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.

Surprise.

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.


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Exit question: Everyone comfortable with this policy?

What do you think?

I HATE THE NINTH, I HATE THE NINTH, I HATE THE NINTH.

upinak on September 8, 2010 at 8:14 PM

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.

Tehehehe

Exit question: Everyone comfortable with this policy?

I am as long it goes the other way, too.

SouthernGent on September 8, 2010 at 8:15 PM

Wow. Now Obama can torture detainees.

seven on September 8, 2010 at 8:16 PM

What is this, bizarro world?

frode on September 8, 2010 at 8:16 PM

Barry O: the neocon’s useful idiot.

/sarc

Bruno Strozek on September 8, 2010 at 8:17 PM

Me, in my best Nelson Muntz voice, to liberals:

Haw haw!

amerpundit on September 8, 2010 at 8:17 PM

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”?

The terrorists transported on these flights have no rights here.

KSgop on September 8, 2010 at 8:18 PM

Hope! Change! Horsebleep!

Physics Geek on September 8, 2010 at 8:19 PM

Haw haw!

amerpundit on September 8, 2010 at 8:17 PM

don’t haw to loud, this can also be used on americans.

upinak on September 8, 2010 at 8:19 PM

I’ll bet anything Obama’s using this on SUV drivers as we speak.

abobo on September 8, 2010 at 8:19 PM

Republicans need more litmus tests for senate confirmation so that any judge who would vote for allowing Obama that kind of power won’t get approved.

Spathi on September 8, 2010 at 8:20 PM

Amazing, isn’t it.

petefrt on September 8, 2010 at 8:21 PM

I suppose the 9th’s overt political support of all things Obama didn’t come into play here?

BKeyser on September 8, 2010 at 8:21 PM

don’t know whether to hardy har har or not on this one….skeevy…

ted c on September 8, 2010 at 8:21 PM

If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy?

Saying you’re against something and actually being against it are two different things.

Obama says a lot of things his actions contradict. Sort of like that “post partisan” thing. He claims to be above partisanship, while being partisan.

As long as the dummies keep supporting for him on his words and not his deeds, he’s happy.

With that being said, this is the rare case I can say I agree with his actions. Rendition should continue.

ButterflyDragon on September 8, 2010 at 8:23 PM

If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy?

Because he has no principles, only an agenda?

peski on September 8, 2010 at 8:23 PM

I’m pretty sure that these were not Americans being sent to foreign countries so I don’t think this applies to what government can do to citizens.

But the whole thing makes me uncomfortable.

Rendition is really is a very dishonest system.

However, I don’t want people who are acting on the behest of the government… especially if it is a matter of actual National Secruity, to be punished for doing what the government says to do.

The buck should stop higher up anyway.

petunia on September 8, 2010 at 8:32 PM

Since there’s a liberal President, the courts will bend over backwards to conciliate him. I have no doubt if it were otherwise, these people would have reached a drastically different verdict.

promachus on September 8, 2010 at 8:33 PM

What amazed me when the decision from the 9th circus came down was that it was 6-5 to dismiss.
6-5 baby…there were 6 supporting the rights of a private business, against jihadies !!!!!
How awsome is that ?

macncheez on September 8, 2010 at 8:35 PM

don’t haw to loud, this can also be used on americans.

upinak on September 8, 2010 at 8:19 PM

My “haw” has more to do with the Obama Administration and liberal judges defending a Bush-era policy and the inevitable anger from liberals who thought Obama would shut the whole infrastructure down. They bought into what he was saying.

amerpundit on September 8, 2010 at 8:36 PM

If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy?

Because Barack Obama doesn’t mind dirty hands…

… as long as it is somebody else’s hands.

JohnGalt23 on September 8, 2010 at 8:39 PM

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”?

Hmmm. Sounds like now these murdering scum have rights in the US that are reciprocal to those we would recieve if charged with jaywalking in their home town.

FalseProfit on September 8, 2010 at 8:41 PM

So when does Code Pink start it’s protests?

GarandFan on September 8, 2010 at 8:49 PM

So when does Code Pink start it’s protests?

