Federal Judiciary

New challenge on “state secrets”

By Akin Gump Supreme Court Practice Group

Seeking to go forward with a legal challenge to the Bush Administration’s secret “rendition” program, lawyers for individuals claiming to have been tortured during that program urged a federal appeals court Monday to turn aside an Obama Administration move to shut down the case altogether.

In a brief filed in the Ninth Circuit Court, the attorneys said that the government is attempting to create “an expansive immunity regime shielding any Central Intelligence Agency contractor from liability” to torture victims, “regardless of the circumstances.”

The case, Mohamed, et al., v. Jeppesen Data Plan, et al. (Circuit docket 08-15693), is almost certain to reach the Supreme Court at some point. It may be delayed, however, if the Circuit Court agrees to the government request to reconsider the case en banc.

A Circuit Court panel, in a ruling on April 28, narrowed significantly the government’s power to block lawsuits entirely, before they can advance, by claiming the need to protect “state secrets.”  A post discussing the ruling can be read here. The Justice Department sought rehearing in a filing June 12 (see this post).

Under the “rendition” program, individuals suspected of terrorist activity were picked up abroad, and transferred to other countries for detention, interrogation, and, in some cases, abuse and torture, according to the claims made by former detainees.  The lawsuit is aimed not only at the federal government, but at a Boeing Co. subsidiary, Jeppesen DataPlan, Inc.  The former detainees contended that the San Diego-based air trnaposrtation firm provided theplanes and flights to the CIA to move detainees to so-called “black sites’ abroad.  (The company has also sought rehearing en banc.)

The Circuit Court on June 15 asked the ex-detainees’ lawyers to respond to the rehearing requests.  The “state secrets privilege,”
the brief contended, is meant only to limit certain items of evidence from coming into open court; it is not a shield against litigation altogether.  However, the brief said, the federal government continues to treat the two concepts as if they were one.

The brief acknolwedged that some courts “have permitted the government to invoke the evidentiairy state secrets privilege to terminate litigation even before there is any evidence at issue.  Those courts have in effect created a de facto non-justiciability rule.’

Nothing in Supreme Court precedent allows such an expansive reading of the privilege, the lawyers argued.  It seriously distorts constitutional principles of separation of powers, they contended, to hand over to Executive Branch officials who ran a program of “grave human rights abuses” to determine how a court case against them will be allowed to proceed.

Full post as published by SCOTUSBLOG on July 06, 2009 (boomark / email).