By Jonathan Abrams –
A big win for the Obama administration’s strong position on the state secrets privilege continues to raise questions of why the administration has taken such an aggressive position and what new Justice Department guidelines concerning state secrets means for future litigation.
Mohammed v. Jeppesen Dataplan centers on the Central Intelligence Agency’s (CIA) extraordinary rendition program. Plaintiffs—five foreign nationals—allege that they were arrested overseas and then transferred to American custody. They were then flown to Egypt, Morocco, and Afghanistan where they were subjected to physical and psychological torture. They contend that defendant Jeppesen Dataplan provided flight planning and logistical support services to the aircraft and crew on all flights transporting each of the plaintiffs to the various locations where they were detained and tortured, bringing suit against Jeppesen under the Alien Tort Statute.
Before Jeppesen could answer the complaint, the United States government intervened and moved to dismiss the complaint under the state secrets doctrine. General Michael Hayden, then-director of the CIA, filed a declaration stating that because highly classified information was central to the allegation, disclosure of such information cannot be avoided and would be harmful to U.S. national security and, therefore, the case must be dismissed. The district court granted the motion to dismiss and the plaintiffs appealed.
After the district court’s ruling, President Barack Obama succeeded President George W. Bush. There was great hope among those who disdained President Bush’s aggressive policies that President Obama would not embrace such a strong position on the state secrets doctrine. They had reasons to be hopeful as evidenced by President Obama’s executive orders calling for: (1) closing of the prison at Guantanamo Bay; (2) closing of the CIA’s secret prison system, and; (3) ending the Agency’s use of interrogation techniques that some describe as torture. But in oral argument before a three-judge panel of the Ninth Circuit, Justice Department lawyers held to the Bush administration’s position: the whole suit must be dismissed. The Ninth Circuit disagreed, finding that the case can proceed to discovery where the judge can handle claims of state secrets on an individual basis.
On review to an en banc Ninth Circuit, Obama’s Justice Department took the same strong position in their briefs, claiming that the “state secrets are so central to this case that the litigation cannot move forward without threatening the exposure of that privileged information.”
On September 8th, the Ninth Circuit ruled for Jeppesen Dataplan and the U.S. government. By a vote of 6-5, the court held that based on its independent review of the evidence (which for classification reasons it was only able to describe vaguely (see pg. 13545)), at least some of it constitutes a state secret. The court assumed—but did not decide—that plaintiffs could make their prima facie case without the privileged evidence, but, nonetheless, the lawsuit must be dismissed because there is no conceivable way for the plaintiffs’ case to proceed without creating an unjustifiable risk of revealing state secrets (pg. 13549).
In the background of this case is a memo signed by Attorney General Eric Holder from September 23, 2009, entitled “Policies and Procedures Governing Invocation of the State Secrets Privilege.” The memo sets out a standard for invoking the privilege: disclosure of the materials could be expected to cause “significant harm” to national security. This is a higher bar than that set by the Supreme Court in the Reynolds opinion which created the state secrets doctrine (information could be withheld whenever there is “reasonable danger” of exposing national security information). The memo proclaimed that it will not invoke the privilege in order to conceal violations of the law or prevent embarrassment to the government (the “state secret” that was concealed in Reynolds was the poor condition of the crashed Air Force aircraft, not the critical national security secret represented by the government at the time). Invocation of the privilege is not allowed until it is approved by a review committee, then the Deputy Attorney General, and lastly the Attorney General.
Despite these new procedures, the Justice Department did not deviate from the Bush administration’s strong position on state secrets in Jeppesen Dataplan (the opinion indicates that Attorney General Holder approved the invocation of state secrets, suggesting the new procedures were used (pg. 13529)). Additionally, Obama’s Justice Department has shown that it is not averse to petitioning for dismissal of a lawsuit on state secrets grounds in other cases it did not inherit (see Jewel v. NSA). Perhaps the Obama administration felt a need for continuity with past executive branch positions. This hypothesis is unlikely given that Obama campaigned against Bush’s aggressive use of state secrets. Moreover, his executive orders on Guantanamo, CIA prisons, and CIA interrogation techniques issued three days after taking office demonstrate that he is not afraid to switch executive branch positions in war-on-terror issues. The strong position on state secrets is additionally puzzling given the President’s issuance of new guidelines concerning classified materials, which have an overall theme of decreasing the amount of classified material.
It may well be that the information that was truly “state secrets” that so pervaded the plaintiffs’ claims that there was no chance that the litigation could proceed without causing the classified materials from being divulged, despite the Justice Department’s new guidelines calling for invocation of the privilege only in the most pressing circumstances. Considering the Obama administration has not invoked the privilege in calling for dismissal of a lawsuit in a case begun after the issuance of Attorney General Holder’s memo, we will have to watch closely to see if the more stringent guidelines have any effect.
Image courtesy of the Wall Street Journal.