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The Secrets We Keep from Ourselves

The Ninth Circuit Court of Appeals has just rejected President Obama’s claim of a wildly-overbroad “state secrets” privilege in Mohamed v. Jeppesen Dataplan, a suit filed by five victims of the “extraordinary rendition” program against the Boeing subsidiary that flew planes for the rendition program. The district court had dismissed the suit after the Bush administration claimed that everything about the program was a “state secret.” Then-CIA-director Michael Hayden told the court that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” The Obama Administration surprised us in February by continuing to assert the same privilege at the court of appeals.

But today the panel that heard that appeal said “no.” Remanding the case back to the lower court, all three judges agreed that the all-or-nothing “state secrets” doctrine advanced by the Bush and Obama administrations “has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad” and that “according to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

The panel added that it was “the central judgment of the Framers” that “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

By sending this case back to the lower courts, the Ninth Circuit has ensured that these rendition victims can finally have a day in court, and that there can be a judicial reality check on executive branch claims of secrecy. Most importantly, the appeals court reminds us today that the widely-known fact of a U.S. torture program can't be deemed a "state secret" just because the government doesn't want to talk about it.