Judges: Application of Executive State Secret Privilege Limited

by Suraj Sazawal, 4/30/2009

Nonprofit Organizations and Counterterrorism Measures

On April 28, 2009, the U.S. Court of Appeals for the Ninth Circuit rejected the Obama administration's claim that a lawsuit involving extraordinary rendition must be dismissed for national security reasons. The three judge panel's unanimous decision said the federal government could not assert the "State Secret" privilege to throw out an entire civil case prior to the discovery phase. The 26 page ruling said that evidence the executive branch claims to be a state secret must be evaluated by the court on an "item-by-item basis." The American Civil Liberties Union (ACLU) and other advocacy groups are hopeful that this ruling sets a precedent for surveillance lawsuits and charities designated as supporters of terrorism based on secret evidence held by the Treasury Department.

The judges remanded the case, Mohamed v. Jeppesen Dataplan, back to San Jose U.S. District Judge James Ware for further proceedings. Ware had dismissed the lawsuit in 2008, ruling that litigation over the controversial rendition program could prompt disclosure of intelligence or sensitive information. The "State Secret" Privilege has been used by the government as justification to dismiss lawsuits involving the designation of charities as supporters of terrorist activity based on secret evidence, warrantless wiretapping of U.S. citizens, and torture.

In response to the Executive branch's broad claims regarding use of the "State Secret" privilege, Judge Michael Daly Hawkins wrote for the court, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law".

The ruling is considered a victory for civil liberty advocates. Staff attorney for the ACLU National Security Project said in the ACLU's press release, "Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

Responding to the court's ruling, Charles Miller, a spokesman for the Justice Department, said, "The United States is reviewing the court's decision."

Both houses of Congress are considering bills that would limit the application of the "State Secret" privilege. While the two bills are similar, they do contain critical differences. The Senate bill directs courts to weigh executive branch state secrets claims over the claims of the plaintiff. The House bill, however, takes an approach aimed at retroactively narrowing the application of the privilege. The House legislation seeks to reopen cases, as far back as 2002, in which the privilege was claimed. The Senate version would apply only to current and future cases. Neither has made it to the floor for a vote.

back to Blog