Promoted from the diaries, with minor editing ~ smintheus
The United States District Court for the Northern District of California held yesterday in the case of Mohamed v. Jeppesen Dataplan, Inc. that the state secrets doctrine bars all suits against anyone involving "allegations of covert U.S. military or CIA operations in foreign countries against foreign nationals" which the government has not admitted.
In other words, the CIA is free to violate your civil rights with impunity, so long as it doesn't publicly admit to doing so.
The case in question involved a private company involved in illegal rendition flights that were part of a larger CIA operation to interrogate and torture terrorism suspects, in this case, foreign nationals. Nationality is irrelevant, however, to the application of the state secrets doctrine. It prevents American citizens from suing anyone for conduct in connection with covert operations as well, and indeed was created in a case brought by United States soldiers whose integrity was never questioned.
The result isn't a great surprise, given the outcome in the dozens of other cases in which the Bush Administration has asserted the state secrets privilege, such as the extraordinary rendition case of El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). But, it is remarkable mostly because it acknowledges a point that some of the better known cases addressing the states secrets privilege have not. The Northern District of California makes clear that the state secrets privilege amounts to absolute immunity from prosecution for every private and public party involved in a genuinely covert action.
This contrasts strongly with the original context in which the state secrets privilege was created in the U.S. Supreme Court case of United States v. Reynolds, 345 U.S. 1 (1953)), where the privilege was used to prevent the people bringing the suit from obtaining key documents necessary to prove the case from the government itself, but not to prevent the suit itself from being brought based upon competent evidence such as their own testimony.
Of course, a right without a remedy isn't much of a right. So, this arcane court created privilege, in fact, abrogates clearly established constitutional rights of U.S. citizens and non-citizens, simply because the United States government has chosen to violate those rights secretly, rather than publicly admitting that it is violating those rights.
No language in the United States Constitution, no law enacted by Congress, no treaty ratified by the U.S. Senate, and no regulation published in the federal register demands or suggests this result. The notion that the government can imprison and torture someone without any probable cause, due process or resort to habeas corpus, in violation of extradition treaties with the nations involved, is a creation out of whole cloth by the Justice Department and the judiciary. It is also notable that a review of the since declassfied documents in the case that established the states secrets doctrine showed that the people barred from bringing the suit did in fact have a valid claim and that the government's lawyers lied when they claimed that state secrets were implicated in the case, a deceipt for which a court asked to reopen the case held there was no remedy. Herring v. United States, 424 F.3d 384 (3d Cir. 2005).
We also know that this administration, while not the only one to invoke the state secrets privilege, has done so far more aggressively than any past adminstration. The Reporters' Committee for Freedom of the Press claims that, "while the government asserted the privilege approximately 55 times in total between 1954 ..... and 2001, [the government] asserted it 23 times in the four years after Sept. 11.''
Unlike the much older court created doctrine established by the U.S. Supreme Court in Totten v. United States, 92 U.S. 105 (1876) (applied recently in the case of Tenet v. Doe, 544 U.S. 1 (2005)), that bars secret agents from bringing suit against the government for failure to fulfill its obligations to compensate those agents, the state secrets doctrine applies to people who did not consent in any way to entering into a situation where they would have no legal remedies.
At least under the judicially created legal doctrine of "qualified immunity" for government employees and agents who have allegedly violated constitutional rights that were not clearly established at the time of the violation, the court must as part of a two step process established by the U.S. Supreme Court in Saucier v. Katz, 121 S. Ct. 2151 (2001), first rule on the question of whether an alleged act was unconstitutional or not, setting a precedent for future cases, before dismissing a claim for money damages. In a state secrets case, in contrast, the legality of the acts alleged is never even resolved.
Notably, if the victim of the acts of the private company working with the CIA in this case had collaborated with the intelligence service of any other government, the state secrets doctrine would not apply and the suit would probably have been allowed to go forward at this early stage of the lawsuit.
The much ballyhood case of telecommunications company liability for FISA violations was made possible only because public admissions of relevant government officials about the program may be sufficient to establish the violations, and public admissions are no longer state secrets.
There is a bipartisan solution to this gross loophole in our civil rights and liberties. Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA) have introduced S. 2533, the “State Secrets Protection Act.” The Senate Judiciary Committee considered the bill yesterday. If this law passes, one of the biggest blots upon our constitution made by the current administration can be removed.