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?