President Obama swept into the White House promising “change you can believe in.” But some Obama supporters and human rights experts are beginning to wonder how much change is in store, particularly in the new administration’s emerging antiterror policies.

In both his campaign speeches and the executive orders issued shortly after his inauguration, Mr. Obama raised expectations of a swift and substantial shift away from controversial Bush administration tactics. He has ordered Guantánamo shut down, secret CIA prisons closed, and torture banned.

But at the same time he has established committees to study a range of options, including the possibility of continuing to use harsh interrogation tactics under certain circumstances.
Analysts are watching several pending legal cases to see which Bush administration policies the new president jettisons and which ones he embraces.

Many Obama supporters were shocked Monday when the administration refused to abandon a Bush administration assertion of the “state secrets” privilege in a lawsuit charging that the US government sent suspected terrorists to foreign locations to be tortured. The lawsuit was filed against an air carrier that allegedly flew the suspects to and from the torture sites.

The state secrets doctrine allows judges to short-circuit certain litigation when the judge determines that it involves highly sensitive government information which, if disclosed, would damage US national security. Critics say the Bush administration used the privilege to avoid embarrassment and judicial scrutiny. Supporters say the privilege is needed to keep secrets and protect the ability to gather intelligence.

A federal judge threw the case out, honoring the Bush administration’s invocation of the state secrets privilege. The plaintiffs took their appeal to the Ninth US Circuit Court of Appeals in San Francisco, where one judge on the panel expressed surprise that the Justice Department under Obama was continuing to argue that the case be thrown out of court.

“That was a huge disappointment,” says Jennifer Daskal, a terrorism policy expert at Human Rights Watch. “It is inconsistent with the commitment to transparency and openness promised by the new administration.”

The case of Binyam Mohammed

In a similar episode, the British High Court recently refused to release key details about the alleged rendition and torture of a British subject named Binyam Mohammed. Mr. Mohammed, a detainee at Guantánamo, is one of five plaintiffs in the San Francisco case, but he also has a legal challenge under way in London seeking full disclosure of his treatment as a US detainee.

Mohammed’s lawyers say he was sent secretly by the US to Morocco where an interrogator beat him and used a razor to make cuts on his penis. The interrogator repeated this treatment during an extended period of time while questioning him about his alleged association with Al Qaeda, his lawyers say.

The British High Court had sought to disclose certain details and documents related to the case, in part because of the alleged involvement of British intelligence agents. But the British government urged the court not to do so because the Bush administration had threatened to stop sharing counterterrorism intelligence with London should the information be made public, according to the High Court’s decision.

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