USA: Secrecy blocks accountability, again: Federal court dismisses 'rendition' lawsuit; points to avenues for non-judicial remedy

September 10, 2010

USA: Secrecy blocks accountability, again: Federal court dismisses 'rendition' lawsuit; points to avenues for non-judicial remedy

In February 2008, the District Court ruled in favour of the government and dismissed the lawsuit. The decision was appealed to the US Court of Appeals for the Ninth Circuit. At a hearing in February 2009, the Justice Department revealed that, under President Obama, the administration would be adopting the same position on the case as its predecessor. On 28 April 2009, the three-judge panel issued its unanimous opinion, rejecting this position. The subject matter of the lawsuit “is not a state secret”, they wrote, “and the case should not have been dismissed at the outset”. It took issue with the administration’s position, saying that if accepted it would “effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.” It added that “separation-of-powers concerns take on an especially important role in the context of secret Executive conduct”.

The Obama administration appealed for a rehearing in front of the full Ninth Circuit court. In its November 2009 brief, it urged the judges to “examine the declarations of the Director of the CIA, with due regard to the deference owed to the national security judgments of the Executive Branch”. State secrets “are so central to this case”, the Justice Department argued, “that no further litigation can proceed without an undue risk of disclosing information relating to national security”. For the lawsuit to succeed, the brief continued, it would require “establishing the existence of the very thing – a secret intelligence relationship between Jeppesen and the CIA – that can neither be confirmed nor denied”. Similarly, establishing liability on the basis of the detainees’ claims “would also require plaintiffs to prove that agents of the United States and certain foreign governments arrested and detained them at various locations abroad and subjected them to specific interrogation techniques”. Such information, the administration asserted, could not be disclosed “without jeopardizing the national security of the United States”.

By six votes to five, the Ninth Circuit voted in favour of the government and affirmed the original District Court ruling. The majority stated that the case has required the court to address “the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security”. This was “one of those rare cases”, it said, where the demands of national security meant that the lawsuit “must be dismissed” at the outset. The majority explained that:

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets… The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests… We are precluded from explaining precisely which matters the privilege covers lest we jeopardize the secrets we are bound to protect.”

They further concluded that there was “no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets”. Despite the fact that some information about the CIA’s rendition program was in the public realm, “Jeppesen’s alleged role and its attendant liability cannot be isolated from aspects that are secret and protected… Whether or not Jeppesen provided logistical support in connection with the extraordinary rendition and interrogation programs, there is precious little Jeppesen could say about its relevant conduct and knowledge without revealing information about how the United States government does or does notconduct covert operations [emphasis in original]”.