A recent ruling by a three judge panel of the U.S. 9th Circuit Court of Appeals allowing the ACLU’s lawsuit against “extraordinary rendition” to go forward was reckless and lawless. In light of the ongoing conflict between Speaker Pelosi and the Central Intelligence Agency (which potentially undermines one of the key agencies engaged in the War on Terror), the price for aiding the ACLU may well be the loss of American lives.
This case (Mohamed, et al., v. Jeppesen Dataplan, et al) started in 2007 when the ACLU and five non-citizens filed suit claiming that the five men were unlawfully captured and tortured as part of a “clandestine” CIA program for interrogating suspected terrorists. However, rather than attack the program directly, the ACLU attempted an end-around by filing the suit against Jeppesen Dataplan, Inc, a travel service subsidiary of the Boeing Corporation.
This case is yet another example of the limitations that courts have when it comes to assessing policy matters, particularly those associated with national security. Judges have no particular skills in evaluating either the benefits or the consequences of their rulings on national security and, as lifetime appointees, they are well insulated from the consequences of their rulings.
Notwithstanding the legal objections to this case on the merits, it should also be unsettling that the panel aided the ACLU’s clever “back door” attack against the CIA.
In addition to allegations that they were tortured, the ACLU claims that Jeppesen Dataplan is a CIA contractor. And although they don’t claim that Jeppesen carried out the interrogations or the associated torture, the litigants argue that Jeppesen knew the five men were being transported for interrogation and are thus complicit in their mistreatment.
When this case came before U.S. District Judge James Ware, he dismissed it once the implications for national security became clear. The Justice Department had invoked the “state secrets” doctrine and former CIA Director Michael V. Hayden's warned that if this case were to go forward it could cause "exceptionally grave" danger to U.S. national security.
It is well settled that when the “subject matter of a lawsuit is a matter of state secret,” the suit must be dismissed without regard to the question of evidence. And as the Supreme Court has recognized for over a 100 years, any lawsuit predicated on “alleged espionage agreements” also require a per se or automatic dismissal. This case involved both elements. But in overturning Judge Ware, the Ninth Circuit decision flies head long against these precedents.
Consider the very question of whether Data Jeppesen is a CIA contractor is a “state secret.” And to what degree any foreign countries cooperate with the CIA is also a “state secret”.
This decision was particularly distressing as it disregarded the assertion of the “State Secrets” privilege by both the Bush and Obama Justice Departments.
Furthermore, this decision is sharply at odds with the national-security reality that Americans face: We are in a worldwide war with terrorists who seek to destroy our country and our way of life. They have attacked us at sea and on land, at home and abroad. And recent disclosures by the Obama Administration about a thwarted attack on Los Angeles a few years ago reveal that our enemies haven’t stopped their efforts to harm us.
Make no mistake the precedent of allowing these alleged victims of the United States government's "extraordinary rendition" program to misuse the Federal Court system even though the CIA is not a party to the lawsuit is lawless as well as dangerous.
Publicly exposing vital secrets will aid terrorists and others who threaten our nation’s security. Unfortunately, this ruling, by denying the seriousness of the threat, it will only make the effort to save American lives more difficult.