The Obama administration's decision to follow in the footsteps of the Bush administration and reassert the state-secrets doctrine in the Mohamed et al. v Jeppesen Dataplan, Inc., case was one of the relatively early indications that the new administration would closely resemble the old one in matters of national security. The Obama administration, like its predecessor, asserted the state-secrets doctrine in order to argue that the courts should dismiss the entire case filed against Boeing subsidiary Jeppesen Dataplan for its alleged role in the extraordinary rendition of several former terror detainees to third countries where they were tortured.
Today, judges on the Ninth Circuit Court of Appeals reaffirmed that Jeppesen was "one of those rare cases," in which the use of the state-secrets doctrine to block entire cases, rather than individual pieces of evidence, was justified. In a statement, staff attorney Ben Wizner of the ACLU, who litigated on the plaintiff's behalf, said this:
This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.
The basic outcome of the ruling is this: The government can enlist the aid of a private company in sending you to a third country to be tortured because of suspicions that you are connected to terrorism, and you have no recourse if the government decides that the logistical details of the above process are a state secret. You can't sue the government, you can't sue the private company that was involved, and frankly you can probably count on the people who helped facilitated it getting good jobs elsewhere in the same field.
Citing what he described as the controlling precedent in this case, Judge Raymond Fisher quoted a 1950s era Supreme Court decision stating that "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” If that's the standard, then this case may have been decided correctly. But that's an absurd standard, since what it means is that the executive branch can do anything it wants without any accountability from anyone, as long as it declares the whole matter to be a "state secret."
Unsurprisingly, I found the dissent far more persuasive. Citing Antonin Scalia's dissent in Hamdi v. Rumsfeld, Judge Micheal Daly Hawkins notes English Jurist William Blackstone's conclusion that "to bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
It's hard not to conclude that what we have, in cases where "the court is ultimately satisfied that [state] secrets are at stake," is the kind of "arbitrary government" Blackstone was concerned about. Another triumph of bipartisanship, I suppose.
