Monday, May 23, 2011
The Supreme Court today unanimously ruled in General Dynamics Corp. v. United States that the state secrets privilege protected certain information from disclosure in a suit against the government by a contractor alleging that the government possessed "superior knowledge" as to the subject of the contract. The Court ruled that the when a superior knowledge defense would inevitably reveal state secrets, neither party can obtain judicial relief, and the proper remedy is to leave the parties where they were on the day they filed suit. We previously posted on the case here.
This long-running dispute involved the ill-fated A-12, a planned stealth aircraft that General Dynamics contracted to build for the Navy. After development delays, the Navy cancelled the program, terminated the contract for default, and demanded $1.35 billion dollars in progress payments for work the government never accepted. General Dynamics sued in the Court of Federal Claims to challenge the default decision, arguing that the government possessed, but failed to share, "superior knowledge" relating to the aircraft's development. (The superior knowledge was the stealth technology that the government used for earlier aircraft but that General Dynamics did not have.) The government claimed that litigation of General Dynamics's superior knowledge claim would inevitably lead to the disclosure of state secrets.
The Court agreed and ruled that "neither party can obtain judicial relief." Op. at 8. Thus General Dynamics cannot use protected evidence to prove lack of default; and the government cannot use protected evidence to prove default. Instead, the proper remedy is to leave the parties where they were when General Dynamics filed suit. The Court remanded to the Federal Circuit to determine whether and how the case can move forward without the protected evidence.
The unanimous ruling, written by Justice Scalia, clarifies the state secrets privilege in at least this context, secret government contracts, and may shed light on its application beyond this context.
The ruling is narrow by its own terms. Justice Scalia seems to go to lengths to limit the ruling to government contract disputes involving secret evidence, even to that sub-category involving superior knowledge claims. He's clear that this case falls within that narrow line of authority applying the state secrets privilege to secret government contracts--Totten v. United States and Tenet v. Doe--and not a broader line applying the privilege more generally (as in United States v. Reynolds) or to a principle that the privilege has no application when the information is necessary to a criminal defense. Underscoring the narrowness of the ruling, he concludes with this:
In Reynolds, we warned that the state-secrets evidentiary privilege "is not to be lightly invoked." 345 U.S., at 7. Courts should be even more hesitant to declare a Government contract unenforceable because of state secrets. It is the option of last resort, available in a very narrow set of circumstances. Our decision today clarifies the consequences of its use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment.
Op. at 13-14.
But even with this limiting language, the ruling may shed some light on the Court's view of the privilege outside of the narrow facts of this case. For example, the Court sharply distinguishes between the Totten version of the privilege and the Reynolds version of the privilege--a distinction that has become increasingly murky in the lower courts' rulings and in the government's positions in cases involving, e.g., extraordinary rendition and torture, and that has resulted in an expanded state secrets privilege. Today's ruling maintains and underscores the traditional distinction between the two versions of the privilege, at least in secret government contracts. This could lend fodder to those who argue for the traditional distinction between the two privileges (and thus a relatively narrower privilege, at least in relation to the government's position in recent cases) outside secret government contracts.
Another example: The Court emphasizes that the privilege, whether the Totten version or the Reynolds version, is merely an evidentiary privilege--not a constitutional separation-of-powers principle--and that a case can (at least potentially) move forward even absent privileged evidence. This, too, could lend fodder to those who argue for a more limited privilege--at least more limited than the expansive, separation-of-powers-mandated version that has appeared in recent litigation.
On the other hand, the opinion also recognizes the need for a state secrets privilege. Justice Scalia at one point recounts the secret information that mistakenly came out in this case, prompting the Navy to assert the privilege in the first place.
Given the explicitly narrow ruling, it's not clear how much, if any, of this will guide the Court outside this specific context.
The narrowness of today's ruling allows the Court to dodge the harder questions about the state secrets privilege--questions that it also dodged when it recently declined to hear an appeal of the sharply divided Ninth Circuit's en banc decision affirming the dismissal of Mohamed's claim against Jeppesen for its role in his extraordinary rendition and torture under the state secrets privilege. But the Court at the same time gave us a glimpse of its answers, at least in the context of government contracting: The Totten privilege and the Reynolds privilege are different; they are both evidentiary privileges (and not constitutional separation-of-powers privileges); and a case might move forward even after a successful invocation of the privilege. Whether these answers also apply in cases outside government contracting: We'll have to wait.
May 23, 2011 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)
Saturday, March 12, 2011
The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia.
In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan. While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.
Yet portions of the memos are redacted. Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text. In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.
Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.
Friday, February 4, 2011
Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."
Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:
5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.
The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”
North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:
The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.
This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.
The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.
ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.
February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)
Wednesday, January 19, 2011
The Supreme Court yesterday heard oral argument in General Dynamics Corp. v. United States and The Boeing Company v. United States, the consolidated cases arising out of a government contract gone bad and dealing with just a little corner of the state secrets privilege. We posted on the case here, when the Court agreed to hear it.
Oral argument yesterday did nothing to suggest that the Court intends to say anything about the privilege outside the singular circumstance that gave rise to this case.
And those circumstances are singular. The case arose out of a contract for production of the A-12 Avenger, a planned stealth aircraft. After years of half-starts and failed efforts--the reasons for which are disputed and probably don't matter much here--the Navy finally cancelled the program and terminated the contract for default. (Under federal contracting rules, a default termination means that the contractors have to pay the government back some of the funds already issued and used under the contract, here $1.35 billion.) The contractors sued in the Court of Federal Claims (under the Contract Disputes Act) asking that the court change the termination for default to a termination for convenience. (This would save the contractors from paying back the $1.35 billion and possibly entitle them to an additional $1.2 billion for other costs associated with the termination.) The contractors based their claim on the argument that the government had "superior knowledge"--here, knowledge of stealth technology that would have helped the contractors produce the A-12 (or would have let the contractors know that the plane was essentially unproduceable). The government asserted the state secrets privilege, arguing that the contractors couldn't litigate their "superior knowledge" claim without privileged evidence and that the case should be dismissed. The lower courts ruled in favor of the government.
The contractors argued to the Supreme Court that the government can't both bring a claim (the termination for default) and assert the state secrets privilege. Such a rule would stack the deck in favor of the government every time. But this wasn't just a due process and fairness argument; they relied on language in United States v. Reynolds (see pages 34 -36 of General Dynamics's merits brief):
Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented.
Reynolds, 345 U.S. at 12 (emphasis added). The contractors argued that this language means that the government can't both be a moving party and assert the state secrets privilege in civil litigation.
The oral argument turned mostly on this very narrow issue: Was the government the moving party here? And this question, in turn, turned on what was the status quo ante--the parties' situations before the courts got involved. Was the status quo ante no default (in which case the government might more properly be seen as the moving party--"moving" for a termination for default)? Or was the status quo ante default (in which case the contractors might more properly be seen as the moving party--moving to quash the termination for default)? (Remember that the government terminated the contract for default before the courts got involved. The default question went to the Court of Federal Claims under de novo review, however.)
The argument didn't help answer these questions much. The parties' arguments were predictable and didn't seem to give the Court anything to work with to help it sort the questions out. This wasn't for the Court's lack of trying: the Justices seemed to ask around these questions in any way they could. Even when Justice Ginsburg asked Carter Phillips on rebuttal whether there was a "middle way," Phillips only restated his position: go back to the status quo ante, which means before the termination for default. (Of course, the government argued that the status quo ante was termination for default. The arguments only restated the questions.) (Justice Scalia called this the "go away" principle--assume a world where the courts weren't involved, or went away.)
But there were some other concerns that came out. For example, Justice Breyer pressed the contractors on why their proposed rule wouldn't "not just throw a monkey wrench into the gears of government contracting . . . but throw the whole monkey." Justice Breyer was concerned that sophisticated government contractors like these should have foreseen these problems, including the government's state secrets assertion, and should have contracted around them (or avoided the contract altogether). Adopting their rule would allow contractors terminated for default always to win simply by asserting a "superior knowledge" claim and forcing the government to raise the state secrets privilege (because under their rule this would change the termination for default to a termination for convenience).
But there was a similar concern on the other side. Thus Justice Kagan asked Acting Solicitor General Neal Katyal whether the government could also assert the state secrets privilege in proving its default claim--a claim in which the government looks more like the movant--and not only on its defense to the contractors' "superior knowledge" claim. Answer: Yes. This prompted Justice Kagan to ask for clarification, "because that really does sound like a tails you win, heads you win." (Justice Scalia similarly observed: "and you are never the moving party.") Clarification was not satisfying: General Katyal simply argued that the contractors should have contracted around the problem--playing on Justice Breyer's concern.
The extreme results illustrated in these exchanges may have prompted Justice Ginsburg to ask for a "middle way" on rebuttal. But Phillips's answer only got us back where we started: What was the status quo ante?
Whatever happens in the case, the ruling is likely to be quite narrow--on the application of the state secrets privilege in a civil case where both sides look a little like a moving party.
Tuesday, December 7, 2010
Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.
The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."
Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.
Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.
Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.
The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.
Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.
December 7, 2010 in Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, Opinion Analysis, Political Question Doctrine, Recent Cases, Separation of Powers, Standing, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, October 17, 2010
Charles Fried, former Solictor General and ConLawProf at Harvard Law
and his son, Gregory Fried, philosophy department, Suffolk University, have co-authored Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror. The book promises both a legal and philosophical discussion of torture and survelliance. From the publisher's description:
Can torture ever be justified? When is eavesdropping acceptable? Should a kidnapper be waterboarded to reveal where his victim has been hidden? Ever since 9/11 there has been an intense debate about the government’s application of torture and the pervasive use of eavesdropping and data mining in order to thwart acts of terrorism. To create this seminal statement on torture and surveillance, Charles Fried and Gregory Fried have measured current controversies against the philosophies of Aristotle, Locke, Kant, and Machiavelli, and against the historic decisions, large and small, of Jefferson, Lincoln, and Pope Sixtus V, among many others. Because It Is Wrong not only discusses the behavior and justifications of Bush government officials but also examines more broadly what should be done when high officials have broken moral and legal norms in an attempt to protect us.
Wednesday, September 29, 2010
The Supreme Court yesterday agreed to hear a government contractor's case against the Defense Department involving the Department's invocation of the state secrets privilege. But the case doesn't involve anything nearly so dramatic as what we've seen recently come out of the Ninth Circuit in Mohamed v. Jeppesen (ordering the dismissal of a private lawsuit by an alleged victim of extraordinary rendition and torture based upon the government's intervention and assertion of the state secrets privilege). Instead, this case is a more ordinary application of the privilege--an application more consistent with its common law, evidentiary roots.
But that doesn't make the case any less important. And the Court's treatment of the privilege in this more ordinary context may give us important clues as to how the Court might treat the more dramatic cases.
This case, General Dynamics Corp. v. U.S. (and a consolidated companion, The Boeing Co. v. U.S.) is a nearly 20-year-old dispute over the plaintiffs' ill-fated contract with the Navy to develop the A-12 Avenger, a carrier-based stealth aircraft. The plaintiffs-appellants claim that the Navy declined to share its stealth technology with the contractors in the design process, instead requiring the contractors to reinvent this wheel. This, among many other problems, led to substantial delays in the development of the aircraft. Finally the Navy terminated the contract for default.
Under federal contracting regulations, a termination for default means that the contractor gets no more payments under the contract and may have to reimburse the government for some payments already issued. A termination for default can also mean that the contractor is debarred from public contracting, or is prejudiced in the award of new contracts. (The government could have alternatively terminated for convenience. When it does this, the contractor still gets reimbursement for costs reasonably incurred.)
The contractors sued, arguing that the government failed to meet its burden in terminating for default because the government had "superior knowledge" (i.e., the stealth technology), but refused to share it with the contractors. The government asserted the state secrets privilege, arguing that it couldn't litigate the "superior knowledge" claim because the stealth technology is a state secret. The lower courts ruled in favor of the government.
The case now goes before the Court on the state secrets issue and a couple other issues related to the standard that applies to termination for default.
The contractors argue that the government cannot at once press its default claim (on which it bears the burden) but also deny the contractors information on their "superior knowledge" defense. The contractors point to language in United States v. Reynolds that supports this common-sensical argument--you can't fairly prosecute when you also deny the accused evidence necessary for the defense. And given the amount of money at stake and the possibly punitive nature of termination for default, this is like a prosecution.
The government argues that this principle doesn't apply here: after all, the government is the defendant; it isn't prosecuting anything. Moreover, it's the plaintiffs who bear the burden on the "superior knowledge" defense.
The case thus involves an evidentiary state secrets privilege in the old-fashioned sense--a privilege that applies (or not) to individual pieces of evidence, and not to entire cases, even purely private cases, as we've seen in the lower courts more recently. But the Court could nevertheless use the case to signal its direction with the cases, like Mohamed, that involve the government's far more sweeping assertions of the privilege, and therefore it's one to watch.
Sunday, September 26, 2010
The government on Friday filed its legal arguments in support of its motion to dismiss Nasser Al-Aulaqi's case against it for allegedly designating his son Anwar Al-Aulaqi, a U.S. citizen living in Yemen and allegedly supporting al Qaeda in the Arabian Peninsula, for targeted killing. Thanks to Rachel Mabbott for the heads-up.
The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place. Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing. The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.
Next, the government argues that the case is barred by the political question doctrine. The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles. In short, the courts are not well suited to evaluate this kind of claim. Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.
Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal. Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion. The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here). While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight. The government gives a glimpse of the kind of information it seeks to protect here:
Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose? If there is a threat, how imminent is it, and how continuing is it? How many innocent people are threatened by the danger plaintiff's son might pose? In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely? In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process? It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.
. . .
Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force. Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination. It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.
Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri.
September 26, 2010 in Executive Authority, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 8, 2010
A sharply divided (6-5) Ninth Circuit today ruled in Mohamed v. Jeppesen Dataplan that the state secrets privilege compelled the dismissal of Binyam Mohamed's claims against Jeppesen Dataplan, Inc., for its role in his extraordinary rendition and torture. In so ruling, the court upheld a district court decision dismissing the case. We covered the Ninth Circuit panel's ruling (reversing the district court) here; we more recently covered the privilege in a different case, Al-Haramain Islamic Foundation v. Obama, here.
The case attracted attention because the government (not a party to the case) moved to intervene and then to dismiss on the pleadings based upon a sweeping state secrets claim. This aggressive assertion of the privilege was asserted first by the Bush Justice Department and then again by the Obama Justice Department.
There are several notable aspects of today's ruling:
- The Ninth Circuit read Totten broadly. Totten v. United States involved a Civil War spy's claim against the federal government for payment under his spy contract. The Court ruled in that case that the very subject matter of the suit was a state secret, and therefore the case could not go forward. The so-called Totten bar was the first version what later became the state secrets privilege. It is an absolute bar to litigation in matters in which the very subject matter is a state secret. Mohamed argued that the Totten bar should be (and is) limited to its facts--a secret contract with the government. The Ninth Circuit rejected that interpretation and ruled that the Totten bar applies anytime the very subject matter of a case is a state secret.
- But it didn't dismiss Mohamed based on Totten. Despite the court's broad reading of the Totten bar, the court did not dismiss the case based upon it. (One judge, Judge Bea, would have dismissed based on Totten.) While the court stretched the Totten bar (in dicta), it also recognized limitations, possibly including this case.
- Instead it dismissed the entire case, on the pleadings, based upon Reynolds. United States v. Reynolds involved claims against the government arising out of a "secret" government program. (It turned out later that the government's position in the case had nothing to do with the secrecy of the program, but rather its desire to avoid embarrassment.) Reynolds established an evidentiary privilege that allows the government to keep certain secret information out of litigation. Like other evidentiary privileges, the so-called Reynolds privilege applies (or not) to evidence as it's propounded in a case--and not to dismiss the entire case on the pleadings, before there's even a chance for anyone to propound evidence. The Ninth Circuit ruled here that the Reynolds privilege can be used to dismiss a case on the pleadings--when litigating the case would raise an "unjustifiable risk of divulging state secrets"--and not just to object to particular pieces of evidence. The court also validated the practice of the government intervening in an otherwise private dispute to assert the privilege and then move to dismiss. This application of Reynolds pushes the outer edges of the courts' treatment of the privilege.
- The court did not ground the privilege in the Constitution. Even though the court stretched the privilege to its outer edges, it stopped short of grounding the privilege in the Constitution (as the Fourth Circuit did in El-Masri, a similar case, but against the government). This approach preserves the courts' role in checking the executive's assertion of the privilege. (In contrast, the Fourth Circuit's approach all but takes the judiciary out of the equation, requiring it to defer blindly to the executive anytime the executive asserts it.)
- The majority seemed to take its job seriously. The majority claimed to scrutinize the voluminous evidence carefully before issuing its ruling--another sign that the ruling preserves the courts' role in checking executive assertions of the privilege. It also recognized historical abuses of the privilege and reminded the political branches of their tools to remedy this wrong. It's too much to say that the court was apologetic in its application of the privilege, but it seemed sensitive to counter-balancing interests in a case like this. Again, this approach sets the case apart from El-Masri in the Fourth Circuit.
Despite these last two mitigating aspects of the ruling, it still represents a breathtaking application of the privilege.
Monday, August 30, 2010
The ACLU and the Center for Constitutional Rights yesterday filed suit in federal court in the District of Columbia to stop the administration's targeted killing of Anwar al-Aulaqi, a U.S. citizen living in Yemen and allegedly plotting terrorism against the U.S. (we think, although the government hasn't said precisely why he's targeted). The complaint, brought by al-Aulaqi's father on his behalf, seeks a declaration that the targeting is unconstitutional; it also seeks a permanent injunction prohibiting the government from killing al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety and no lesser force will do. The groups also filed for a preliminary injunction in which, in their argument on "likelihood of success," they lay out their legal case. We last posted on the case when the groups received their license to sue from the Treasury Department.
