[JURIST] The US Court of Appeals for the Ninth Circuit [official website] Wednesday affirmed [opinion, PDF] a district court’s dismissal of a suit brought by the American Civil Liberties Union (ACLU) [advocacy website] against a Boeing subsidiary in connection with its alleged role in the Central Intelligence Agency (CIA) [official website] extraordinary rendition program [JURIST news archive]. The plaintiffs, Binyam Mohamed [JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmaad Bashmilah and Bisher al-Rawi, alleged that San Diego-based Jeppesen Dataplan [corporate website] knowingly aided in the rendition and subsequent torture of terror suspects by the CIA. Before Jeppesen could file an answer to the original complaint, the Department of Justice (DOJ) intervened [JURIST report] and asserted the state secrets privilege [JURIST news archive], arguing that fact-finding in the case could jeopardize national security. The district court dismissed the case and a three-judge panel of the Ninth Circuit overturned [JURIST reports] the ruling on appeal. The DOJ then asked the Ninth Circuit to reconsider the case with a full panel, and was granted an en banc rehearing [JURIST reports]. The original Ninth Circuit panel ruled that the state secrets privilege can only be invoked in relation to established evidence in the case, not just at the possibility that such evidence may be uncovered should the case proceed, but Wednesday’s 6-5 opinion reverses that position, holding that in some “rare” circumstances, it may be impossible for a suit to proceed at all without inevitably compromising national security:
[T]here are times when exceptional circumstances create an irreconcilable conflict between [liberty, justice, transparency, accountability and national secuirty]. On those rare occasions, we are bound to follow the Supreme Court’s admonition that ‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’ … Here, further litigation presents an unacceptable risk of disclosure of state secrets no matter what legal or factual theories Jeppesen would choose to advance during a defense. Whether or not Jeppesen provided logistical support in connection with the extraordinary rendition and interrogation programs, there is precious little Jeppesen could say about its relevant conduct and knowledge without revealing information about how the United States does or does not conduct covert operations. … We … acknowledge that this case presents a painful conflict between human rights and national security.
The majority said that other avenues may be available for the plaintiffs to address their claims, including Congressional investigation of alleged wrongdoing, monetary reparations and the possibility that the executive may “determine whether the plaintiffs’ claims have merit” and voluntarily choose to “honor the fundamental principles of justice.” The five-judge minority chastised the proposal, saying that “[n]ot only are these remedies insufficient, but their suggestion understates the severity of the consequences to plaintiffs from the denial of judicial relief” and “elevate the impractical to the point of absurdity.” ACLU staff attorney Ben Wizner also decried the ruling [press release]. “This is a sad day not only for the torture victims … but for all Americans who care about the rule of law,” he said. “To date, not a single victim of the Bush administration’s torture program has had his day in court.”
The state secrets privilege, which allows the exclusion of evidence based on a government affidavit that such evidence may endanger national security, has been highly criticized by rights groups and others. Julian Sanchez [Cato profile] of the Cato Institute [advocacy website] argued [JURIST comment] last October that Congress should implement state secrets reforms, rather than relying on the DOJ to increase oversight. Last year, Attorney General Eric Holder [official profile] announced [JURIST report] a number of new state secrets policies seeking to increase government accountability and oversight. Also last year, OpenTheGovernment.org [advocacy website] released a report [text, PDF] examining the privilege and other transparency issues, concluding that the current administration has improved transparency [JURIST report], but more should be done.
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