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Civil liberties experts say ongoing cases related to torture and rendition are testing the Obama administration’s assertion it will be more open and transparent than the Bush administration.
Since taking office on January 20, President Barack Obama has extended Bush-era secrecy over documents authorizing waterboarding and other controversial interrogation techniques, and has resisted an appeal by a terrorism suspect seeking to challenge his arrest and detainment.
"It’s not the clean break that people were looking for," said Steven Aftergood, who heads the Federation of American Scientists Project on Government Secrecy. "It’s also not the last word."
Obama has been in office less than a month and several Department of Justice appointees have not yet been confirmed.
But rights groups are already worried Obama will not live up to campaign promises to create a transparent government in contrast to the secrecy of George W. Bush.
On Wednesday, the administration was scheduled to argue in Manhattan federal court for a 90-day grace period to review three memos by former Bush legal council Steven Bradbury, which Bush administration officials refused to release on national security grounds.
The American Civil Liberties Union first demanded the documents in a Freedom of Information request five years ago, and the Bush administration had refused on national security grounds.
According to a 2007 article in the New York Times referenced by the ACLU, the memos provided "explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics," including "simulated drowning."
The group opposed the extension as excessive and the two sides reached a compromise on the eve of the hearing, allowing the administration 30 days to respond.
In a separate case brought by the Center for Constitutional Rights, the administration asked for extra time to respond to a request for documents relating to extraordinary rendition and coercive interrogation.
On Wednesday, a federal judge ruled the administration could have 60 days, rather than the 90 days it requested.
"I think it’s premature to say that they’re reluctant to release them," said Jameel Jaffer, the lead attorney on the ACLU case. "I think it is promising that the Obama administration has decided to revisit the withholding of the memos."
But, he added, a refusal to release the documents would be "a breach of the promises that President Obama made with respect to transparency."
No less troubling to civil liberties groups has been a move in two other cases to concur with legal arguments made by Bush administration officials.
The Obama Justice Department has moved to dismiss or delay a lawsuit by Mohammed Jawad — a teenage prisoner at the Guantanamo Bay prison who says he was detained unlawfully after being tortured.
And last week, the Justice Department told an appeals court it concurred with a Bush administration argument that a lawsuit by former detainees who say they were subject to extraordinary rendition and then tortured should be thrown out in its entirety because the case relies on "state secrets."