An appallingly bad day for the rule of law

WASHINGTON – A sharply divided federal appeals court on Wednesday dismissed a lawsuit involving the Central Intelligence Agency’s practice of seizing terrorism suspects and transferring them to other countries for imprisonment and interrogation. The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power.

By a six-to-five vote, the United States Court of Appeals for the Ninth Circuit, reversing an earlier decision, dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the C.I.A.’s “extraordinary rendition” program, as it is known. The American Civil Liberties Union filed the case on behalf of five former prisoners who say they were tortured because of the program – and that Jeppesen was complicit in their treatment.

Judge Raymond C. Fisher described the case as presenting “a painful conflict between human rights and national security.” But, he said, the majority had “reluctantly” concluded that the lawsuit represented “a rare case” in which the government’s need to protect state secrets trumped the plaintiffs’ need to have any day in court.

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

Among other policies, the Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program – though the administration says it now takes greater safeguards to prevent detainees from being mistreated.

The American Civil Liberties Union swiftly said it would appeal the ruling in the Jeppesen Dataplan case to the Supreme Court, presenting the Roberts Court with a fresh opportunity to weigh in on a high-profile case testing the scope and limits of presidential power when it comes to countering terrorism.

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Let their be no doubt. We live in a country where the government can do what it wants, to who it wants, whenever it wants; because it is the government. The rule of law is, if not quite dead, at least on life support.