What Glenn Greenwald Said On American Terrorism Cowardice

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Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

Revisiting the al-Harithi/Derwish Assassination

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I wanted to expand on this comment, because the discussion of whether Anwar al-Awlaki is on both the JSOC and CIA kill lists or not has focused new attention on the assassination, on November 3, 2002, of Abu Ali al-Harithi and Kamal Derwish.

Greg Miller mentions the assassination in his story today.

The CIA has carried out Predator attacks in Yemen since at least 2002, when a drone strike killed six suspected Al Qaeda operatives traveling in a vehicle across desert terrain.

The agency knew that one of the operatives was an American, Kamal Derwish, who was among those killed. Derwish was never on the CIA’s target list, officials said, and the strike was aimed at a senior Al Qaeda operative, Qaed Sinan Harithi, accused of orchestrating the 2000 attack on the U.S. destroyer Cole.

Dana Priest mentions the assassination in her story on escalated operations in Yemen.

In November 2002, a CIA missile strike killed six al-Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organizer of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car.

And ABC mentions it as well.

An American citizen with suspected al Qaeda ties was killed in Nov. 2002 in Yemen in a CIA predator strike that was aimed at non-American leaders of al Qaeda. The death of the American citizen, Ahmed Hijazi of Lackawanna, NY, was justified as “collateral damage” at the time because he “was just in the wrong place at the wrong time,” said a former U.S. official familiar with the case.

Now, all of these articles were written by journalists with long experience in intelligence reporting, so all must know this detail. Still, I find the inclusion of it in all three stories (including Priest’s, in which the focus is on Yemen, rather than assassination) rather notable. Is it possible that all the guys leaking this story have pointed the journalists to the earlier assassination?

I ask because–for starters–I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks later in November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD’s comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.

LAT: The CIA Hasn't Yet Added al-Awlaki to its Kill List

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The most interesting thing about Greg Miller’s story on whether Anwar al-Awlaki has been added to the CIA’s list of assassination targets is how it differs from the two stories already written on this subject. Miller says that al-Awlaki has not yet been added to the list.

No U.S. citizen has ever been on the CIA’s target list, which mainly names Al Qaeda leaders, including Osama bin Laden, according to current and former U.S. officials. But that is expected to change as CIA analysts compile a case against a Muslim cleric who was born in New Mexico but now resides in Yemen.

Anwar al Awlaki poses a dilemma for U.S. counter-terrorism officials. He is a U.S. citizen and until recently was mainly known as a preacher espousing radical Islamic views. But Awlaki’s ties to November’s shootings at Ft. Hood and the failed Christmas Day airline plot have helped convince CIA analysts that his role has changed.

That accords with what ABC reported on January 25.

White House lawyers are mulling the legality of proposed attempts to kill an American citizen, Anwar al Awlaki, who is believed to be part of the leadership of the al Qaeda group in Yemen behind a series of terror strikes, according to two people briefed by U.S. intelligence officials.

One of the people briefed said opportunities to “take out” Awlaki “may have been missed” because of the legal questions surrounding a lethal attack which would specifically target an American citizen.

But not with what Dana Priest wrote on January 27.

Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added. [Update, February 17, 2010: WaPo has since retracted the report that CIA had US citizens on its kill list.]

I’d suggest Priest’s initial focus on JSOC (though Miller, too, confirms that al-Awlaki is on JSOC’s list) may explain this flurry of articles describing the government’s ultra-secret kill list(s). That is, Priest’s focus on JSOC may suggest the long-brewing turf war between JSOC and CIA on such issues is bubbling up to the surface. That also might explain the spin of the other two article. ABC’s article seems designed to force someone’s hand by painting the CIA as incompetent for missing al-Awlaki in the past. And it might explain CIA spokesperson Paul Gimigliano’s snippiness about the public nature of this debate.

CIA spokesman Paul Gimigliano declined to comment, saying that it is “remarkably foolish in a war of this kind to discuss publicly procedures used to identify the enemy, an enemy who wears no uniform and relies heavily on stealth and deception.”

