Ninth Circuit: Feds can use “state secrets privilege” to block lawsuits over terrorist renditions
posted at 8:10 pm on September 8, 2010 by Allahpundit
Amazing stuff. The Ninth Circuit is, of course, the most famously liberal appellate court in the country, and the policy in question is no mere Bush-era artifact. Team Barry announced more than a year ago that rendition of detainees to less, er, polite countries for interrogation would continue, albeit allegedly with more “oversight.” So in essence, if you were a liberal voter circa 2008, you should have had two reasons to never worry about this scenario: Either Obama would discontinue rendition or else a left-wing court would make him suffer the consequences.
By a six-to-five vote, the United States Court of Appeals for the Ninth Circuit, reversing an earlier decision, dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the C.I.A.’s “extraordinary rendition” program, as it is known. The American Civil Liberties Union filed the case on behalf of five former prisoners who say they were tortured because of the program – and that Jeppesen was complicit in their treatment…
The current case turns on the question of whether the executive branch can invoke the “state secrets privilege” to shut down entire lawsuits, or whether it could only use it to withhold particular pieces of sensitive information while allowing the litigation to go forward. In April 2009, a three-judge panel on the Ninth Circuit adopted the narrower view, ruling that the lawsuit should proceed.
But the Obama administration appealed that ruling to the full San Francisco-based appeals court. And on Wednesday, a narrow majority endorsed the broader view of executive secrecy powers, concluding that the lawsuit must be dismissed without even a trial that would be limited to already-public information.
The crux of the opinion:
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 government does or does not conduct covert operations. Our conclusion holds no matter what protective procedures the district court might employ. Adversarial litigation, including pretrial discovery of documents and witnesses and the presentation of documents and testimony at trial, is inherently complex and unpredictable. Although district courts are well equipped to wall off isolated secrets from disclosure, the challenge is exponentially greater in exceptional cases like this one, where the relevant secrets are difficult or impossible to isolate and even efforts to define a boundary between privileged and unprivileged evidence would risk disclosure by implication. In these rare circumstances, the risk of disclosure that further proceedings would create cannot be averted through the use of devices such as protective orders or restrictions on testimony.
The majority was sufficiently anguished about shutting down the lawsuit that they recommended that the feds consider voluntarily paying reparations to the plaintiffs who had allegedly been tortured in foreign countries. And while the reasoning here is based on the idea that there was no way to prevent some very important secrets from coming out if the case went forward, obviously the feds have an interest beyond merely protecting their secrets: They want to reassure private companies who participate in their national security programs that they’ll do their utmost to protect them from liability. Mission accomplished. Exit question: Everyone comfortable with this policy? If, in the interests of national security, your rights are violated, there’s no legal recourse against any party involved if the facts implicate “secrets”? Transparency fee-vah!
Update: Another question which we’ve raised before bears raising again. If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy? If you’re truly worried about detainees being mistreated, cancel the program and figure out a way to interrogate them more “vigorously” here without violating their rights.