After losing its argument before a three-judge panel of the Ninth Circuit Court of Appeals that the “state secrets privilege” requires the dismissal of a lawsuit by alleged torture victims, the Obama administration today has asked the full Ninth Circuit to re-hear the case, which was the first challenge to the Bush administration’s “extraordinary rendition” program.
As I’ve written before, Mohamed v. Jeppesen Dataplan involves five victims of CIA rendition, or “torture by proxy” who sued the subsidiary of Boeing that allegedly helped the CIA fly the men, captured abroad, to secret CIA prisons in cooperating countries. Because federal officials are often immune from liability, the men, represented by the American Civil Liberties Union, sued the private aviation data company. But the U.S. government, then under President George W. Bush, intervened in the case and argued that allowing it to proceed would endanger national security by revealing information about CIA activities.
Since taking office, of course, President Obama has insisted that the United States no longer engages in or sponsors torture, so the ACLU hoped the new administration would change it’s position. But it hasn’t, and after losing its argument at the federal court of appeals in April, the Justice Department today filed a request with the court to re-hear the case *en banc. *
Claiming that “the [three-judge] panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure,” the government insists that the court’s approach “is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court’s sister circuits on questions of exceptional importance applying the privilege.”
The Department of Justice goes on to emphasize that this decision was not made by some low-level Justice Department functionary, but at the highest levels of government:
We emphasize that the Government’s request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege. [...] In this case, then-Director of the Central Intelligence Agency General Michael Hayden made the expert determination that continued litigation poses an unacceptable risk of disclosing state secrets” and concluded that “no information can be adduced on the public record to establish or refute [plaintiffs’] claims, or any defenses thereto, without jeopardizing the national security of the United States.”
Here’s the ACLU’s response, from staff attorney Ben Wizner:
The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions. The CIA’s rendition and torture program is not a ‘state secret;’ it’s an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability.