"...The cases give Mr. Obama a chance to show how serious he is about repairing Mr. Bush's legacy of harm.

The first test comes on Monday in San Francisco, where three judges of the United States Court of Appeals for the Ninth Circuit are scheduled to hear arguments in a civil case involving kidnapping and torture. The Bush team was using one of its signature legal tactics — stretching the evidentiary rule known as the state secrets privilege — to avoid having the detainees' claims ever heard.

The five plaintiffs, victims of Mr. Bush's extraordinary rendition program, were seized and transported to secret American facilities abroad or to countries known for torturing prisoners — on flights organized by a private contractor, Jeppesen Dataplan.

One plaintiff, an Ethiopian citizen and legal resident of Britain, says he was tortured in Pakistan, Morocco and a C.I.A.-run prison outside Kabul commonly known as the "Dark Prison" before being transferred to Guantánamo, where he remains.

In Morocco, according to his account, he endured routine beatings and perpetual shackling, and security agents cut him all over his body. A hot, stinging liquid was then poured into his open wounds.

Another plaintiff, an Iraqi citizen and legal resident of Britain, was arrested in Gambia while on a business trip. He was flown to Afghanistan and held, chained and shackled in a tiny, pitch-black cell. Later, he was transferred to the American-run Bagram Air Base, where he endured beatings and inadequate sleep, water and clothing. Finally, he was sent to Guantánamo. After four-and-a-half years in detention without any charges being filed, he was released in 2007.

A federal trial judge dismissed these serious allegations without allowing any evidence to be presented. He reflexively bowed to the Bush administration's claim that doing so would put national secrets at risk.

The Bush administration's claim is that the "very subject matter" of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.'s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

It is also contrary to Mr. Obama's stated views. To put them into action, Mr. Holder should immediately ask the court for time to rethink the government's position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.

Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy. That certainly does not fit principles that the new president has so often articulated." NYT