The U.S. Ninth Circuit Court of Appeals has narrowly sided with the CIA in a high-profile case on the agency's controversial program of extraordinary renditions. The program, begun by the Bush administration and continued under Obama, has seen the CIA apprehend suspected terrorists and then, rather then turning them in to local enforcement or sending them to the U.S., ship them to a third country to be interrogated under torture. In this case, the American Civil Liberties Union, representing five such detainees, sued not the CIA but Jeppesen Dataplan Inc, a Boeing subsidiary they say illegaly transmitted detainees on behalf of the CIA program. Here are the details, the implications, and what people have to say about the case.
- 'State Secrets' Trumped 'Liberty, Justice, Transparency, Accountability' The New York Times' Charlie Savage explains that the 6-to-5 majority didn't approve of the program itself, but rather said that the suit could not go forward because "such a lawsuit might expose secret government information. ... The government’s need to protect state secrets trumped the plaintiffs’ need to have a day in court." The court's majority ruling declares, "This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that 'even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.' United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court."
- Gov't Abusing State Secrets Privilege The New York Times editorial fumes, "The decision diminishes any hope that this odious practice will finally receive the legal label it deserves: a violation of international law. ... The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be 'gross violations of the norms of international law.'"
- Big Victory for Government Secrecy NYT's Charlie Savage writes, "The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets."
- 'Really Bad News' for Rule of Law Liberal national security blogger Marcy Wheeler calls the ruling "really bad news." She writes, "Basically, the government can kidnap you and send you to be tortured–as they did with Binyam Mohamed–yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can."
- 'Good News' for Fighting Terrorism Conservative military blogger Jim Hanson writes, "This is good news for our ability to deal with the evil bastards who kill innocents. ... We have enemies hiding all over the world. It is a necessity for us to be able to go scarf them up and then take them somewhere for some serious questioning, which we no longer do. I give the Obama team credit for continuing to uphold the right of the Executive Branch to do what is required to keep all of us safe. That is not always a pleasant process and it is one that belongs in the shadows on the dark side not being adjudicated by bleeding heart lawyers anxious to splatter us with whatever shite they can dredge up or make up."
- Another Blow for Obama's Campaign Promise of Transparency Even conservative blogger Allahpundit sees the administration over-stepping. "If you were a liberal voter circa 2008, you should have had two reasons to never worry about this scenario: Either Obama would discontinue rendition or else a left-wing court would make him suffer the consequences. Surprise. ... If Obama’s against enhanced interrogation by the CIA, why do we still have a rendition policy? If you’re truly worried about detainees being mistreated, cancel the program and figure out a way to interrogate them more 'vigorously' here without violating their rights."
- Obama Mimics Bush--So Where's the Outrage? Salon's Glenn Greenwald balks, "The distorted, radical use of the state secret privilege -- as a broad-based immunity weapon for compelling the dismissal of entire cases alleging Executive lawbreaking, rather than a narrow discovery tool for suppressing the use of specific classified documents -- is exactly what the Bush administration did to such extreme controversy. ... Suffice to say -- with great understatement -- Obama's doing this doesn't trigger the same level of outrage and objection as when Bush did it, at least not in most circles."