Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.
Scotus:
The Fourth Circuit said a lawsuit by one claiming to have been a “rendition” victim can’t go forward if secrets form “the very subject matter” of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.
The “state secrets privilege,” the Ninth Circuit ruled, applies only to evidence — one item at a time. If an item of evidence is a secret, it will be kept out of the case. But if the information about government action is not secret, it can be offered and tested in court, it said. “The state secrets doctrine,” it said, “applies to evidence, not information.”
Thus, it went on, even if the government claims that information about the “rendition” program is classified, that is no bar to a court exploring specific evidence that is not itself a secret. “The question is which evidence is secret and may not be disclosed in the course of a public trial,” the Circuit Court said.
The five foreign nationals who sued in the Mohamed case, the Ninth Circuit said, should be allowed a chance to offer proof that the private air service firm provided support for the “rendition” flight ruling is based upts “with actual or imputed knowledge that the passengers would be tortured at their destinations.”
If the trial judge finds that specific items of evidence are “state secrets,” those would have to be barred from the trial. But the trial itself need not be shut down completely just because the “rendition” program was a secret operation, the Court concluded.
If followed by other courts, the judgment can have important ramification for the state secrecy doctrine: involking the sate state secrets privilege to effectively block litigation on entire topical areas such as extraordinary rendition and warrantless surveillance would become impossible.
ACLU:
“Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ‘secrets’ in a court of law.”
