Breaking News

“State secrets” doctrine narrowed

Deepening a split among lower courts, and thus adding to chances the Supreme Court will be drawn back into the dispute, a federal appeals court on Tuesday narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect “state secrets.”  It did so by proclaiming an important role for judicial power “in the context of secret Executive conduct.”

The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), renews 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 shipping them to other countries for interrogation and, sometimes, torture.  The Supreme Court turned down the first case on the “rendition” program 18 months ago (El-Masri v. U.S., 06-1613), but the issue now seems sure to return.

The Ninth Circuit’s decision in Mohamed involves a lawsuit by five foreign nationals, who have sued a San Jose-based air transportation firm, Boeing subsidiary Jeppesen Dataplan, Inc., contending that it 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.  A federal judge threw out the case after the Bush Administration invoked the “state secrets privilege” — a claim that the Obama Administration has since backed.

Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.

The Fourth Circuit said a lawsuit by one claiming to have been a “rendition” victim can’t go forward if secrets form “the very subject matter” of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.

The “state secrets privilege,” the Ninth Circuit ruled, applies only to evidence — one item at a time.  If an item of evidence is a secret, it will be kept out of the case.  But if the information about government action is not secret, it can be offered and tested in court, it said. “The state secrets doctrine,” it said, “applies to evidence, not information.”

Thus, it went on, even if the government claims that information about the “rendition” program is classified, that is no bar to a court exploring specific evidence that is not itself a secret.  “The question is which evidence is secret and may not be disclosed in the course of a public trial,” the Circuit Court said.

The five foreign nationals who sued in the Mohamed case, the Ninth Circuit said, should be allowed a chance to offer proof that the private air service firm provided support for the “rendition” flighuling is based upts “with actual or imputed knowledge that the passengers would be tortured at their destinations.”

If the trial judge finds that specific items of evidence are “state secrets,” those would have to be barred from the trial.  But the trial itself need not be shut down completely just because the “rendition” program was a secret operation, the Court concluded.

The decision is based primarily upon two controversial propositions that have divided the lower courts.

One is that the Supreme Court’s 1875 decision in Totten v. U.S. does not justify the complete shutdown of a case at the beginning just because the “subject matter” — the claims made — involves secret information.  The Totten decision, the Circuit Court said, only requires dismissal of a case if the suing party had a secret contract with the government, and is suing over the terms of that deal.  No such contract is involved in the “rendition” case, it said, so Totten does not even apply. Jeppesen may have had a deal with the government for services, it said, but Totten only reaches a case where the suing party had a contract with a federal agency.  The suing parties here are foreign nationals, who had no such contract, it noted.

The second proposition underlying Tuesday’s ruling is that the Supreme Court’s 1953 decision in Reynolds v. U.S., spelling out when the evidence privilege based on “state secrets” applies, does not compel to total dismissal of a case where the government claims secrets may be at stake.

“By excising secret evidence on an item-by-item basis, rather than foreclosing litigation altogether at the outset,” the Circuit Court said, “Reynolds recognized that the Executive’s national security prerogatives are not the only weighty constitutional values at stake.”

National security, it said (quoting from the Supreme Court’s detainee rights ruling in Boumediene v. Bush last June), ” ‘subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

On that point, too, the Ninth Circuit differs with the Fourth Circuit in El-Masri.  The Fourth Circuit had spoken of only a modest judicial role in overseeing cases in which secrets might be involved, while the Ninth Circuit put special emphasis on separation-of-powers principles to support an active judicial role in such cases.

The Ninth Circuit commented: “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct.”

The Obama Administration has the options, if it plans to challenge the new decision, of asking for review en banc by the full Ninth Circuit, or by taking the case directly to the Supreme Court.