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Obama Admin. Stays Bush Course On Rendition Suit

In the ornate, marble walled Courtroom Number 1 of the Ninth Circuit Court of Appeal this morning, there was the promise of change. The famously liberal appeals court, observers knew, might be the place where a new liberal president lifted some of the secrets of the previous administration's war on terror.

Five men who say they were kidnapped by the C.I.A. and taken to overseas prisons where they were tortured and interrogated are asking the Ninth Circuit to give them a day in court. They are trying to sue a company called Jeppesen Dataplan, a subsidiary of Boeing, which they claim operated the flights that delivered them to foreign prisons. They say Jeppesen employees knew they were kidnapped and were likely to be tortured.

Their suit was thrown out of court a year ago when the Bush administration claimed that allowing the case to proceed would expose state secrets and threaten national security. Now the plaintiffs are asking the Ninth Circuit to reinstate the case.

The plaintiffs' attorneys from the American Civil Liberties Union were hopeful the Obama Administration would lift the government's claim of secrecy. That hope quickly died in court today when the Justice Department attorney began by stating there has been no change in the government's position - that it is the government's position that for the case to proceed would be a threat to national security.

"This was an early test of how far the Obama Administration is willing to go to rollback its predecessor's penchant for secrecy, and the answer is, 'not much,'" said CBS News legal analyst Andrew Cohen.

"The government simply doesn't want the courts evaluating its past rendition program even as it evaluates whether it wants to continue the program or limit it," he added.

After the hearing, the Justice Department in Washington released this statement:

"It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court's decision in Reynolds that the privilege not "be lightly invoked."

The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations.

"It is vital that we protect information that, if released, could jeopardize national security. But the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations."

CBS News' Cohen said the case was "never a close call legally."

"There is plenty of precedent supporting the government's assertion that its dark operations aren't subject to judicial review," he said. "And I would be shocked if the court rules against the Obama Administration here."

ACLU Attorney Ben Wizner, who argued the case for the plaintiffs, had this to say:

"We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration's practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court."

John Blackstone is a CBS News correspondent.

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