Until Obama officials start explaining, we have to draw the latter conclusion. While it’s true that the administration is new to the lawsuit – incoming CIA director Leon Panetta was only confirmed this week – there’s no reason it could not have simply asked for a delay to reconsider the government’s position on the case.

This is a troubling start for the new Justice Department. Obama promised that his administration would be accountable to the laws that the Bush administration ignored. With the Mohammed case, he’s choosing expediency over honesty.

© 2009 Hearst Communications Inc.