GarandFan on September 8, 2010 at 8:49 PM

As soon as they cash their checks from hamas and taliban

macncheez on September 8, 2010 at 8:53 PM

Between the Commerce Clause, State Secrets and Judicial Activism…what is left of the Constitution?

ronsfi on September 8, 2010 at 8:56 PM

I’m fine with this. We would all be a lot safer if all Western countries did this.

For those who worry about being caught in the net, don’t commit or enable acts of terrorism.

OldEnglish on September 8, 2010 at 9:06 PM

If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy?

Well, we have a moratorium on deep water driling in the Gulf but loaned money to Mexico so they could drill there.

a capella on September 8, 2010 at 9:07 PM

My guess is that anything done to me by the government, under the guise of national security, would be deemed completely legal. Just cause that’s how it works. I do wonder if Mr. McCain had won the election if the outcome would have been the same?

Cindy Munford on September 8, 2010 at 9:13 PM

Well, we have a moratorium on deep water driling in the Gulf but loaned money to Mexico so they could drill there.

a capella on September 8, 2010 at 9:07 PM

Don`t forget the billions to Brazil for their offshore deep water drilling.

bluemarlin on September 8, 2010 at 9:13 PM

Barry doesn’t want anyone to know he’s given the CIA instructionsto tickle the terrorists to get them to talk.

Unless they are tea party folks, then anything goes.

fogw on September 8, 2010 at 9:16 PM

Between this and the Obama Administration’s assertion of the right to assassinate American citizens at any time without due process, I am honestly afraid for my country. These policies are not consistent with a Constitutionally-restrained Republic.

Inkblots on September 8, 2010 at 9:21 PM

They said if I voted for McCain….well, you know the rest.

Good Solid B-Plus on September 8, 2010 at 9:25 PM

“Liberal” courts/justices and “conservative” courts/justices really doesn’t mean anything anymore. Big government/statist courts and justices v. constitutional justices like Thomas is what is boils down to. The Thomases are losing … badly.

Firefly_76 on September 8, 2010 at 9:28 PM

So, which one of the six in the majority will be Obama’s next Supreme Court nominee (or at least thinks he/she will)?

Can they be more transparent?

rockmom on September 8, 2010 at 9:28 PM

Funny how different the world looks when you see it from out those big picture windows in the oval office. Much different than from the campaign trail, huh Barry?

kurtzz3 on September 8, 2010 at 9:28 PM

Don`t forget the billions to Brazil for their offshore deep water drilling.

bluemarlin on September 8, 2010 at 9:13 PM

Brazil drills for oil ?
But but …but Algore and the hollywierdo nuts told me that Brazil uses ethanol for everything and went green long long time ago ….wahapind ?

macncheez on September 8, 2010 at 9:29 PM

Between the Commerce Clause, State Secrets and Judicial Activism…what is left of the Constitution?

ronsfi on September 8, 2010 at 8:56 PM

It’s pretty scary to contemplate, isn’t it? Suddenyl, I feel like lying down…

Inkblots on September 8, 2010 at 9:30 PM

It seems,it never ends!!

But on the bright side,Elana Kagan is on the
court,er,Supreme Court that is!!(sarc).

canopfor on September 8, 2010 at 9:32 PM

For those who worry about being caught in the net, don’t commit or enable acts of terrorism.

OldEnglish on September 8, 2010 at 9:06 PM

Yep, because as we all know, the Federal government is infallibly competent and could never possibly make a mistake.

Inkblots on September 8, 2010 at 9:36 PM

The US Court of Appeals for the Ninth Circuit
==============================================

http://www.ca9.uscourts.gov/

canopfor on September 8, 2010 at 9:37 PM

Yep, because as we all know, the Federal government is infallibly competent and could never possibly make a mistake.

Inkblots on September 8, 2010 at 9:36 PM

So, do nothing at all – it’s the only way to be sure of not making a mistake.

OldEnglish on September 8, 2010 at 9:40 PM

So when does Code Pink start it’s protests?

GarandFan on September 8, 2010 at 8:49 PM

GarandFan: Heres El Pinko’s Action Alert’s,knock yourself
out!

