In a ruling sure to fan the flames of controversy over Bush-era torture policies, the 9th Circuit Court of Appeals this week strongly repudiated the Bush and Obama administrations’ arguments of a broad reading of the so-called "state secrets" doctrine, which the Bush administration in particular had used to smother potentially embarrassing litigation in its crib.
Although the ruling seems solidly grounded in what little precedent exists on the subject, the rarity of the doctrine’s invocation prior to the Bush administration almost assures an appeal to the Supreme Court.
The case, Mohamed et al., v. Jeppesen, was brought by five detainees of Gitmo, various CIA “black sites,” or the prisons of third countries rather less scrupulous in the utilization of coercive interrogation techniques, and it accuses the Boeing subsidiary Jeppesen Dataplan of conspiring with the CIA in their rendition and torture. The gruesome story of the named detainees and their treatment at the hands of the CIA and its fellow intelligence services had received international publicity prior to the filing of the complaint, which had been drafted carefully to avoid the invocation of the state secrets privilege: the plaintiffs named only the contractor Jeppesen, not the CIA as defendant.
No matter. The US government, under Bush, intervened as an interested party and immediately asserted the state secrets privilege as a blanket defense to the action and moved to dismiss the entire case on the grounds that the subject of the case itself was a matter of national security, publicity be damned. The Northern District of California agreed, and the plaintiffs appealed.
The state secrets doctrine in America has its origins in the notorious trial of Aaron Burr for treason and is an evidentiary privilege not unlike attorney-client privilege. Prior to the Bush administration, the doctrine appeared most notably in the Burr trial, in a suit filed by a Civil War-era spy, and, more ignominiously, a suit filed 1952 by widows of American airmen who died due to the gross negligence of the Air Force and its contractors, United States v. Reynolds.
The Bush administration enthusiastically seized on the rather unique facts of the Civil War case, Totten v. United States, and proceeded to bludgeon a rather overly pliant justice system with it. No longer. The Court expressed shock a couple months back when it offered the Obama administration the chance to revisit the DOJ’s approach to the case, and the Obama team, in something of a sop to the intelligence community, actually tried to expand the doctrine. That approach has now been roundly rejected, and the more traditional, limited concept of the state secrets doctrine as an evidentiary privilege, rather than a bar to suit, was reaffirmed.
The grisly facts of the case speak for themselves: genital electrocution and mutilation, broken bones, psychosis-inducing sleep deprivation, and the harrowing screams of women and children blasted into solitary and seemingly unending darkness. The Court, citing ample evidence, made a point of rebuking for the record the government’s bureaucratic instinct of burying information that is shameful, rather than truly threatening to national security. Is anyone really surprised?
Perhaps the executives of Jeppesen, who once bragged to a group of astonished new employees that they "did all the torture flights," will exhibit rather less pride of ownership of their role in this sorry affair, as the legal tide turns against them. Regardless, this decision by the 9th Circuit is a direct challenge to the apologists of overarching executive authority, and a triumph of reason over obfuscation. ®