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State Secrets. Still Secret.

So much for a perfect score. In a piece today, Judith Resnik and I came up with a top 10 list of Bush legal positions that Obama's Department of Justice should drop. No. 5 was the "state secrets" defense, as invoked by Bush lawyers to block a lawsuit by five men who say the U.S. tortured them abroad. The old DoJ argued that the "very subject" of the case—against the private contractor (Jeppesen Dataplan) that flew the men to their foreign destination—is a state secret, and so walled off from any investigation connected to the lawsuit. Today in court, Obama's new DoJ stuck with that line. “The change in administration has no bearing?” Judge Mary Schroeder of the 9th Circuit asked, with apparent surprise. "No, your honor," the lawyer answered.

At the Atlantic, Marc Ambinder shrugs. "Obama certainly never promised Americans that he'd declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever," he reminds us. Well, no. But there's a weird disconnect here, since many of the relevant facts in this case are already known, thanks to reporting by The New Yorker's Jane Mayer and others. As ACLU lawyer Ben Wizner said, "the only place in the world where the facts of these claims can't be discussed is in this courtroom." More crucially, the state-secrets defense doesn't just mean that a judge decides what evidence to keep classified and out of public view. It means that based on the government's say so, no one even gets to open the lid of the box to find out what evidence is inside. Not even the judge. It's a blanket defense designed to halt potentially legitimate claims in their tracks. To add insult to injury, the Supreme Court fashioned it to preserve secrets in a 1953 case—about why an Air Force flight went down in the state of Georgia—in which the government's professed reason for secrecy turned out to be completely bogus. 

As his department's lawyer held the Bush line in court today, Attorney General Eric Holder promised a review of all the government's uses of the state-secrets privilege, "to ensure that is being invoked only in legally appropriate situations." Maybe at some point down the line, that will seem reassuring. But at the moment, Holder's promise plus today's developments in court equals not much.