April 2009

President Barack Obama has drawn praise for transparency reforms during his first 100 days in office, but his use of the "state secrets" privilege to squash lawsuits on torture and surveillance is drawing mounting opposition. 

On Tuesday, the Ninth Circuit Court of Appeals rejected the Justice Department's attempt to use the state secrets privilege to shut down an ACLU case challenging government rendition. As the Washington Independent reports, the Ninth Circuit reversed a lower court and reinstated a case challenging alleged rendition by CIA contractors (in Mohamed v. Jeppesen Dataplan). The Ninth Circuit held that the government's secrecy claim was so broad, it would shut down legal oversight and accountability for the entire CIA and its associates:

At base, the government argues here that state secrets form the subject matter of a lawsuit and [] require dismissal any time a complaint contains allegations [which themselves have] been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it "involves ‘allegations' about [secret] conduct by the CIA." This sweeping characterization ... has no logical limit-it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

The Ninth Circuit rejected that approach, it explained, not only because it was "unsupported" by case law, but because it "forces an unnecessary" face-off between the judiciary's duty to uphold the law and the executive's duty to protect national security. (PDF of opinion here)

While federal judges usually have the last word on these issues, they are not the only ones expressing skepticism at Obama's expansive use of the privilege.