So Gross And Notorious An Act Of Despotism

by guest poster Gary Farber.

To bereave a man of life, or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole kingdom. But confinement of the person, by secretly hurrying him
to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of
arbitrary government. …

— 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765)

I am not a lawyer; I'm just a guy who has cared passionately about civil liberties and our Constitution all his life, and who has read a lot of court decisions.

I'm quoting Blackstone, above, from a specific court decision, in fact: Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. 

I'm quoting Justice Scalia quoting Blackstone, with whom Justice Stevens joined in dissenting. 

Which brings to yesterday's decision, Mohamed et al. v. Jeppesen Dataplan, Inc., by the Ninth Circuit Court of Appeals.

Background:

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan,
Inc., a subsidiary of Boeing Company, on behalf of five extraordinary
rendition victims. The suit charges that Jeppesen knowingly
participated in these renditions by providing critical flight
planning and logistical support services to aircraft and crews used by
the CIA to forcibly disappear these five men to torture, detention
and interrogation. According to published reports, Jeppesen had actual
knowledge of the consequences of its activities. A former Jeppesen
employee informed The New Yorker magazine that, at an internal
corporate meeting, a senior Jeppesen official stated, "We do all of the
extraordinary rendition flights – you know, the torture flights. Let's
face it, some of these flights end up that way."

Shortly after the suit was filed, the government intervened and
inappropriately asserted the "state secrets privilege," claiming
further litigation would undermine national security interests, even
though much of the evidence needed to try the case was already
available to the public. To date, not a single torture victim has had
his day in court.

And now, unless the Supreme Court overturns the 9th Circuit, the "state secrets privilege" has become so sweeping as to not just close the doors of justice to torture victims, but to anyone in any case the U.S. government decides to assert that "state secrets" are involved. 

Bang, according to the 9th, you're out of luck, in that case.  Whomever you are. 

Including you.

To explain this absurd and intolerable injustice, we have to go back to the origin of the state secrets doctrine itself, in United States v. Reynolds in 1954.

What happened then?

The great Garry Wills wrote "Why The Government Can Legally Lie," reviewing two books on the events of U.S. v. Reynolds; it's now largely behind the New York Review Of Books paywall, but currently the entire article can and should be read here.

To quote his summary:

[…] On October 6, 1948, an Air Force plane exploded and fell out of the sky
in Georgia. It was doing experimental work on a guided missile system
called Banshee. Five of the eight crew members aboard and four of the
five civilians died.

The other four parachuted to safety. It came out in an interview
with the one surviving civilian that he and his non–Air Force fellows
had not been instructed in the use of escape hatches; and there had been
trouble with fires on other B-29s, so there seemed a prima facie case
of criminal neglect in the civilians' deaths. Three of them were
electrical engineers working on Banshee under contract with the Radio
Company of America (RCA). Their young widows decided to sue the Air
Force in a Pennsylvania district court. Their lawyer, Charles Biddle,
asked for information in the Air Force's keeping—the official accident
report and depositions from the three surviving crewmen. The Air Force
refused to surrender the documents, saying that the report was
classified and the depositions were "hearsay." If the plaintiffs wanted
such "hearsay," they could take their own depositions from the
survivors.

[…]

All Biddle knew at this point was that the Air Force showed a ferocious
determination not to give up the documents that were requested. Could
they really have state secrets in them? Was the accident caused by
secret Banshee activities? Did the Air Force depositions of survivors
have things the survivors would not say now to the plaintiffs' lawyers?
There was no way of knowing any of this, since the government blocked
all access to information.

[…]

The story seemed to be over, and it was—for roughly half a century (forty-seven years).

The Accident Report Revealed

The daughter of one of the RCA engineers who died in the crash, Judy
Palya Loether, who was only seven weeks old at the time of the
accident, grew up with a great curiosity about the father she never
knew. She was also a constant surfer of all things online. In 2000,
while looking around on her computer for information on what her father
did and how he died, she came across an entry, Accident-Report.com,
which promised to supply people with reports of government airplane
crashes. She did not know that there had been a Supreme Court case that
hinged on the production of this report, but she wanted to know if she
could learn more about her father's work.

[…]

The front tire bay, one of the escape routes, was blocked, and the
opening of the bomb bay, the main escape route, created a drag that
increased the plane's spin and threatened to stall it. The copilot
kicked his way through the front wheel bay, but the pilot's chute caught
on the plane and was disabled as he got out. Only two of the five
civilians were close enough to the front bay to follow the copilot out,
but one of them, Judy Loether's father, had died because his parachute
had not fully opened. This story was disgraceful to the Air Force, and
that, not national security, explains the hard determination of the
government not to let the story come out. The only protection of the
wronged women would have been a Supreme Court that would follow the path
of the excellent lower judgments and demand a look at the evidence in
camera. The Court failed that test.

