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Obama Administration Handed Another Defeat In Another 'State Secrets' Case

April 28, 2009 4:19 PM

The U.S. Court of Appeals for the Ninth Circuit Tuesday rejected the Obama administration's claim that a lawsuit involving extraordinary rendition must be halted for national security reasons, and reversed a lower court dismissal of the lawsuit.

As we reported in February, the case involves five men who claim to have been victims of extraordinary rendition who sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured. The Bush administration, and then the Obama administration argued, that the case would

The court found that United States v Reynolds -- the "state secrets" precedent the Obama administration had been relying on to block the lawsuit -- "recognizes that the Executive’s national security prerogatives are not the only weighty constitutional values at stake: while '[s]ecurity depends upon a sophisticated intelligence apparatus,' it 'subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.'"

Read the full Appeals Court decision in Mohamed et al v Jeppesen Dataplan, Inc. HERE.

A press release from the American Civil Liberties Union, which is representing the plaintiffs, quotes one of the men, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime.

"I am happy to hear this news," Al-Rawi said. "We have made a huge step forward in our quest for justice."

"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. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

The Obama administration did not immediately have a comment. But two months ago, Justice Department spokesman Matt Miller said of the case, "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court's decision in Reynolds that the privilege not 'be lightly invoked.'"

Miller said that Attorney General Eric Holder has started a review of all state secret privilege matters.

"The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations. It is vital that we protect information that, if released, could jeopardize national security." 

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said then.

Sen. Russ Feingold, D-Wis., who earlier today said that the Obama administration "seems reminiscent" of the Bush administration in its invocation of state secrets, has reacted to the 9th Circuit's decision by calling it "the latest example of courts being skeptical of the government’s argument that entire cases should be dismissed based on the assertion of the state secrets privilege without any evidence being considered."

The Obama administration has been invoking the "state secrets" argument in quite a few court cases, among them Jewel v. NSA, where the Electronic Frontier Foundation (EFF) is challenging the NSA surveillance by suing on behalf of AT&T customers whose records may or may not have been caught up in the NSA "dragnet" (read more on that HERE); and Al-Haramain v. Obama, in which the leaders of a now-defunct Islamic charity, allege that the National Security Agency under President Bush engaged in illegal warrantless wiretapping (more on that HERE.)

-- jpt

April 28, 2009 | Permalink | Share | User Comments (24)

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has anyone ever thought that this recession has been bought upon by the greed of mans heart and the love of money also doesn't it say in the last days a powerful world leader will come on the scene to fool every one in to thinking that the economy will pick up and then half way through his term he will deceive the nation doesn't any one read the bible anymore believe in Christ not in worldly mans lies.

Posted by: bob | May 5, 2009 3:40:44 AM

JC, i agree with you. i voted for Obama and think it is essential that there be no use of "state secrets." i have no doubt that the administration will respect the law and give these people a day in court or walking papers. "state secrets" and extraordinary renditions practiced extensively, almost exclusively by the previous administration (this particular case is from the previous administration) have no place in our nation.

Posted by: Paul Wall | Apr 29, 2009 9:52:26 AM

He opened a can of worms and now cannot put the lid back on...hmmm..hmmm

Posted by: Frank | Apr 29, 2009 9:20:17 AM

tin can wrote: "Anytime the Obama administration is handed a defeat it is a great day in America!"

Spoken like a true unpatriotic anti-American GOP supporter!

Posted by: SearamblerOne | Apr 29, 2009 8:53:22 AM

This is only 1 example that demonstrates Obama will make mistakes. Fortunatly, he has been tested on the limits of his powers. The final test will be how he reacts to this. If he accepts the ruling, he will have proven himself. If he rejects the ruling, he will lose most of his support. As for bush, this is nothing new.

Posted by: KsDevil | Apr 29, 2009 8:39:19 AM

Eight years later and the leftist loons are back to a 9/10 mentality. Self-Righteousness in retrospect is easy and cheap. I want the government to do whatever it has to do to keep this country and her citizens safe from terrorism and the brutality these pigs perpetrate on their fellow human beings.