(I’m kidding on the knock-out part!):)
==================================================

Action Alert Archive – 2010

http://www.codepink4peace.org/section.php?id=418

canopfor on September 8, 2010 at 9:42 PM

So, do nothing at all – it’s the only way to be sure of not making a mistake.

OldEnglish on September 8, 2010 at 9:40 PM

OldEnglish:Yup!!:)

canopfor on September 8, 2010 at 9:43 PM

So, do nothing at all – it’s the only way to be sure of not making a mistake.

OldEnglish on September 8, 2010 at 9:40 PM

Or, on the other hand, allow at least some limited recourse in the courts for those whose rights may be violated to protect themselves and stop bad actors.

But wait, no, that would be the Constitutional approach – that’s, like, two hundred years out of date!

Inkblots on September 8, 2010 at 9:44 PM

Well, we have a moratorium on deep water driling in the Gulf but loaned money to Mexico so they could drill there.

a capella on September 8, 2010 at 9:07 PM

Don`t forget the billions to Brazil for their offshore deep water drilling.

bluemarlin on September 8, 2010 at 9:13 PM

Sssshhhh! That’s to protect Nazi stooge George Soros’ investment in Petrobras!

slickwillie2001 on September 8, 2010 at 9:56 PM

Amazing.

But then again, the 9th might just be Obama ether addicts who forgot their repulsion to the BUSHITLER, (whose policies they found so repulsive and inhumane as to be considered war crimes).

And then, in the liberal hypocritical fashion, (since Obama can do no wrong), maybe they just reverted to an Emily Latela decision…….

NEVER MIND!

Opposite Day on September 8, 2010 at 10:10 PM

Exit question: Everyone comfortable with this policy?

What’s not to like? / Not that BSC! McCain’s any better.

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.

From your first link:

…the administration says it now takes greater safeguards to prevent detainees from being mistreated.

…the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.

He ain’t gonna lie!

The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power.

How nice for him.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers…

He’s worse than Bush.

don’t haw to loud, this can also be used on americans.

upinak on September 8, 2010 at 8:19 PM

Yeah, and just in case anyone thinks our glorious security state backed off Americans, the DoJ lists Constitutionalists along with al Qaeda in their new Terrorism and Criminal Extremism Guide. (And it looks like NPR got a copy!)

Interesting times…

Rae on September 8, 2010 at 10:39 PM

Here’s the audio to the 2 appellate panels – 3-judge and en banc – the 9th Circuit held in this case. As Mark Levin likes to say: Thank me.

BCrago66 on September 8, 2010 at 10:48 PM

Jeppesen Dataplan

Oh, puh-leeze.

As any private pilot knows, Jeppesen is a provider of aviation navigation charts to show assorted airports. I’ve not read the ACLU’s “complaint, but it sounds like they decided to sue the gas station for selling a road map, not for malice aforehtought. They do do “flight planning” but it’s based on information readily available to others.

Del Dolemonte on September 8, 2010 at 10:55 PM

Inkblots on September 8, 2010 at 9:44 PM

American citizens may have a case – where the alleged crime is committed on American soil, but no-one else.

However, the founders of the Constitution could not have foreseen the kind of events now taking place. I’m not saying, at all, that the Constitution itself is out of date, merely that it needs to be updated to reflect conditions which have been imposed upon America by outside forces.

Islam is an outside force, and should be treated as such.

OldEnglish on September 8, 2010 at 10:57 PM

OldEnglish on September 8, 2010 at 10:57 PM

Strike that! ::sigh::

OldEnglish on September 8, 2010 at 10:59 PM

The state secrets privilege is a necessity to protect foreign enemies from abusing our civil discovery rules to conduct intelligence gathering and in general to harass our military and intelligence services or their contractors in lawfare attacks.

The safeguard here is that the government must provide a classified certification by a department head to the reviewing court demonstrating why the information should be classified. Thus, a nefarious conspiracy to conceal an actual crime would have to extend to the highest reaches of the executive and pass scrutiny of the trial and appellate courts to jump this hurdle.

The case under appeal was a classic lawfare action grounded nearly completely in allegation with only the scantest actual evidence – the affidavit of the air carrier’s employee that the company worked for the CIA. Discovery would be conducted under the reasonably likely to lead to discoverable evidence standard and would inevitably be a fishing expedition with few limits.