[…]

Between 1977 and 2001 there were sixty-two cases where the government
withheld evidence by citing U.S. v. Reynolds, and in using the case some
courts not only reaffirmed the decision but broadened its application
by a "mosaic theory," saying that information not directly concerned
with national security may be pieced together with other pieces of the
"mosaic" to give a different picture. Only government experts, not lay
observers or even judges, are qualified to see such technical
connections. By this test, almost any information can be presumed to
have a subtle connection with national security. The government now had a
greater stake than ever in retaining the validity of U.S. v. Reynolds.

[…]

The case now was, finally, over.

But U.S. v. Reynolds is one part of a different mosaic—a larger
picture of executive usurpation that has sealed off the presidency
behind walls of secrecy, unaccountability, and extreme legal theories of
detention, torture, defiance of Congress, and spying on citizens. It is
as part of that larger scene that U.S. v. Reynolds remains important,
as a major early step in letting governments lie with court sanction.

U.S. v. Reynolds was wrongly decided.  It was based on a fraud, and established the basis for the government to simply claim "state secrets privilege" and dismiss a case. 

No matter that the essense of U.S. v. Reynolds was a lie by the United States Air Force, a lie invoking secrets when what was primarily at stake was avoiding governmental embarassment.

This "state secrets" doctrine was established to allow the government to lie, and not have to prove its case in court.

Now Mohamed et al. v. Jeppesen Dataplan, Inc. says that the government can prevent cases from even being heard.

As Judge Fisher's majority opinion states (I'm editing out the legal cites; you can find them in the linked decision):

[…] But “the state secrets doctrine does not represent a surrender of judicial control over access to the courts.” […] Rather, “to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation.”

The majority opinion's core argument is this:

[…] Third, and relevant here, even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because — privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses — litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets. 

And before long, we have arrived at:

We are precluded from explaining precisely which matters the privilege covers lest we jeopardize the secrets we are bound to protect.  […] Although we are necessarily precluded from explaining precisely why this case cannot be litigated without risking disclosure of state secrets, or the nature of the harm to national security that we are convinced would result from further litigation, we are able to offer a few observations.

First, we recognize that plaintiffs have proffered hundreds of pages of publicly available documents, many catalogued in the dissent’s Appendix, that they say corroborate some of their allegations concerning Jeppesen’s alleged participation in aspects of the extraordinary rendition program.

As the government has acknowledged, its claim of privilege does not extend to public documents. Accordingly, we do not hold that any of the documents plaintiffs have submitted are subject to the privilege; rather, we conclude that even assuming plaintiffs could establish their entire case solely through nonprivileged evidence — unlikely as that may be — any effort by Jeppesen to defend would unjustifiably risk disclosure of state secrets.

Any effort.  Even when you can establish [your] entire case solely through nonprivileged evidence, you can't sue if the government invokes "state secrets privilege."

Even the majority opinion by Judge Fisher is so uneasy about this ruling that it ordered the government to pay court costs, and concluded with an entire, quite extraordinary, section on:

V. OTHER REMEDIES
Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warrantedfor any of the plaintiffs.

The court offered four options. 

First, the executive branch can police itself.

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments 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. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in theUnited States during World War II.

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch.

[…]

Third, Congress also has the power to enact private bills.

[…]

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here.

The desperation with which the court seeks to hand off justice to some other entity is palpable.

Really, the Congress should enact a private bill to deliver justice each time it believes the Executive has gotten it wrong?  That's a solution?

From the dissent, written by Judge Hawkins, joined by Judges Schroeder, Canby, Thomas, and Paex: 

[…]  the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

[…]

The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law.

[…]

The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior 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.

[…]

When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government 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.

What should have been decided instead?

The majority’s analysis here is premature. This court should not determine that there is no feasible way to litigate Jeppesen’s liability without disclosing state secrets; such a determination is the district court’s to make once a responsive pleading has been filed, or discovery requests made. We should remand for the government to assert the privilege with respect to secret evidence, and for the district court to determine what evidence is privileged and whether any such evidence is indispensable either to Plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen
. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

As for those "other remedies" the majority so desperately clung to:

Conclusion

The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief.

Suggesting, for example, that the Executive could “honor the fundamental principles of justice” by determining “whether plaintiffs’ claims have merit,” disregards the concept of checks and balances. 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. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered, elevates the impractical to the point of absurdity.

Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” leaves to the legislative branch claims which the federal courts are better equipped to handle.

Why, indeed, have courts at all if the executive can be trusted to police itself?

Judge Hawkins of the original three-judge panel got it right.