The groups argue that the targeted, extra-judicial killing violates the Fourth and Fifth Amendments, unless the target poses an imminent threat of death or serious physical injury, and unless lethal force is the last resort. They also argue that the targeted killing violates international customary law and treaty obligations, which carry the same requirements.
The plaintiff's arguments so far hinge on the assumption that the targeted killings are outside the context of an armed conflict--that the targeted killing of a U.S. citizen living in Yemen, a country with which the U.S. is not at war, is not subject to the laws of war.
But as best we can reckon, the government justifies its targeted killing program as part of the conflict with al Qaeda, the Taliban, and associated forces. Harold Koh, the State Department Legal Adviser, said as much in his speech to the American Society of International Law last spring. Koh argued that the program is justified as self-defense under the international law of war and Congress's 2001 Authorization for Use of Military Force. According to Koh, the law of war allows extra-judicial, targeted killings of individuals planning attacks against the U.S. under certain circumstances, and it does not require the U.S. to provide Fourth and Fifth Amendment processes to those belligerents before killing them. We critique Koh's analysis here.
If this turns out to be the government's legal defense, the central first question in the case will be: Is the targeted killing of al-Aulaqi part of the government's conflict with al Qaeda, the Tablian, and associated forces? The answer to the question will give us an important data point in plotting the parameters of the "war on terror" and the government's authority to prosecute that war.
Koh made another comment in the speech that may give a partial preview of the government's defense in the al-Aulaqi case: He said that he couldn't comment publicly on much of the targeted killing program. Taken together with the administration's past practice, this statement may suggest a claim, or even an entire defense, based on the State Secrets Privilege--a troubling possibility.
Thursday, July 29, 2010
The Obama administration has embraced some of the most dangerous and expansive national security positions of the Bush administration and threatens to set a new baseline for presidential authority, according to a report just released by the ACLU. The report, Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration, argues that the Obama administration's significant progress in certain areas related to national security are more than offset by the administration's backtracking to the Bush administration positions. From the Introduction:
But in the eighteen months since [President Obama issued a series of executive orders repudiating the Bush policies on torture, interrogation, secret detention, and Guantanamo Bay], the administration's record on issues related to civil liberties and national security has been, at best, mixed. Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."
The report examines administration policies on government transparency and release of information, accountability of government officials for torture, indefinite executive detention, targeted killings, military commissions, and government surveillance.
This is a good read and an important part of the continuing conversation about administration national security policies. We routinely cover these issues--just check out our posts under the War Powers tag--and have similarly concluded that the Obama administration has adopted some of the Bush administration's constitutional positions on presidential authority and national security. (I also make the argument on the Obama administration's use of the state secrets privilege here.)
But the report's conclusion that the administration "will enshrine permanently within the law" certain policies and practices is perhaps overly dire. For example, some of President Obama's positions have received push-back from Congress; and President Obama has repeatedly signaled that Congress matters--that he will respect Congress in acting under the national security constitution. Unlike President Bush, President Obama has relied only sparsely on inherent executive authority under Article II, instead looking first to congressional authorization for his actions. His consistent reliance on the AUMF before any inherent Article II authority is a good example.
Moreover, some of the Obama administration's positions have received push-back from the courts. Most recently, federal courts have rejected the administration's more outlandish positions in Guantanamo habeas cases. (The administration itself scaled back its prior expansive definition of a detainable person.) The full Ninth Circuit now has a chance to reject the administration's extreme position on the state secrets privilege in the Jeppesen case.
Finally, the administration's actions alone simply cannot "enshrine permanently in the law" those extreme policies and positions that never reach Congress or the courts, especially for a president who claims to rely sparsely on inherent Article II authority. In these areas the President at most establishes an executive precedent. The practice and precedent of President Obama will be important, to be sure, in interpreting future executive authority, but this is not "enshrin[ing] permanently in the law." (This kind of past practice doesn't bind a future executive to also adopt it. Instead, at most, it sets an outer limit to presidential authority with reference to what President Obama did.)
But in the end, it's exactly this practice and precedent in these limited but important areas that make some of President Obama's national security positions potentially durable beyond the next two or six years. The ACLU report thoughtfully examines these and well captures their potential durability in its apt phrase "The New Normal."
Monday, July 19, 2010
The Washington Post has launched its feature "Top Secret America." The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."
The project also includes a searchable online database detailing private contractors and specific locations. The Editorial explanation is worth reading; here is a bit of it:
The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.
Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.
We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.
The feature should be of interest to anyone working on state secrets doctrine and theory. The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable. The Washington Post explanation above also implicates First Amendment concerns.
