Wednesday, October 28, 2009
A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim. Six judges, including Judge Bybee, did not participate.
The plaintiff in the case filed his complaint against the private company Jeppesen Dataplan for its role in his extraordinary rendition by the CIA. The Bush administration, and then the Obama administration, intervened and moved to dismiss the entire case on the complaint, claiming that the very subject matter of the case was a state secret. A three-judge panel of the Ninth Circuit rejected the claim, and the Obama administration sought review by the full Ninth Circuit. (I interviewed plaintiff's attorney Ben Wizner of the ACLU here. I posted on the administration's changes to the state secrets privilege here.)
The panel decision put the Ninth Circuit at odds with an earlier Fourth Circuit ruling on state secrets in an extraordinary rendition case against the government. In that case, El-Masri v. United States, the Fourth Circuit endorsed a sweeping state secrets privilege, and for the first time rooted the privilege in the Constitution (Article II and separation of powers principles). (Earlier state secrets cases went so far as to dismiss on the pleadings, but the courts have treated state secrets merely as an evidentiary privilege, not a constitutional doctrine.) The Ninth Circuit order raises the possibility that the full Ninth Circuit will also endorse this sweeping claim.