Wednesday, April 29, 2009

9th Circuit Rules Against Obama/Bush on State Secrets in Jeppesen Case

The Ninth Circuit Court of Appeals has rejected the Department of Justice arguments of "state secrets" in the suit against Boeing subsidiary Jeppesen Dataplans, Inc., and will let their suit go forward.

Glenn Greenwald reported yesterday: a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security....

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."
Astute legal observer, bmaz, over at Emptywheel/FDL, noted a small fly in the ointment, but concluded, "this is a big blow to the government and a win for the rule of law." The fly?
... it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it.
FAS Secrecy News notes a particular aspect of the ruling, which speaks to the importance both Greenwald and bmaz give the case:
In another crucial distinction, the court said that the fact that certain information is "classified" does not necessarily mean that it is "secret" for purposes of the privilege.

"A rule that categorically equated 'classified' matters with 'secret' matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process," the court said.
Greenwald noted other, similar statements in the brief.

While it indeed looks like Binyam Mohamed and the other plaintiffs in the Jeppesen case will get their day in court (referring to damages incurred by them as torture victims in the CIA's secret rendition program, using Boeing subsidiary Jeppesen Dataplan for critical flight planning and logistical support services and aircraft crews), the government has not responded yet to the ruling, leaving open the possibility of further appeals.

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