Bart DePalma on September 8, 2010 at 11:01 PM

More total hypocrisy of the “Hope and Change” era for the left to give Obama a pass on and for the MSM to ignore.

All the faux outrage by the self righteous liberals about “war crimes” and “killing civilians” was nothing more than a vehicle to demonize Bush and further their political agenda….
Besides the reality of all the “Peace advocates” taking their protests from the streets to hanging out in the coffee shops….they readily admit that it was all political:

Code Pinko Crybaby Laments Obama’s Poll Dive
Posted by Lady Liberty on Sunday, September 5, 2010, 8:46 PM
http://gatewaypundit.firstthings.com/2010/09/code-pinko-crybaby-laments-obamas-poll-dive/

After fighting the Bush administration for the better part of a decade, the anti-war movement can barely draw public attention to Afghanistan because of kitchen table issues like the worsening economy, the increasingly unpopular health care overhaul and high unemployment. Meanwhile, the leaders have kept their grumbling about Afghanistan mostly to themselves, to keep Obama’s sagging poll numbers from sinking further or jeopardizing the Democratic majority in Congress.

“A lot of the people who were part of this movement have retreated,” Codepink’s Benjamin said. “They wanted to give up on the timetable [for withdrawing from Iraq]. Some are still reluctant to criticize a Democratic president now with the midterms coming up.


Uhhh….”War is not the Answer….uhhh….unless it hurts democratic poll numbers!!!”

Bottom line is that democrats politicized the difficulties of war and the blood of our Soldiers to gain Congressional seats and the White House.

How Progressive!!!!!!

Baxter Greene on September 8, 2010 at 11:33 PM

Must be apealed. This can’t be settled by the 9th kindergarten.

Schadenfreude on September 8, 2010 at 11:43 PM

BS. Courts shouldn’t have any say over how wars are fought, or how terrorists overseas are collared, anyway. Who gives a calcified damn what they think?

Virus-X on September 9, 2010 at 12:39 AM

What was that aphorism about blind squirrels and nuts again?

percysunshine on September 9, 2010 at 6:40 AM

I called a far left character who spoke “Bush” like a curse and asked how he liked President Cheney. He never called me back.

IlikedAUH2O on September 9, 2010 at 7:02 AM

So now torture is OK

roflmao

donabernathy on September 9, 2010 at 8:21 AM

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!

What rights? Is this being done to US citizens?

Count to 10 on September 9, 2010 at 9:51 AM

Between this and the Obama Administration’s assertion of the right to assassinate American citizens at any time without due process, I am honestly afraid for my country. These policies are not consistent with a Constitutionally-restrained Republic.

Inkblots on September 8, 2010 at 9:21 PM

OK, I’m not going to leave that unchallenged. The “assassination” referred to are attacks on people who are major enemy command, strategy, and support personnel. They are legitimate targets of war. The rule is simple: being an active enemy during time of war makes you a target, and being an American Citizen does not give you a pass.

LarryD on September 9, 2010 at 10:23 AM

don’t haw to loud, this can also be used on americans.

upinak on September 8, 2010 at 8:19 PM

Word. Friends of mine had their house raided last year, no knock dynamic entry by an alphabet soup. Firearms confiscated, business records and computers confiscated, under the Patriot Act. The Fed goons had even spied on them HAVING SEX before their raid. Why? The Feds didn’t like their politics. NO charges filed. Property NEVER returned, including firearms–yet he can go buy a new gun and pass the background check. Threatened with lawsuit if they go to the press. They can’t even go into the court of Public Opinion to get justice. Your new Reich at work. He regrets now that he supported the Patriot Act when it was passed. He’s had it used against him for his Tea Party activities.

quikstrike98 on September 9, 2010 at 10:24 AM

What rights? Is this being done to US citizens?

Count to 10 on September 9, 2010 at 9:51 AM

Not rendition as of yet, but see my post above. No knock entries in the dead of night, seizure of property without benefit of trial, Federal gag orders preventing the victim from talking to the press about Government abuses of rights.

quikstrike98 on September 9, 2010 at 10:29 AM