September 13, 2010 | By Cindy Cohn

9th Circuit's Troubling New State Secrets Decision Demonstrates Need for Reform

The 9th Circuit Court of Appeals, ruling en banc in a case called Mohamed v. Jeppesen Dataplan, yesterday adopted the Bush and Obama Administration's joint Executive Branch power grab in the form of the state secrets privilege. The Court, in a 6-5 en banc ruling, dismissed a case brought by victims of horrendous torture and forced disappearance against a Boeing subsidiary whose employee admitted that they knew they were handling the "torture flights." In refusing to hear the case, even the portions that could be based solely on already public evidence, the Court shunned its role as a co-equal branch of government protecting the rights of individuals against overreaching government. It also demonstrated just how badly we need Congress to step in and reform the state secrets privilege.

EFF had filed an amicus brief in the case, warning about this outcome: "Adopting the government's position would abdicate the Judiciary's Article III responsibility to adjudicate the constitutional and statutory limits on Executive authority."

Unfortunately, abdicating its responsibility is just what the Court did. It ordered summary dismissal of the complaint without allowing any discovery, or presentation of the public evidence or even a plan by the plaintiffs to litigate the case while respecting the necessary secrecy, something that has been regularly done in cases involving national security. And in doing so it created a dangerous risk that the Courts will allow the Executive broad unfettered powers to "turn the Constitution on and off at will," exactly what the Supreme Court refused to do in Boumediene v. Bush. In that case, the Supreme Court directly addressed and rejected the government's main argument in Mohammed, that the case involved a "painful conflict between human rights and national security." The Supreme Court said:

Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.

So what does this mean for Jewel v. NSA, EFF's case against the government for mass warrantless wiretapping of ordinary Americans which has also faced broad state secrets claims from the government?

Likely nothing. The Ninth Circuit expressly noted that its analysis would be different where, as with FISA, Congress has passed a specific law on the subject.

In its almost apologetic Jeppesen Dataplan ruling, the 9th Circuit also emphasized that "it should be a rare case where the state secrets doctrine leads to a dismissal at the outset of the case." We strongly agree. And while we think the Court got it wrong in Jeppesen Dataplan, where the victims were foreigners who were injured largely on foreign soil by foreign agents, it would be an even worse tragedy if the Court abdicated its role to protect individual rights and privacy when the victims are millions of American citizens on American soil who have no connection to terrorism and who simply want basic privacy in their use the phone and the internet.


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