The US government argued vehemently yesterday in District Court that government contractors engaged in confidential activities are covered by the controversial state secrets doctrine to the extent that litigation would require disclosure of government secrets.

The state secrets document is a common law doctrine that the American Supreme Court officially recognized in 1953, in an unfortunate negligence case involving the widows of American servicemen killed in an Air Force accident. The Air Force claimed that the servicemen were on a top secret mission involving electronic equipment, and that the entire mission was therefore protected. The Supreme Court agreed, and the lawsuit was dismissed, although declassified documents later revealed that the “electronics equipment” never existed, and that the accident resulted from a faulty engine - exactly the kind of factual issue that was the central to the case.

Enter the Cheney administration, which has invoked the state secrets doctrine more than every administration combined in the 45 years since its inception. The rendition issue has been covered extensively, argued in open congressional hearings, and commented upon publicly by numerous administration officials. But the administration has drawn a hard line in the case, Mohamed et al. v. Jeppesen (the defendant is a Boeing subsidiary, in an effort to strangle this important case in its infancy, and prevent the establishment of any kind of awkward precedent. Conspiracy theorists will also note that under this aggressive posture, favored contractors conspiring in all manner of dodgy administration activities are spared potentially painful American civil damage awards.

There is ample circumstantial evidence of Jeppesen's involvement in rendition flights that is part of the public record, including European flight plans and admissions by friendly governments and company executives – and there are, of course, the first person accounts of the five plaintiffs. One Jeppesen executive shocked a confused group of Jeppesen newbies when he started bragging at a company function about how lucrative the "torture flights" had turned out to be.

Justice Department attorney Michael Abate told U.S. District Judge James Ware, that the existence of the program was still officially confidential, and that "without the (confidential) information in question, this case cannot be litigated".

The case, which we've covered here in the past, has been brought on behalf of the five plaintiffs by the American Civil Liberties Union (ACLU); and Ben Wizner, the ACLU attorney arguing the case in San Jose, strenuously disagreed with Abate. He observed that the state secrets doctrine has been used as a nuclear option by the current administration, and that dismissal, would mean that "no court will ever be able to say whether the program is legal." The gist of the argument went thus: how can the government make a public argument about the importance of the program while at the same time shielding the program from judicial review?

The extensive recent coverage of American torture outsourcing has made many Americans uncomfortable, although in some form or another it has existed for quite some time – the twist introduced by the Clinton administration, and wholeheartedly embraced by enthusiasts in the current administration, has been the aggressive use of kidnapping, rather than, say, turning over foreign nationals captured on the battlefield. Of course, the whole world’s the battlefield, they would have us believe - and outsourcing to unaccountable American contractors is just part of the game. ®