Tuesday, April 28, 2009
A three-judge panel of the Ninth Circuit today rejected the Obama administration's claim that the state secrets privilege required dismissal of the plaintiffs' entire lawsuit at the pleading stage. The plaintiffs in the case, Mohamed v. Jeppesen Dataplan, Inc., sued a private corporation for cooperating with the government in extraordinary rendition and torture; the government intervened to assert the state secrets privilege as a basis for complete dismissal. In an early test of the Obama administration's positions on government transparency and the state secrets privilege, the Obama administration re-asserted the same position advanced by the Bush administration: The state secrets privilege required complete dismissal of the suit.
The Ninth Circuit flatly rejected this claim, in an opinion teeming with separation of powers considerations.
The Ninth Circuit rejected each of the administration's theories. As to the Totten version of the privilege (from Totten v. United States), the court held thatcomplete dismissal requires a secret agreement or contract between the plaintiff and the government such that the very fact of the lawsuit would reveal a government secret--a reading that limits Tottento its facts. Here, there was no such secret agreement or contract between the plaintiffs and the government. Instead, the agreement was between the defendant and the government (as intervenor, not a party). The court thus treated the contract not as the very object of the suit (which might trigger the Totten privilege) but rather merely as a piece of evidence in the suit. This, according to the court, is not enough to trigger the Totten privilege; at most, it would trigger the Reynolds privilege.
As to the Reynolds privilege (from United States v. Reynolds), the court rejected the government's claim that the privilege required the dismissal of the entire case. Instead, the Reynoldsprivilege is an evidentiary privilege--i.e., it might protect certain secret evidence, but it does not wholesale protect information. And it cannot prevent a litigant from trying to persuade a jury of facts, even if it might under certain circumstances protect secret evidence.
Finally, the court rejected the government's FOIA claim. The government here tried to equate "classified" material (under FOIA) with "secret" material (under the privilege). The court flatly rejected this approach, recognizing the different purposes of FOIA and the state secrets privilege, and the perverse incentive to over-classify that attends this approach.
The government's claims in the case--under the Bush administration, then under the Obama administration--were bold and sought an expanded privilege. Each of the three arguments would have enlarged the privilege beyond all previous scope and would have given the President much greater power to control information and to direct the outcome of cases that even merely touch upon issues of national security. The Obama administration's re-assertion of the Bush administration's positions is squarely at odds with its claims of increased transparency and more principled use of the state secrets privilege. But it seems perfectly consistent with its claims in Jewel v. NSA, the Northern District of California case challenging the NSA's "dragnet surveillance."
Given the administration's motion and aggressive position in Jewel, an appeal in Jeppesen seems likely.