Constitutional Law

Federal Court To Consider Case Involving Rendition, State Secrets Privilege

The Obama administration is preparing for its first major case dealing with the state secrets privilege, The Washington Independent and The New York Times report.

An appeal in the case of Mohamed v. Jeppesen Dataplan, Inc. will be heard Monday by the 9th U.S. Circuit Court of Appeals. Binyam Mohamed is suing a subsidiary of Boeing for assisting the CIA in transporting him during a rendition. At the trial level, and in many similar lawsuits throughout the Bush administration, all claims were dismissed after the government invoked the state secrets privilege.

Critics claim the privilege was originally meant only to prevent the release of national security secrets, and that the Bush administration unfairly broadened the scope of the privilege and used it to prevent any judgments on the legality of the program itself. Ben Wizner, a staff attorney with the ACLU, told The Times that, “Every single torture case filed against a U.S. official has been thrown out without any adjudication of law or facts” because of the early and broad use of the state secrets privilege. The Bush administration’s use of the state secrets privilege has effectively barred detainees from challenging their imprisonments, Wizner said Ben Wizner.

The Justice Department has not said whether it will continue to use the state secrets privilege in the same manner as the Bush administration. Critics of the Bush administration’s use of the privilege say they the new Justice Department will not follow the same path. Meredith Fuchs, general counsel of the National Security Archives, said, “We’ve asked that the Attorney General put in place a much better system for reviewing when the Justice Department will assert the state secrets privilege. Because once it’s asserted it’s tremendously powerful.”

Last spring, Wizner participated in an ACS panel discussion exploring the Bush administration’s use of the state secretes privilege. Video of that discussion is available here. Also ACS recently distributed an Issue Brief by Fuchs examining governmental transparency. Her article is available here.

Full post as published by ACS Blog on February 06, 2009 (boomark / email).