In today’s appeal of Mohamed et al v Jeppesen brought by the American Civil Liberties Union before the Ninth U.S. Court of Appeals, the Obama Justice Department decided to stand behind the Bush administration’s invocation of the state secrets privilege, “with no ambiguity at all,” report Jake Tapper and Ariane de Vogue at ABC News.
The case involves five alleged victims of the extraordinary renditions program during the Bush years. The victims, one of whom (Mohamed) is a current Guantanamo detainee, sued Jeppesen Dataplan (a subsidiary of Boeing) for allegedly flying them to secret CIA camps and other countries where the company knew the detainees would be tortured. The case was thrown out a year ago by a judge who agreed with the Bush administration’s invocation of the state secrets privilege.
ACLU Executive Director Patrick Romero isn’t happy:
[c]andidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
The Obama Justice Department’s defense of the state secrets privilege is not particularly surprising to Marc Ambinder. All of the details regarding how Jeppesen DataPlan helped the government plan the logistics of the extraordinary renditions program are not yet known, and it wouldn’t be a smart move for the Obama administration to come in and change legal strategies without a thorough review of the national security implications, argues Marc Ambinder:
The CIA used Jeppesen’s unit to coordinate the complex travel arrangements that extraordinary rendition implies; which airports would be available when; how to schedule pilots; fuel requirements, etc. Jeppesen would therefore have access to a lot of data that’s not in the public domain, including how many renditions there were, which countries were used as transit points — CIA Black Sites — and which countries were rendition partners, whether they tortured or not. Jeppesen ostensibly has a lot of information about countries to whom the U.S. legally renders suspects. We know a lot about this stuff, but we don’t know everything.
This begs the question: why didn’t the Justice Department seek an extension so that they could conduct a thorough review of the implications? And more importantly, why is any of this reason to use the state secrets privilege to dismiss the case? Why not just let the case continue and use the state secrets privilege selectively to protect those documents that need to be protected.
UPDATE: Eric Holder has ordered a review of all claims of the state secrets privilege. “It’s vital that we protect information that if released could jeopardize national security, but 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,” said Justice Department spokesman Matt Miller.