Posted by: Peggy | Apr 29, 2009 3:45:57 AM

America can't spread peace and love around the world as long as it commits even worse evil than its enemies. If we are to expect other countries to be held accountable for their wrongs and inhumane acts, then America will have to own up to its own wrongs committed.

Posted by: faceUPamerica | Apr 29, 2009 3:08:35 AM

As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil that they set out to destroy.
— Christopher Dawson

Posted by: Vet | Apr 29, 2009 1:56:20 AM

yes, ..it's such a terrible thing when the elected government of the United States has to go to the courts to see if what they do, or want, is legal.

we certainly wouldn't want the president or his administration adopting a 'signing statements' or 'if the president does it, it's not a crime' attitude to casually ignore the laws of the land and commit crimes.

brings to mind a recent administration of the last 8 years

Posted by: Vet | Apr 29, 2009 1:17:41 AM

Anytime the Obama administration is handed a defeat it is a great day in America!

Posted by: tin can | Apr 29, 2009 12:03:30 AM

I personally would like to believe that this was the Constitutional scholar Obama's way of putting the policy to a proper test in the courts to confirm its illegality, rather than a simple desire to continue discredited Bush-era policies, but for whatever reason, I'm glad the proper decision has come down.

Posted by: Hokuto | Apr 28, 2009 10:18:22 PM

"Good. This case is an excellent example of why I donated money to both Obama's campaign and the ACLU last year. We returned competence to the Whitehouse in one fell swoop, but it will take time and diligence to get our system of checks and balances repaired."

You donated to the ACLU? Bleh.

And, we returned competence to the WH, and you think we have checks and balances? Bleh again. There is no competence in the WH, and there are definitely no checks and balances in DC. The Democrats are running amok. However, karma will catch up with them.

Posted by: JustMe | Apr 28, 2009 9:28:34 PM

Nobody at the airline had the smarts to ask the CIA "do you have a warrant for that"?

Nobody at ATT knew to ask the NSA "do you have a warrant for that"?

Anyone who collaborates with illegal activities is liable.

The CIA or FBI or NSA ask you for something, make them follow the law. Follow the old adage "if you aren't the one who called the cops, don't talk to them":

Posted by: Flash Override | Apr 28, 2009 8:53:24 PM

Much as I am overall pleased by Obama's performance, I am glad this happened. Democracies have certain inherent disadvantages; public openness is one. At the very least ALL of congress should be in the know about everything that is being done, or they can't cast informed votes.

Posted by: JC | Apr 28, 2009 7:40:37 PM

ANYONE who favors allowing the Government to invoke "State Secrets" in more than 5% of the most extreme cases is delusional, partisan, ignorant, Foolish and downright dumb. ALL governments are crooked and guilty of extreme rights abuses. This is trus of BOTH Republican AND Democratic rulerships. The momoent you allow a Government to invoke "State secrets" you have begun the journey to a dictatorship! Johnny El.

Posted by: Johnny El | Apr 28, 2009 6:38:26 PM

legal time bomb is ticking for Bush, Cheney and the associated tortures and malfeasance of the extended Bush crime family.... only a matter of time now until they're all brought to justice

Posted by: USA | Apr 28, 2009 6:15:58 PM

People donate to the ACLU? Please don't be fooled! Barry cares very little about keeping us safe. This is a ploy get some credibility w/ real Americans. Code Pink can rest assured he is w/ them all the way! :)

Posted by: chris | Apr 28, 2009 6:09:34 PM

Sorry, Obama! We did not make you president to merely continue Bush's gross misuse of state secrets. But, if you do not realize that by now - you will have to learn the hard way as well.

Posted by: Potato Cake | Apr 28, 2009 5:55:31 PM

The U.S. Court of Appeals for the Ninth Circuit has always been a bunch of nuts. Don't worry BO take it to the SUPREMES and you will get your STATE SECRETS.

Posted by: Don't RENDITION me Bro! | Apr 28, 2009 5:35:49 PM

Sorry. Comments directed at jhw539. Code Pink speaks the truth.

Posted by: Harry Bergeron | Apr 28, 2009 5:31:29 PM

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