In April the Ninth Circuit Court of Appeals reinstated the Mohammed v. Jeppesen case, in which several former suspected terror detainees were suing a subsidiary of Boeing for providing logistical support for their rendition to countries where they were tortured. The court ruled that the state secrets doctrine could only be used to block specific pieces of evidence, (as it was used prior to the Bush administration) rather than to dismiss entire cases. The Obama administration, despite committing to a narrower use of the state secrets doctrine on multiple occasions, asked the Ninth Circuit to rehear the case en banc in the hopes of overturning the courts' decision, which would prevent the Obama administration from abusing the state secrets doctrine in the manner it's become accustomed to doing.
Yesterday the ACLU filed an opposition brief arguing that "the sum and substance of the United States' position in this litigation is that the government may engage in kidnapping and torture, declare those activities 'state secrets,' and by virtue of that designation alone avoid any judicial inquiry into conduct that even the government purports to condemn as unlawful in all circumstances."
The brief also concludes that "if these plaintiffs are denied a day in court, it is difficult to imagine which torture victims will not be." Indeed, if the court refuses to hear the case, it would be another setback in the administration's attempts to prevent those involved in implementing torture policy from facing any consequences for doing so.
-- A. Serwer
