Five men who claim to have been seized by United States personnel and then flown to CIA “black sites” are suing a Boeing subsidiary for its participation in these actions – “extraordinary renditions” in the parlance of the war on terror. The United States intervened in the case, claiming that it must be thrown out of court because allowing it to proceed violates the state secrets doctrine. The federal district court judge agreed with the government and the plaintiffs appealed, hoping for a different result in the Ninth Circuit court of appeals.
As important, with President Obama’s emphasis on transparency and accountability, the plaintiffs were anticipating a change in the government’s position. But when Doug Letter, a seasoned career DOJ appellate lawyer, stood up before the Ninth Circuit panel yesterday, he announced that the government’s position remained the same. The New York Times story is here.
Many observers are convinced that the Bush Administration misused the state secrets doctrine to prevent judicial inquiry into matters whose examination would pose little or no threat to national security. As Senator Kennedy has said, “If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive. The state secrets privilege is important, but there’s a risk it will be overused and abused.” If that is what the Bush Administration has been doing in any particular case, the Obama Administration does indeed need to change. From this perspective, the decision to stick to the old position in Mohamed v. Jeppesen Dataplan is unsettling.
That said, it is much too early to draw any large conclusions from this single incident. The Justice Department is an inherently conservative organization – not in the sense of conservative versus liberal, but in the sense of being slow to make significant changes of position rapidly. That characteristic has many benefits in terms of following the rule of law and treating like cases alike. As frustrating as it is for those who have waited eight years for better management of our Justice Department, the Department does need the benefit of additional time to reconsider its approach to state secrets. Although Eric Holder has been confirmed by the Senate, the heads of the National Security Division, the Office of Legal Counsel, the Solicitor General and the Deputy Attorney General are all awaiting confirmation – until these key DOJ leaders are in place, the full scale deliberations and review that ought to precede sound and sober decision making cannot take place. They ought to be expeditious, however. The use of state secrets doctrine to block law suits has become a major litigating tactic and Senator Kennedy’s worry that it can be misused is justified. The Ninth Circuit action may prompt the reintroduction of Senator Kennedy’s State Secrets Protection Act, which provides judges additional tools to scrutinize and control excessive uses of the doctrine.