Thursday, July 15, 2010
Lynne Stewart, the criminal defense and activist attorney, was re-sentenced today in New York pursuant to the Second Circuit decision, US. v. Stewart, 590 F. 3d 93 (2nd Cir. 2009) disapproving her original 28 month sentence and remanding for resentencing. The new sentence is for a period of ten years. Prosecutors sought fifteen to twenty years for Stewart, aged 70.
The interest of Stewart's case for ConLawProfs was expressed in an Op-Ed in LA Times:
But Stewart's plight has larger implications for us all: It is a bellwether of the increasingly stringent secrecy and security measures imposed in federal courts, particularly in terrorism trials — all part of the systemic erosion of due process that reformers expected would end with the election of Barack Obama but which has been only further institutionalized. Stewart's case has come to symbolize the increasing difficulty attorneys face in zealously advocating for politically unpopular clients — a necessary component of due process in an adversary legal system.
[Update: New York Times story here]
Wednesday, March 31, 2010
Judge Vaughn Walker (N.D. Cal.) today denied the government's motion for summary judgment based on its claim that the state secrets privilege prevented plaintiff al-Haramain Islamic Foundation from showing that the government's terrorist surveillance program (TSP) violated the Foreign Intelligence Surveillance Act (FISA). (Thanks to Rebecca Beyer of the San Francisco Daily Journal for the tip.) Judge Walker also granted the plaintiffs' motion for summary judgment and ruled the TSP program unlawful.
The case, Al-Haramain Islamic Foundation v. Obama, is the culmination of years of litigation at the district court and Ninth Circuit and incessant delay tactics and perpetual foot-dragging on the part of the government. Among other things, the government made expansive arguments about the application of the state secrets privilege. (I just posted my paper surveying the government's position on the state secrets privilege post 9/11 here.) This latest ruling rejected yet two more of the government's expansive arguments on the privilege.
The plaintiffs originally filed their complaint in the case with a classified document that had been inadvertently disclosed by the Office of Foreign Assets Control as part of a production of unclassified documents related to Al-Haramain's designation as a "Specially Designated Global Terrorist" organization. (The classified document showed that the plaintiffs were subject to surveillance.) The government moved to dismiss the case, arguing that the very subject matter of the case was a state secret. The Ninth Circuit rejected this expansive claim but also ruled more narrowly that the state secrets privilege protected the classified document from use in the case.
The plaintiffs re-pleaded and included new and detailed factual claims supporting their FISA claim (but omitted the classified document, ruled protected by the state secrets privilege). The government moved to dismiss again, this time arguing that the state secrets privilege foreclosed plaintiffs' attempt to establish their case without the classified document, and that the state secrets privilege overrides the FISA. Both of these arguments are close cousins of the government's expansive argument that the very subject matter of the case was a state secret.
The court in its order today rejected both of these arguments. As to foreclosure, the court ruled that nothing in the Ninth Circuit's ruling foreclosed the plaintiffs from establishing their FISA case through other evidence. (This approach--allowing plaintiffs' suits to move forward, when possible, without privileged material--is the traditional approach to the evidentiary state secrets privilege since U.S. v. Reynolds, as I argue in my article above.) As to override, the court held the government's position untenable: it would mean that the government could use the state secrets privilege at will to avoid FISA litigation; this was contrary to congressional intent in enacting FISA and contrary to the Ninth Circuit's interpretation of FISA in the earlier appeal.
In making these arguments, the government continued its efforts to expand the state secrets privilege into a constitutional, separation-of-powers principle (and not a mere common law privilege). The effect of this position is exactly what Judge Walker wrote: the government could use the privilege anytime it wanted, without meaningful judicial check, to override lawsuits (like Al-Haramain's FISA suit) against it. But the government's position, while argued in several post-9/11 cases, was accepted (so far) by only one circuit court--the Fourth Circuit in El-Masri. The claim was rejected by a three-judge panel of the Ninth Circuit in Mohamed v. Jeppsen Dataplan, the extraordinary rendition case, but the government pressed this same expansive argument to the en banc Ninth Circuit. No word yet on that case.
Wednesday, February 10, 2010
A three-judge panel of the British Court of Appeal today ordered the release of a seven-paragraph summary of U.S. intelligence information about the treatment of Binyam Mohamed, the detainee who was subject to extraordinary rendition, torture, and detention at Guantanamo under U.S. control with UK assistance.
The British Foreign Office fought for over a year to keep the paragraphs secret, asserting national security concerns--a kind of state secrets privilege--and worries that release would impact the government's relationship with U.S. intelligence agencies.
