The five dissenting judges, noting that “abuse of the Nation’s information classification system is not unheard of”, warned that the state secrets doctrine “is so dangerous as a means of hiding governmental misbehaviour under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets”. They accused the majority of “gratuitously attaching ‘allegedly’ to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its officials as ‘torture flights’.”
The dissent argued that the matter should have been sent back to the District Court for the judge to decide whether any part of the lawsuit should go forward. Rather than throwing out the lawsuit wholesale at the outset, it would be “far better” for the government to have to make its claims of state secrets “with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit”.
The majority said that the ruling was “not intended to foreclose – or to prejudge – possible non-judicialrelief, should it be warranted for any of the plaintiffs”. It recognized that dismissal of the lawsuit deprived the plaintiffs of “the opportunity to prove their alleged mistreatment and obtain damages”, and eliminated “one important check on allege abuse by government officials and putative contractors”.
The majority pointed to a number of possible non-judicial avenues for remedy. As the branch of government that has access to the information that is being kept secret, it said, the executive “can determine whether plaintiffs’ claims have merit and whether misjudgement or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands”. Congress could “investigate alleged wrongdoing and restrain excesses by the executive branch”, the majority continued, and it could also enact compensation schemes or legislate to authorize “appropriate causes of action and procedures to address claims like those presented here”.
The five dissenting judges took issue with the majority’s suggestions, arguing that “not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief”; “Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter.” They added:
“Arbitrary imprisonment and torture under any circumstance is a gross and notorious act of despotism. But confinement and abuse of the person, by secretly hurrying him to prison, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government” [internal punctuation omitted].
The right to an effective remedy is recognised in all major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), ratified by the USA in 1992. Under Article 2.3 of the ICCPR, any person whose rights under the ICCPR have been violated “shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. Among other things, the ICCPR prohibits arbitrary detention, torture and other cruel, inhuman or degrading treatment or punishment, unfair trial, and discrimination in the enjoyment of human rights including the right to equal protection of the law.