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

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. 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

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