The British Court of Appeal ruled against the Foreign Office, however, in a lengthy judgment (link above) citing, among other considerations, government openness, accountability, and journalists' right to obtain information as bases for rejecting the Foreign Office's claim that release would damage national security. The Court also recognized that Mohamed's assertions were already released in a federal court opinion in the D.C. District in December 2009 in another case.
The Court of Appeal approach is a far cry from the sweeping approach to the state secrets privilege by the Fourth Circuit in El-Masri and by the Bush and Obama administrations. (Our state secrets posts analyzing the scope of the privilege in recent cases and in administration arguments are collected here.) The Guardian summed it up:
Three of the country's most senior judges today shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.
The Foreign Office elected not to appeal the ruling, because it says that the court, even while ruling against it, validated the "control principle." That principle holds that only those who create or give intelligence--and not those who receive it--can be ordered to release it. The Foreign Office web-site says that the court ordered the release of the summary because its substance had already been released by the D.C. District.
This overstates the role that the control principle and the D.C. District played in the decision. In fact, the court ruling goes to great lengths to discuss values related to government openness and accountability. The fact that the D.C. District validated some of Mohamed's claims played only one part in the court's final judgment.
But for the Fourth Circuit and for both the Bush and Obama administrations, none of these concerns plays a role. Government openness and accountability are easily trumped by national security concerns, and prior release of the underlying information--even by the administration itself--is no bar to an assertion of the state secrets claim. Thus the Fourth Circuit and both the Bush and Obama administrations have claimed a sweeping state secrets privilege that allows little role for the courts in judging the validity of the administration's national security claim.
Monday, February 1, 2010
The Center for Constitutional Rights yesterday filed a cert. petition in the U.S. Supreme Court on behalf of Maher Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, seeking review of the Second Circuit's rejection of Arar's claims. The CCR has an outstanding legal resource page, including media links and C-Span's coverage of the Second Circuit's en banc oral argument, here.
Arar filed his claim against a host of senior federal officials and 10 unknown federal law enforcement and immigration agents for violations of the Torture Victim Protection Act and the Fifth Amendment Due Process Clause. The district court rejected Arar's claims; a divided three-judge panel of the Second Circuit affirmed; and the en banc Second Circuit upheld, 7-4 (with four separate and notably sharp dissents).
Arar argues four points in his cert. petition. First, he argues that the Second Circuit's rejection of his Bivens claim for obstruction of access to the courts is contrary to laws implementing the Convention Against Torture (the "CAT") and the purpose and spirit of Bivens. Federal law implementing the CAT prohibits sending any person to a country where he faces danger of torture, 8 U.S.C. Sec. 1231(a) and (e), and grants court of appeals jurisdiction to review constitutional and CAT claims in petitions for review of removal orders. 8 U.S.C. Secs. 1252(a)(2)(D) and (a)(4). Arar argues that defendants in the case violated both, and that the Second Circuit's rejection of his claims allows federal officials "to escape accountability so long as they ensure that aliens in their custody cannot get to court." (Cert. Petition at 13.) This undermines "one of the predominant justifications for Bivens remedies[:] to deter unconstitutional conduct." (Id.)
Arar argues next that the Second Circuit erred in weighing only those factors against recognizing a Bivens action in the case (and not those factors in favor of recognizing an action) and in holding that any reason for hesitation in recognizing a Bivens action should bar such claims. Arar argues that this approach is inconsistent with the balancing approach in Wilkie v. Robbins (2007) ("weighing reasons for and against the creation of a new cause of action"), the Court's most recent Bivens decision, and decisions of other courts of appeals.
Third, Arar argues that the Second Circuit erred in ruling that defendants did not act "under color of law" of a foreign nation, for the purpose of the Torture Victim Protection Act, when they conspired with Syrian officials. Arar argues that defendant's "willful participation in joint action" with Syrian officials satisfies the standard set in Dennis v. Sparks (1980) (holding that private parties who bribed a state judge to issue an injunction acted under color of state law for purposes of 42 U.S.C. Sec. 1983).
Finally, Arar argues that the Second Circuit, in affirming the dismissal because Arar couldn't name the defendants and identify their precise actions, set a pleading standard that exceeded even the heightened pleading standards in Twombly and Iqbal, because, unlike the defendant in Iqbal, the defendants here cannot give (and have not given) an "obvious alternative explanation" for the facts asserted in the complaint.
