EFF filed an amicus brief in the Ninth Circuit's en banc review of Mohamed v. Jeppesen, a case brought by the ACLU challenging the CIA's extraordinary rendition program. A panel of the Ninth Circuit Court of Appeals had rejected the government's argument that the case had to be dismissed at the outset due to the state secrets privilege. The panel decision is now being considered by a larger, en banc panel of the Court.
EFF notes that the government has made the same dangerous and overreaching state secrets arguments in the domestic warrantless wiretapping cases handled by EFF. The brief begins:
This case is another in a set of post-September 11, 2001 cases in which the Executive, having made new and tremendously broad assertions of its unilateral power, seeks to prevent the Judiciary from adjudicating the lawfulness of those new powers. To do so, the Executive skews the relevant caselaw on the state secrets privilege, attempts to rely on a case in which the privilege was not even the basis for the decision and claims that the court must blind itself to credible, admissible, nonsecret evidence because the Executive has determined that it cannot confirm or deny a particular fact. Adopting the government’s position would abdicate the Judiciary’s Article III responsibility to adjudicate the constitutional and statutory limits on Executive authority.
Oral argument is scheduled in the case in San Francisco on December 15, 2009. EFF has been urging Congress to reform the state secrets privilege.