Federal Judiciary

New claim of “state secrets” doctrine

By Akin Gump Supreme Court Practice Group

In a move that might head off, or at least delay, Supreme Court review of the government’s power to shut down lawsuits by claiming that they threaten secret data, the Obama Administration on Friday asked the Ninth Circuit Court to reconsider, en banc, an April decision narrowing that authority.  The petition for further review in Mohamed,et al, v. Jeppesen DataPlan, et al., (Circuit docket 08-15693) can be found here.

The panel decision in the case, issued on April 28, deepened a split among federal appeals courts on the scope of the so-called “state secrets privilege.”  The ruling also renewed a controversy over the federal courts’ role in judging the legality of the government’s secret “rendition” program of picking up terrorism suspects abroad and shpping them to other counries for detention, interrogation and, in some cases, abuse and torture, according to claims by former detainees.  (A discussion of the panel ruling can be found in this post )

The resulting split is the kind of development that can lead the Supreme Court to take on a controversy and resolve it, if the case is appealed there.  Sooner or later, it is expected that this case will, in fact, reach the Court.  If the Circuit Court agrees to reconsider it before an 11-judge Court, that might at least slow the progress of the case, and conceivably could result in a decision that removed the conflict among lower courts, thus diminishing chances of review by the Justices.

The Administration’s challenge to the Circuit Court panel’s ruling came about three weeks after a major speech by President Obama, on May 21, in which he said that the “state secrets privilege” had been “over-used.”  The President said then that “my administration is nearing completion of a thorough review” of prior claims of the privilege.

It is unknown whether that review has been completed.  But, in Friday’s filing, the government told the Circuit Court that, after the April ruling, a new review of the case had been made “at the highest levels of the Department of Justice.”

It added: “Based on that review, it is the Government’s position that permitting this suit to proceed would pose an unacceptable risk to national security, and that the reasoning employed by the panel would dramatically restructure government operations by permitting any district judge to override the Executive Branch’s judgment in this highly sensitive realm.”

A separate request for en banc review was made by the private company that also was sued in the case, Jeppesen DataPlan, Inc. The lawsuit contended that the San Jose-based air transportation firm, a Boeing subsidiary, provided the planes and flights to the Central Intelligence Agency to move detainees to foreign destinations after their capture, knowing that they would be mistreated.  (The Jeppesen petition can be downloaded, by those with PACER accounts, from the website of the Ninth Circuit.  It is a large file; it is accessible on docket 08-15693 as entry 56.)

A federal judge threw out the case after the Bush Administration invoked the “state serets privilege.”  Just after the Obama Administration had taken office in January, it supported the prior challenge to the case in the Ninth Circuit. The day following the panel ruling in April, however, the President said that his government had not had time “to effectively think through” the doctrine because the government had to “respond to the immediate case in front of us.”  He said then that top aides were working on the issue “as we speak.”

Full post as published by SCOTUSBLOG on June 13, 2009 (boomark / email).