"state secrets" fiction demolished; Jeppesen case revived

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Court allows landmark torture renditions case to proceed


Published: April 28, 2009 
Updated 9 hours ago 

Ruling strikes major blow to Bush/Obama position on state secrets

A federal appeals court ruled Tuesday to reinstate an ACLU lawsuit against a Boeing subsidiary that allegedly helped the CIA transport terror war prisoners to so-called black sites where they were tortured. The Obama administration had argued the case's very existence would endanger national security and pressed the court to dispose of it.

"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," said Ben Wizner, staff attorney with the ACLU National Security Project, in a media advisory.

"In a 26-page ruling, the 9th U.S. Circuit Court of Appeals found that the federal government failed to document how the lawsuit would reveal state secrets, sending the case back to San Jose U.S. District Judge James Ware for further proceedings,"reported Mercury News. "Ware dismissed the lawsuit last year, concluding that litigation over the controversial flight program could prompt the disclosure of CIA secrets."

"The government finally urges us to affirm according to Reynolds because, in its view, there is 'no possibility' that plaintiffs can establish a prima facie case, or that Jeppesen can defend itself, 'without using privileged evidence,'" the court ruled in a 26 page decision. "We are unpersuaded because acceding to the government's request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered."

"In a way, the ruling wasn't un-expected," wrote Marc Ambinder at The Atlantic. "The ninth circuit has been increasingly impatient with blanket assertions of the privilege even as they've been deferential to the government's concerns about protecting national security information."

"The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties," reported the San Francisco Chronicle.

"The reason why this case is significant is that it appears to restrict the use of the state-secrets privilege to dismiss entire cases only if the plaintiff has a secret agreement with the government to withhold information, which obviously isn't the case here," noted theAmerican Prospect. "Now the administration can appeal this decision, but if this ruling holds, what it essentially means is the end of the use of the states-secrets privilege to dismiss entire cases unless there is a prior agreement between the plaintiff and the government to keep that information secret. In other words, if Jeppesen were suing the government, the case could be dismissed. But otherwise, the use of the state-secrets privilege is restricted to withholding specific pieces of evidence, as it was originally intended. The administration won't be able to dismiss entire cases except within a certain narrow criteria."

"According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," ruled Judge Michael Daly Hawkins in the 3-0 decision.

"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,'" he concluded.

"The Ninth Circuit's decision in the Jeppesen case is the latest example of courts being skeptical of the government's argument that entire cases should be dismissed based on the assertion of the state secrets privilege without any evidence being considered," said Sen. Russ Feingold (D-WI) in a prepared statement. "It underlines the need for the State Secrets Protection Act, which puts in place a reasonable system for assessing state secrets claims. I urge the Obama administration to get behind the bill and help us pass it this year."

Salon called it a "major defeat for the Bush/Obama position on secrecy."

"Today's decision is a major defeat for the Obama DOJ's efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny," wrote Glenn Greenwald. "Given how Obama recently emphasized how committed he is to defending government secrecy powers in court, it it highly likely the Obama DOJ will attempt to appeal this ruling further -- to a full 9th Circuit panel and/or to the Supreme Court -- but in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly 'secret' (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court."

"I am happy to hear this news," said Bisher Al-Rawi, a plaintiff in this case, in an ACLU press release. "We have made a huge step forward in our quest for justice."

The case is Mohamed v. Jeppesen Dataplan (PDF link).

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This page contains a single entry published on April 28, 2009 9:59 PM.

torture done in our names is not going to go away was the previous entry in this blog.

Acceptable torture and torture by mistake; this week's (CIA?) media blitz, spin and mind-f*** is the next entry in this blog.

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