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DOJ seeks state secrets case rehearing

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Department of Justice (DOJ) filed a brief Friday to petition the US Court of Appeals for the Ninth Circuit to rehear a state secrets privilege case en banc. A three-judge panel for the Ninth Circuit previously ruled that the state secrets privilege does not bar a lawsuit against a company that allegedly provided logistical support for CIA rendition flights. The suit was brought by plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi, who alleged that Boeing subsidiary Jeppesen Dataplan knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. In 2007, the DOJ intervened before the defendant filed an answer, maintaining that the lawsuit posed a risk to national security. The appellate court overturned the lower court's dismissal of the case, ruling that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved. In their petition for a full court rehearing, the government argued that:This is one of those few cases warranting review by the Court en banc. The panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure. The panel's approach is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court's sister circuits on questions of exceptional importance applying the privilege. We emphasize that the Government's request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege.The government also cited recent comments by President Barack Obama to argue that, while the US will not invoke the privilege to prevent disclosure of "the violation of a law or embarrassment to the government," the privilege is necessary to protect national security. The Constitution Project expressed dismay over the en banc request, saying that the:decision to continue to press its overly-expansive state secrets claim undermines the new administration's commitment to transparency, accountability and the rule of law. We are very disappointed by the Department of Justice's continued assertion of the Bush administration interpretation of the privilege as an immunity doctrine. The Ninth Circuit's decision in April properly recognized the critical role of courts in checking executive branch secrecy claims. The bedrock of our nation's government is a system of checks and balances - a system that is undermined by the overbroad version of the state secrets privilege asserted by the Obama administration.Last week, the US House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties heard testimony on the state secrets privilege in advance of consideration of the State Secret Protection Act that would reform the assertion of the privilege. In February, the Obama administration reasserted the state secret privilege in this case, drawing criticism from advocacy groups including the ACLU. On the same day, Attorney General Eric Holder ordered a review of all government claims invoking the state secrets privilege. The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance. In September, a secrecy "report card" released by OpenTheGovernment.org revealed that the Bush administration invoked the state secrets privilege "45 times - an average of 6.4 times per year in 7 years (through 2007) - more than double the average (2.46) in the previous 24 years."

Full post as published by JURIST - The Paper Chase on June 12, 2009 (boomark / email).