Now, whatever the differences in the article Miller doesn’t appear to have asked some of the obvious questions any more than Priest or ABC. If we haven’t even tried indicting al-Awlaki yet (particularly with all the increased presence we’ve got in Yemen to pick him up), then how do we have enough information to assassinate him? And why didn’t our vaunted surveillance system pick up this apparently growing threat from al-Awlaki?

As to what new information has come up to merit al-Awlaki’s placement on the kill list (whether CIA’s or JSOC’s)?

But it was his involvement in the two recent cases that triggered new alarms. U.S. officials uncovered as many as 18 e-mails between Awlaki and Nidal Malik Hasan, a U.S. Army major accused of killing 13 people at Ft. Hood, Texas. Awlaki also has been tied to Umar Farouk Abdulmutallab, the Nigerian accused of attempting to detonate a bomb on a Detroit-bound flight.

At least on first report, the emails were not sufficiently damning to concern the FBI. Has that changed? And the phrase “Awlaki has been tied”–you’re going to put someone on a kill list using a passive construction? Really?

OPR Report Altered To Cover Bush DOJ Malfeasance

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dbamericasafeMike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected. However, digesting the first leak in what would appear to be a staged rollout is painful:

…an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The news broken in the Newsweek Declassified post is huge, assuming it is accurate, and the sense is that it is. In spite of the weight of the report, the report tucks the substantive content behind the deceptively benign title “Holder Under Fire”. The subject matter is far too significant though for it to have been casually thrown out. Consider this description of the OPR finding on the nature and quality of the critical August 1, 2002 Torture Memo:

The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

Hard to figure how this finding and conclusion could be determined by David Margolis to warrant the “softening” of the original finding of direct misconduct. Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides.

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

One thing is for sure, with a leak like this being floated out on a late Friday night, the release of the full OPR Report, at least that which the Obama Administration will deem fit for the common public to see, is at hand. Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though. So we got that going for us.

An Interesting Few Days for Al-Awlaki

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Earlier today, bmaz and I asked a series of questions about the significance of Anwar al-Awlaki’s name on the list of US citizens who can be assassinated with no due process.

bmaz: So, the US can put Awlaki on a list for death by assassination, but couldn’t, and apparently still cannot, form the basis to prosecute him criminally??

ew: And cannot prosecute him having had a tap on his phones going back–at the very least–at least a year?

ew: I wonder if [the targeting of Awlaki] is what happened to the William Webster inquiry into Awlaki’s communications with Nidal Hasan?

Today, Declassifed blog’s Mark Coatney asked a related question that I had earlier raised: Why was the Administration, immediately, so chatty about the Underwear Bomber, even while it remains very close-lipped about Nidal Hasan? (The Administration–though not, apparently, Webster–was supposed to brief the Intelligence Committees on the Hasan investigation today, which I guess makes it safe to assume Dana Priest’s article came up in the briefing, if Congress didn’t already know about the assassinations of American citizens.)

Capitol Hill officials say that the Obama White House and relevant government agencies have been very cooperative in supplying congressional oversight committees with a torrent of information—both raw intelligence and law-enforcement material and results of internal administration inquiries—about alleged would-be Christmas Day underpants airplane bomber Umar Farouk Abdulmutallab. President Obama and other senior administration officials have said that in the months before Abdulmutallab boarded his flight from Amsterdam to Detroit, U.S. agencies had collected various “bits and pieces” of intelligence, which, had they been properly knitted together, might well have enabled U.S. authorities to foil Abdulmutallab’s attempted airplane bombing before he boarded his flight.

By contrast, the same officials allege that the administration has been relatively tightfisted with information, both from raw intelligence and law-enforcement files and from postmassacre investigations, on the background of the accused Fort Hood shooter. Congressional officials say they don’t know why the administration has been more reticent about Fort Hood than about the failed underpants attack, but that the contrast between how the cases have been treated up until now has been striking.

