State Secrets and the Limits of the Judicial Mandate
The decision in Mohamed v. Jeppesen DataPlan has finally been handed down: The Ninth Circuit Court of Appeals rejected the Bush and Obama Administrations’ argument that the state secrets privilege immunizes a private company from any and all legal claims for allegedly airlifting suspected terrorists to exotic locales so that they could be tortured.
For those unfamiliar with the case, the key facts are these. Mr. Mohamed, along with four other victims of the CIA’s rendition and torture program, sued Boeing subsidiary Jeppesen DataPlan for providing the “travel services” that made outsourced torture in foreign lands possible. The legal claim was simple: Jeppesen DataPlan, for a (certainly) handsome fee, knowingly delivered human beings into the hands of “professionals” who would, in the name of national security, interrogate them. And precisely what did these “professionals” do? Well, if Binyam Mohamed’s allegations are to be believed, suspected terrorists under their watch were beaten to a pulp, cut and scalded with hot liquid, and threatened with rape and death.
The Obama Administration, after promising to bring “change,” did some serious backsliding and asserted, just like the Bush Administration had done before it, that the entire lawsuit had to be summarily dismissed. Why? Because if there ever was a rendition and torture program, evidence relating to it would be subject to the state secrets privilege and therefore inadmissible before any court. So, in effect, the Obama Administration was intervening to protect a private company from an embarrassing lawsuit by claiming that the mere existence of the alleged agreement between that company and the government is “secret” (even if everyone already knows about it).
I hate to say this, but the Ninth Circuit wiped the floor with the arguments put forward by Obama’s legal team. The court dismissed the notion that the government could simply have the entire case thrown out by claiming that the subject matter was out of bounds. As a result, the case has been remanded to the lower court so specific claims of privilege can be properly addressed. The Ninth Circuit came to this conclusion by way of a very nuanced legal argument:
1. The Obama Administration seeks to have an entire case thrown out without a single specific piece of evidence being requested by the plaintiff from the government.
2. Granting this request would require making two serious legal blunders:
a. The Federal Rules of Civil Procedure (FRCP) would have to be gutted, since the FRCP require a formal invocation of the state secrets privilege with respect to individual pieces of evidence. You can’t just say an entire subject matter is off limits – you’ve got to assert the state secrets privilege in respect of specific pieces of evidence. As the Ninth Circuit puts this key point, the state secrets privilege can only be appropriately invoked “during discovery or at trial” – not before a case gets underway.
b. The actions of the government in general, and the CIA in particular, would be completely immunized from judicial review, making it impossible in this case, as well as in the future, to provide a judicial remedy for unlawful government action once the state secrets privilege is invoked.
3. Since the national security interests at stake can be protected without making these two grave jurisprudential mistakes, the case cannot be dismissed in toto and should be remanded to the lower court so that each of the government’s privilege claims can be carefully assessed.
As a matter of legal reasoning, I think the Ninth Circuit got it right. The court treats the state secrets privilege as a narrow rule of evidence. Accordingly, once a plaintiff asks for a specific piece of evidence, the government is able to set out its reasons for blocking the admission of that evidence through asserting the privilege. At that point, the court will consider the government’s reasons, in light of both the national security interests at stake and the ordinary evidence (i.e., evidence not subject to a privilege claim) that the plaintiff has submitted to the court. When a claim of privilege is assessed, a court must make a judgment call that “balanc[es] the need for information in a judicial proceeding” against the government’s constitutional prerogatives as set out in Article II of the Constitution.
There is, however, a potential problem with the Ninth Circuit’s admittedly legalistic view of the privilege. Since any erosion of the state secrets privilege ineluctably interferes with the government’s ability to conduct interrogations and counter-intelligence activities without fear of legal reprisals, one could argue that the Ninth Circuit has erred in giving the judiciary broad discretion to order the disclosure of potentially critical national security and counter-intelligence information. On this view, the fundamental mistake made by the Ninth Circuit is conceptualizing the privilege as a balancing test in the first place. To take this view is to vest in the federal courts a responsibility to make decisions about national security policy, decisions that are clearly not within the competence or constitutional mandate of the judicial branch.
A close reading of the Ninth Circuit’s decision goes a long way toward putting these fears to rest. The court explains that where the state secrets privilege applies, it applies in an unqualified way. Even the most compelling need on the part of a plaintiff to have a piece of evidence introduced will not overcome the government’s claim of privilege if the court is “satisfied that it applies.” Of course, it is quite possible that incompetent or politically motivated judges will miscalculate the nature and gravity of the government’s claim of privilege in a particular case, resulting in the improper disclosure of national security and counter-intelligence information. The risks of disclosure are real, an unfortunate but inevitable byproduct of allowing courts to evaluate assertions of the state secrets privilege.
But even so, would it make any sense to adopt a regime whereby every assertion of the privilege were automatically granted? Of course not, for in this alternate universe the state secrets privilege would prevent judges from doing any judging. If the privilege were always granted it would be an administrative procedure, a procedure requiring nothing more than a clerk to act on dismissal requests lodged by the U.S. Government. The Ninth Circuit’s case-by-case approach to evaluating privilege claims may not be perfect. But it is a nuanced, tempered solution that is designed to ensure that innocents remain free from arbitrary and unlawful restraint without hampering the executive branch’s efforts to protect the United States from terrorism.
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