From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone. And I'm Bob Garfield.

This week, an unusual and perhaps illuminating moment came during hearings in a case against a Boeing subsidiary,

accused of helping the CIA to secretly transport terror suspects to overseas prisons where they were tortured.

The Bush administration had sought to have the case dismissed under the state secrets privilege,

which lets the government ask judges to withhold evidence, even throw out whole cases,

because they argue the cases might endanger national security.

Now, with the Obama administration in power, the government is still trying to have the case

thrown out, which led one judge to ask the administration's lawyer, quote,

The change in administration has no bearing?

No, Your Honor, the lawyer replied. The moment was unusual because judges

almost never acknowledge the world of politics, and it may be illuminating because it's an early

sign that the new administration's approach to secrecy might not be so new after all.

Dahlia Lithwick is Slate's legal columnist.

She says, prior to the Bush administration, the state secrets privilege was used a lot less often by the government.

It had only ever been invoked 55 times since 1953.

Under the Bush administration, it was invoked 39 times.

So there was this massive expansion in the amount of times they invoked it. The other difference was how it was used. It went from being this very narrow evidentiary rule, which essentially said, okay, there's a document you can't see. Suddenly it became, you have to dismiss the entire case. This case never goes into a courtroom. It's decided right here and now in the pleading stage because there's just too much of a risk that the information will get out there. And this was used to dismiss some really incredibly important cases under the Bush administration, including several cases that alleged torture had happened, cases that alleged NSA eavesdropping was unconstitutional. So in these very,

very high-stakes arenas, the entire case never saw the inside of a courtroom.

So along comes the Obama administration. And in the first opportunity to make a statement, declined to do so.

This Obama administration that was very much for transparency that had signed executive

orders doing away with extraordinary rendition, signed executive orders demanding new

transparency in government.

...