In February, the Obama Justice Department dismayed the entire civil and human rights community by reiterating the Bush administration's arguments that victims of “extraordinary rendition” and torture should not be allowed to bring their claims in federal court because doing so would reveal “state secrets” and harm national security. The case is Mohamed v. Jeppesen Dataplan, on behalf of five five individuals who allege that they were illegally rendered to secret prisons and detention sites where they were tortured. Jeppesen Dataplan is the aviation company which provided aircraft, pilots, and logistical support for the CIA rendition flights responsible for transporting detainees to torture.
The Bush administration succeeded in getting the case dismissed by arguing that the rendition program was a state secret, regardless of how many times President Bush and various CIA directors had talked publicly about it. The Obama administration reiterated that claim before the 9th Circuit Court of Appeals in February, and today the Court ruled against the government, and reinstated the case.
The three judge panel reversed the lower court’s decision, which had accepted the government’s argument (then made by the Bush administration) that allowing it to move forward would endanger national security.
The logic of the state secrets privilege, the appeals court panel writes (pdf), “simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities. Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery.”
In other words, as the the American Civil Liberties Union had argued on behalf of the five victims, there is no reason to prevent the victims from having their day in court against a government contractor that they claim knowingly assisted in their torture. Pursuing those claims don’t have to reveal any secret evidence about the CIA program that could be dangerous to disclose.
The broad state secrets argument has also been used by both the Bush and Obama administrations in the Al Haramain warrantless wiretapping case, where it has also been rejected by the Ninth Circuit Court. In addition to the appeals court efforts to restore a bit of check and balance on state secrets, Congress is likely set to act. Senators Leahy, Kennedy, Feingold, and newly-minted Dem Specter have introduced state secrets legislation.
Senator Sheldon Whitehouse (D-R.I.) and Senator Claire McCaskill (D-Mo.) are also cosponsors of the legislation. The Leahy-Specter-Feingold-Kennedy legislation would:
- Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
- Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters
- Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
- Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
- Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely
- Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals
- Establish congressional reporting requirements
- Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution
The state secrets privilege has a place in preventing the disclosure of evidence that could potentially be harmful to national security if revealed. But the Bush administration wielded it to an extreme degree, often arguing that cases had to be dismissed even before any evidence had been identified or a judge had been allowed to review it to see if it might be privileged, because the very subject matter in the case (i.e., rendition or warrantless wiretapping) was a state secret, even though the existence of and basic details of the program was public. A return to balance on this privilege is essential to a transparent, accountable government.
What this decision means for this case is that now it will go back to the District Court for a document-by-document review in which the court determines which information is privileged, and the five former detainees (including Binyam Mohamed) get their day in court, as should happen in America. If the administration doesn't appeal again.
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