I’m glad I wasn’t the only one noticing the disparity in treatment of the two extremists.

More interesting than the confirmation that I’m not crazy in seeing the disparity, though, is the timeline revealed in several recent details on Al-Awlaki.

December 17, 2008: Nidal Hasan sends first email to al-Awlaki “asking for an edict regarding the [possibility] of a Muslim soldier killing his colleagues who serve with him in the American army”

November 5, 2009: Hasan killings in Ft. Hood

November 8, 2009: Al-Awlaki blesses Hasan’s killings

November 19, 2009: Underwear Bomber Umar Farouk Abdulmutallab’s father alerts US embassy of his concerns about his son

December 4, 2009:  Abdulmutallab leaves Yemen, having met with al Qaeda Arabian Peninsula members, possibly including al-Awlaki

December 22, 2009: FBI Deputy Director John Pistole provides classified briefing to Senate Homeland Security Committee on Fort Hood

December 23 (?), 2009: Al-Awlaki does interview with al-Jazeera that is subsequently posted to many jihadi forums

December 24, 2009: Strike in Yemen mistakenly thought to have hit al-Awlaki

December 25, 2009: Abdulmutallab attempts to blow up plane outside of Detroit

December 26, 2009: Crazy Pete Hoekstra says there may have been ties between al-Awlaki and Abdulmutallab

After December 24 but before end of 2009: Al-Awlaki added to JSOC list of those to be killed or captured

December 29: Moonie Times reports that al-Awlaki blessed Abdulmutallab’s plot beforehand (based on intelligence source)

If you match this timeline with the assertion that Awlaki had some tie with Abdulmutallab and that he was placed on the assassination list(s) just after Abdulmutallab’s attempted attack, then it seems clear that, after al-Awlaki’s ties to Hasan became clear, and after the attempted attack in Detroit, the Obama Administration almost immediately placed him on the list. Read more →

The List of US Citizens Targeted for Killing (or Capture)

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This Dana Priest article is interesting for the way it fleshes out the way the US is working in Yemen (primarily), Pakistan, and Somalia. But note this line, which she kind of buries in there.

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. [my emphasis]

That is, somewhere there’s a list of Americans who, the President has determined, can be killed with no due process.

Priest goes on much later in the article.

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”

Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added. [Update, February 17, 2010: WaPo has since retracted the report that CIA had US citizens on its kill list.]

Of course, they said Jose Padilla had close ties to al Qaeda, but those turned out to be more tenuous than originally claimed. Likewise the case against John Walker Lindh. And there are any number of “aspirational” terrorists whom officials have claimed had joined al Qaeda.

But I guess the tenuousness of those ties don’t really matter, when the President can dial up the assassination of an American citizen.

Brandon Mayfield Gets Hosed By The 9th Circuit

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As Fatster noticed, the Ninth Circuit has ruled against Brandon Mayfield on his attempt to hold the PATRIOT Act declared unconstitutional under the Fourth Amendment.

Mayfield was a former suspect in the 2004 Madrid train bombings. After the Madrid bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The SNP submitted digital photographs of the fingerprints to Interpol Madrid, which subsequently transmitted them to the FBI in Quantico, Virginia. The FBI searched fingerprints in its system and, among other possibilities, produced Mayfield, an US citizen and lawyer from the Portland Oregon area, as an alleged match. FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. The FBI also applied to the Foreign Intelligence Security Court (“FISC”) for authorization to surreptitiously place electronic listening devices in the Mayfield family home; searched the home while nobody was there; obtained private and protected information about the Mayfields from third parties; searched Mayfield’s law offices; and placed wiretaps on his office and home phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.

