US Court throws out Mohamed vs. Jeppesen rendition lawsuit in light of state secrets privilige

A sharlply-divided en banc 9th Circuit has reversed 6 to 5 an earlier panel decision that had in turn reversed a district court decision dismissing this civil suit relating to the CIA’s rendition program. The Ninth US Circuit Court of Appeals relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a lawsuit seeking to hold a government contractor partly responsible for the CIA’s rendition programme. Jeppesen Dataplan, a Boeing subsidiary, provided air transport and other international logistical support to the CIA operation.

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets.” (…)

 “The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.” (…)

“Every judge who has reviewed [that record]…agrees that in this sense  the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs’ case.”

“We reach this conclusion because all seven of plaintiffs’ claims, even  if taken as true, describe Jeppesen as providing logistical support in a broad, complex process, certain aspects of which , the government has  persuaded us, are absolutely protected by the state secrets  privilege….Because the facts underlying plaintiffs’ claims are so  infused with these secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets….”

The majority, while seeking to remove the case entirely from the courts, suggested that there might be other remedies for those claiming harms from the rendition program.  Among the suggestons were a compensation scheme, some chance to sue the government for damages in a special claims court, and possibly bills in Congress to provide individual compensation to the detainees.

Although the executive branch won in court, the majority judges were troubled by their ruling.

“After much deliberation, we reluctantly conclude … the plaintiff’s action must be dismissed,” wrote Judge Raymond Fisher.

Judge Michael Daly Hawkins wrote for the five dissenting judges, who said the lawsuit was dismissed too quickly and that the men should be allowed to use publicly disclosed evidence to prove their case.

They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.

The doctrine is so dangerous as a means of hiding governmental  misbehavior under the guise of national security, and so violative of  common rights of due process, that courts should confine its application to the narrowest circumstances that still protect the government’s  essential secrets.

It should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case. This is one of those rare cases.

Hawkins hints a the potentially most significant limitation on the new ruling’s scope. Circuit Judge Carlos T. Bea said in his brief separate opinion that he joined the result, but added that he concurred in the dissenter’s treatment of the Reynolds evidentiary privilege. According to the dissenters this privilige can never be used to stop a case barring every legal claim, even before the other side has filed a reply and before one item of evideence has been put forth.

Judge Hawkins countered as well in his dissent that the majority’s suggested alternative remedies undercut the concept of checks and balances. “Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role,” he said, “but also deprive the plaintiffs of a fair assessment of their claims by a neutral arbiter.”

Comment from Justice Department spokesman Matthew Miller:

The attorney general adopted a new policy last year to ensure the state secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case.

Lyle Deniston comments:

Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Datraplan, Inc.  (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

In the same vein we have Ben Wizner says:

“To date, not a single victim of the Bush administration’s torture program has had his day in court (…) If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”

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