Court Reins in State Secrets Privilege

NEW YORK -- In what may become a landmark decision, a federal appeals court ruled Tuesday that the "state secrets privilege" - routinely used by the government to block lawsuits against its officials - can only be used to contest specific evidence, but not to dismiss an entire suit.

The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government's "extraordinary rendition" program during the administration of former President George W. Bush.

The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly "disappear" five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture.

Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union.

During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. On Tuesday, the appeals court reversed that decision.

But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.

"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court," he said.

The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.

"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," Judge Michael Hawkins said.

Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.

"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.

"The extraordinary rendition program is well known throughout the world," noted Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination - in a U.S. court of law."

He told IPS that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantnamo last year without ever having been charged with a crime. Al-Rawi, now back in Britain, told Watt, "It's like winning the lottery."

Tuesday's Appeals Court ruling means that the government can assert the "state secrets" privilege for any specific piece of evidence, but not to end a case before it begins.

That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.

The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.  The five all claim they were kidnapped and transferred to various prisons, where they were interrogated and tortured. Eventually, in some cases after several years, they were released without charge.

The Obama administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.

If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardise national security secrets. But now it can no longer simply "assert" that privilege; it will have to convince a judge by arguing the point in court.