The sharply divided Second Circuit opinion, and Arar's strong arguments that the ruling runs up against well settled law, make Arar's case a good candidate for Supreme Court review. But the trend of this Court is to curtail judicial review, not expand it. A Court ruling in this case could well extend that trend, possibly doing even more damage to Bivens, to liberal pleading standards, and to access to the courts in cases involving the government's claimed interest in national security. (On this last point, the other case to watch is Mohamed v. Jeppesen Dataplan, the state secrets case pending before the en banc Ninth Circuit. The case was argued December 15, 2009; audio is here.)
February 1, 2010 in Due Process (Substantive), Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 30, 2009
Two significant developments in the post-9/11 national security cases have resulted in restricted access to the federal courts: The Fourth Circuit's 2007 ruling in El-Masri v. Tenet, expanding the state secrets privilege (and two successive administrations' extraordinary state secrets claims in Mohamed v. Jeppesen Dataplan, Inc. in the Ninth Circuit); and the Supreme Court's 2008 ruling in Ashcroft v. Iqbal, heightening the pleading standard for plaintiffs in federal court.
Now in Amnesty Int'l USA v. Blair, the Second Circuit case challenging the FISA Amendments Act of 2008, or the "FAA," we may be looking at a third.
The FAA authorizes broad surveillance of certain international communications. The plaintiffs in Amnesty--a group of civil and human rights organizations--alleged that this violated their First and Fourth Amendment rights and separation-of-powers principles. The district court threw Amnesty out for lack of standing: The plaintiffs failed to allege that they in fact had been surveilled under the FAA, even if they alleged a "well founded fear" of surveillance and significant costs to avoid surveillance.
If the Second Circuit upholds the district court's ruling, the government could have a third new way to dismiss national security cases--lack of standing. Here's how it might work:
1. The plaintiffs in any national security case--extraordinary rendition (as in El-Masri, Mohamed, and Iqbal) or unconstitutional surveillance (as in Amnesty)--would have to allege a more specific harm than the harm alleged in Amnesty to avoid dismissal for lack of standing.
2. But in order to do this, plaintiffs would need information they don't have--and can't get (without getting past a motion to dismiss and into discovery). They would need to speculate--the problem in Iqbal, which was dismissed for lack of sufficiently pleaded facts.
3. And in order to get around Iqbal, plaintiffs would not only need information they don't have, but also information that, by the government's reckoning in El-Masri and Mohamed, constitutes a state secret. Even if plaintiffs could navigate standing (1.) and pleading (2.), El-Masri's version of the state secrets privilege (which is also the government's version) is a game ender.
This triple protection for the government means that plaintiffs would face nearly insurmountable obstacles to gain access to the federal courts in national security cases. And as we've seen in the wake of Iqbal, these protections could conceivably spill over to restrict access in non-national security cases, as well.
Two pending cases are critical: The Ninth Circuit's en banc consideration of Mohamed (which was argued earlier this month); and the Second Circuit's consideration of Amnesty. In Mohamed, the full Ninth Circuit is considering whether to uphold the three-judge panel's ruling rejecting the administration's sweeping state secrets claim. In Amnesty, the Second Circuit is considering whether to uphold the district court's dismissal for lack of standing. These cases will provide important signals about the future of access to the federal courts.
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.
Wednesday, October 21, 2009
The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues.
The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.
Tuesday, October 20, 2009
The American Constitution Society last week hosted an outstanding half-day symposium titled National Security & Human Rights: Progress, Problems and Possibilities. The link contains video and audio of the event. Here's the description:
As the 5th anniversary of the Military Commissions Act approaches, and a few months after the 60th anniversary of the Geneva Conventions, the American Constitution Society for Law and Policy (ACS) hosted a half-day symposium on national security and human rights issues. The symposium included two panel discussions with a diverse array of experts and a keynote address by Assistant Attorney General David Kris.
The morning panel, "Justice for Detainees: A Work in Progress?" featured Deborah Pearlstein, moderator, Visiting Faculty Fellow, University of Pennsylvania Law School; Jameel Jaffer, Director, ACLU National Security Program; Richard D. Klingler, Partner, Sidley Austin LLP; Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch; and Hope Metcalf, Lecturer and Project Director, National Litigation project of the Lowenstein International Human Rights Clinic, Yale Law School.
The keynote address was given by Assistant Attorney General for National Security David Kris. The afternoon panel, "The State Secrets Privilege: A Case for Reform?" featured David Cole, moderator, Professor of Law, Georgetown University Law Center; Amanda Frost, Associate Professor of Law, American University Washington College of Law; David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism; Vincent Warren, Executive Director, Center for Constitutional Rights; and Ben Wizner, Staff Attorney, ACLU National Security Program.