April 28, 2009 | By Kurt Opsahl

Ninth Circuit Issues State Secrets Opinion, Allows Rendition Case to Proceed

Today, the Ninth Circuit Court of Appeals rejected the Government's expansive view of the state secrets privilege, allowing an "extraordinary rendition" case against Jeppesen Dataplan to proceed. In the case, which was brought by the ACLU, the plaintiffs allege that "Jeppesen provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture."

The government had moved to dismiss the case pursuant to the state secrets privilege, and the federal District Court agreed, leading to the appeal. While the appeal was filed last year, Obama Administration adopted the Bush Administration's legal position.

The Ninth Circuit's decision is strong in several ways. First, it recognized that the government was arguing that any actions it called "secret" should be immune from law. The Court firmly rejected that claim:

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.

Second, the Court rejected the government's argument that it could ban all reference to any "information" it deemed a secret, instead limiting the privilege to specific evidence, decided on a "item-by-item" basis:

... the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret.

Finally, the court rejected the government's claim that facts always remained "secret" and outside the scope of litigation unless the government formally admits them:

Any argument that the contents of any evidence are and remain categorically secret for purposes of the privilege unless and until the government says otherwise is meritless.

This decision should be a big help to EFF, since we face similar government overreaching state secrets claims in the Jewel v. NSA warrantless wiretapping case, which aims to stop the illegal dragnet surveillance of millions of ordinary Americans. The government's state secrets claims in Jewel are currently set for hearing this summer.


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