The Spanish SNP, however, looked at the FBI evidence and found it lacking evidentiary credibility. In spite of this fact, the FBI submitted an affidavit to a US Federal court, stating that experts considered the identification of Mayfield 100% positive, intentionally failing to advise that the SNP had reached a diametrically opposite conclusion. As a result, Mayfield was arrested and held on a material witness warrant, and the public informed of his identity and supposed involvement in the bombings. Over two weeks later, the SNP conclusively matched the fingerprint to an unrelated Algerian citizen and Mayfield was absolved. Mayfield sued the US Government under numerous theories including that the PATRIOT Act was unconstitutional under the Fourth Amendment. The government, being in an egregiously bad position, settled with Mayfield and even allowed the unusual provision that he could maintain the Fourth Amendment challenge to PATRIOT, but could only obtain declaratory relief, not monetary damages.

Mayfield pressed his complaint seeking a declaration that PATRIOT was unconstitutional under his stipulated facts, and the District Court of Oregon, in denying the government’s motion to dismiss and granting Mayfield’s motion for summary judgment, agreed with Mayfield and ruled in his favor. The government appealed to the 9th Circuit arguing that the trial court had no jurisdiction because Mayfield had already been compensated, that the court erred in finding PATRIOT unconstitutional and that other matters, in totality, placed the matter outside of the court’s power to award redress. These arguments were proffered by the government in spite of it having knowingly and specifically agreeing that Mayfield intended to raise and argue said issues and agreeing in their unusual settlement agreement to let him do so.

The usually enlightened 9th Circuit, this time took it upon itself to contrive and contort a way Read more →

Yoo to OPR: Law is “Largely Irrelevant”

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(Mary has graciously tutored many of us here about the significance of the Civil War case, Ex parte Milligan, to contemporary debates about detention (see also here and here and here). So when I saw that John Yoo had written an article trying to explain why he’s been ignoring Milligan all these years, I asked Mary to rip the article to shreds. She does not disappoint.)

The hugely relevant (at least, in the context of a completed but unreleased Office of Professional Responsibility investigation) John Yoo has taken to the heavily trafficked pages of the Chapman Law Review to pursue his personal war – on law. In his piece titled, Lincoln and Habeas: Of Merryman, Milligan, and McCardle Yoo utilizes the resources of Boalt Hall and Chapman to finally find and discuss the Civil War case of Ex parte Milligan; a case which managed to elude Yoo during his time spent writing memos for the Office of Legal Counsel. Yoo chooses the cases of Ex Parte Merryman and Ex Parte McCardle to bookend his claims of the “irrelevance” of Milligan, and of law in general, during times of war.

Before we even get to that discussion, though, here’s a heads up.

A few facts and at least one important contemporaneous case – Ex parte Yerger – are as mysteriously missing from Yoo’s law review article as Milligan was from his OLC opinions. On the other hand, when your central argument is that case law means nothing, perhaps it is no flaw to fail to include relevant and contemporaneous case law.

Yoo’s argument (to OPR, the Supreme Court, state bars, and courts where claims against him for his role in torture are now pending) goes pretty much like this: Lincoln didn’t always follow the letter of the law and he “got away” with it. Ich bin ein Lincoln.

In essence Yoo claims that, when the courts try to impose law on the Executive branch, both the President and Congress will respond by disenfranchising and enfeebling the courts, so if courts know what is good for them, they’ll butt out. Read more →

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more →

9th Circuit Will Rehear Jeppesen Suit

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This will be a very significant showdown for the Constitution. The 9th Circuit will rehear the government’s argument in the Jeppesen Dataplan suit. From the ACLU:

A federal appeals court today announced that it will hear the government’s appeal of an earlier ruling that allowed an American Civil Liberties Union lawsuit to go forward against a Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful “extraordinary rendition” program. The government claims that allowing the case to be heard would endanger national security.

In April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The lawsuit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these men to detention and interrogation. The Bush administration had intervened, improperly asserting the “state secrets” privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the “state secrets” privilege with respect to specific evidence, not to dismiss the entire suit. The Obama administration’s appeal of that decision will be heard by an “en banc” panel of 11 judges.

Whichever way the 9th (re)decides, I presume this is headed for Anthony Kennedy’s lap. How can Obama continue to hide all of Bush’s secrets, after all, if he’s only allowed to hide the pieces that are actually classified?