And what might the executive do under cover of complete legal secrecy?  Perhaps this:

[…] Plaintiff Binyam Mohamed, a 28-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in Pakistan on immigration charges. Mohamed was allegedly flown to Morocco under conditions similar to those described above, where he claims he was transferred to the custody of Moroccan security agents. These Moroccan authorities allegedly subjected Mohamed to “severe physical and psychological torture,” including routinely beating him and breaking his bones. He says they cut him with a scalpel all over his body, including on his penis, and poured “hot stinging liquid” into the open wounds. He was blindfolded and handcuffed while being made “to listen to extremely loud music day and night.”

After 18 months in Moroccan custody, Mohamed was allegedly transferred back to American custody and flown to Afghanistan. He claims he was detained there in a CIA “dark prison” where he was kept in “near permanent darkness” and subjected to loud noise, such as the recorded screams of women and children, 24 hours a day. Mohamed was fed sparingly and irregularly and in four months he lost between 40 and 60 pounds. Eventually, Mohamed was transferred to the U.S. military prison at Guantanamo Bay, Cuba, where he remained for nearly five years. He was released and returned to the United Kingdom during the pendency of this appeal.

As Ben Wizer, who argued for the plaintiffs, wrote:

This is a sad day not only for the torture victims whose attempt to seek
justice has been extinguished, but for all Americans who care about the
rule of law and our nation's reputation in the world. To date, not a
single victim of the Bush administration's torture program has had his
day in court. If today's decision is allowed to stand, the United States
will have closed its courtroom doors to torture victims while providing
complete immunity to their torturers. The torture architects and their
enablers may have escaped the judgment of this court, but they will not
escape the judgment of history.

Neither will we, as citizens, who stood for this.

Some additional links. Emptywheel. Greenwald. Brad Friedman.

UPDATE, 9/11/10, 6:27 p.m.: Adam Serwer wrote a good post yesterday:

After Wednesday's ruling,
it should be clear that we're past the point of "when the president
does it, it's not illegal." The law of the land now is that when anyone
in our professional intelligence services crosses the line in the name
of national security, it's not illegal, or it's illegal in name only. To
be able break the law with no credible threat of sanction is about the
same as having no law at all.

And suggests that it's up to Congress to fix this:

[…] Basically what has to happen is the executive has to make Congress angry
enough to rein in the executive branch, because at this point Congress
can shut down the party whenever it wants. Between skittish Democrats
and Republicans who think the only possible abuses of power come from
the expansion of the welfare state, it's not likely to happen soon. But
it's the only way I see things changing.

What do you think?

UPDATE, 9/12/10, 2:02 a.m.:

Belatedly, I see that Andrew Sullivan has written powerfully on Jeppesen: 

[…] Marc Ambinder reports
on the dictatorial powers held by many in government and upheld
yesterday by a judiciary that gives unaccountable power – even the power
to torture and kill – a drop-shadow, not a check. Marc has been
following this state secrets issue for a long time, sensing, before some
others did, that it was the key to Obama's protection of Bush's
torturers and his objective disdain for the tortured.

[…]

And Obama? I see no daylight between him and Clinton any more on
this. As Glenn notes, Obama as executive quickly co-opted the kind of
blanket secrecy and protection of the national security apparatus from
the rule of law that plagued us in the Bush-Cheney administration. Yes,
torture ended. That matters a huge amount. He will always deserve credit
for that. Of course, I have to trust him on this, since there is
precious little way for someone outside the government to test this or
know this for sure.

But Obama's insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny
is a sign both of how cold-blooded he can be, but more, I think, of how
powerful the security state now is, how it can protect itself, how it
exists independently of any real accountability to anyone, how even the
metrics of judging it are beyond the citizen's reach or understanding.

I
tried valiantly not to believe this of Holder and Obama for months; I
tried to see their legitimate concerns about exposing a war machine when
it is still at war; I understand the need for some extraordinary
renditions; and the necessity for executive power in emergencies to act
swiftly, as the Founders intended. Yes war requires some secrecy. But
Obama has gone much further than this now. The cloak of secrecy he is
invoking is not protecting national security but protecting war crimes.
And this is now inescapably his cloak. He is therefore a clear
and knowing accessory to war crimes, and should at some point face
prosecution as well, if the Geneva Conventions mean anything any more.
This won't happen in my lifetime, barring a miracle. Because Obama was a
test case. If an outsider like him, if a constitutional scholar like
him, at a pivotal moment for accountability like the last two years,
cannot hold American torturers to account, there is simply no
accountability for American torture. When the CIA actually rehires as a
contractor someone who held a power-drill against the skull of a
prisoner, you know that change from within this system is impossible.
The system is too powerful. It protects itself. It makes a mockery of
the rule of law. It doesn't only allow torture; it rewards it. 

[…]

Have I been radicalized by this? You betcha. Because this is so plainly
not a nation under the rule of law anymore. And there are very few
political issues more important than that. [….]

As I like to quantify: Read The Rest Scale: 3.5 out of 5.

by guest blogger Gary Farber, not Eric Martin.