ACLU's Ben Wizner Talks About Mohamed v. Jeppesen, Extraordinary Rendition, and State Secrets

ACLU attorney Ben Wizner, lead counsel in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its role in the CIA's extraordinary rendition program, took time today to talk with me by phone about the case, the state secrets privilege, and the significance of the Obama administration's reassertion of the Bush administration's sweeping state secrets arguments.  (The Ninth Circuit handed down an important decision yesterday denying the government's state secrets claim.) 

Our full interview--about 17 minutes on an MP3 file--is available here.  Here are some highlights:

On the Scope of the State Secrets Privilege, According to the Government's Theory:

BW: Well, the state secrets privilege is an evidentiary privilege.  It was established and defined by the Supreme Court in a case called United States v. Reynolds in 1953, and in that case the Supreme Court said that it’s a privilege that belongs to the government, that can be invoked essentially during discovery and at trial.  And the purpose of the privilege is to block disclosure of state secrets and military secrets the use of which would harm national security.  What we’ve seen in the last six, seven years in particular is the mutation of that evidentiary privilege into a kind of broad immunity doctrine.  And so instead of, in our case and others, asserting the privilege with respect to specific evidence, the Bush administration and then the Obama administration asserted the privilege with respect to the entire lawsuit.  There was no evidence in dispute in the Jeppesen case, because Jeppesen had not even answered our complaint.  There had not been a single discovery request.  And so the state secrets assertion was made on the basis of a self-serving affidavit by Michael Hayden, the head of the CIA.  And I say self-serving, because you have here a remarkable doctrine that at least according to the Bush administration before this Ninth Circuit opinion allowed the CIA to engage in torture and then have the CIA itself--the perpetrators themselves--go into court and demand dismissal of a case based on secrecy grounds before there had even been a request for evidence.  And that’s why, as you say, this doctrine really had evolved or mutated beyond any recognition.  And what the Ninth Circuit’s decision did yesterday was it restored the state secrets privilege to a rule to its origin as a rule of evidence and not a doctrine of immunity

On the Differences Between El-Masri and Mohamed:

SDS: Ben, you mentioned the El-Masri case out of the Fourth Circuit about a year and a half ago.  What’s the difference between the El-Masri case and the Mohamed case, the Jeppesen case, that came down yesterday, that accounts for the dramatic difference in the opinions in the two different circuits.

BW:  Well, in one sense, the timing I think is significant.  The Ninth Circuit had the benefit of seeing just how broadly or over broadly the Bush administration had been invoking this privilege over the last several years in a wide variety of cases.  But I think fundamentally the right answer to your question is that the Fourth Circuit got the law wrong, and the Ninth Circuit got the law right.  And I don’t know that there is a better way of putting it than that.  But by the Fourth Circuit’s reasoning, the case would have had to be dismissed even if El-Masri had been a U.S. citizen and not a foreign citizen, even if the events had taken place in Minneapolis and not Macedonia, and even if Mr. El-Masri had been assassinated by the CIA and not just kidnapped and tortured by them.  What the Ninth Circuit said yesterday is that the government really wanted to cordon off entire categories of CIA conduct and shield them entirely from judicial review and that that was a serious violation of separation of powers.  Unfortunately, I think that that’s precisely what the impact of the Fourth Circuit decision is in the Fourth Circuit. 

On the Significance of the Ninth Circuit's Decision Yesterday in Mohamed: 

SDS: [Two differences stand out between El-Masri and Mohamed.  First, the Ninth Circuit in Mohamed seemed keenly attuned to the separation-of-powers concerns underlying the state secrets privilege in a way that the Fourth Circuit in El-Masri was not.  Second, the Fourth Circuit in El-Masri seemed to conflate the "Totten privilege" and the "Reynolds privilege," where as the Ninth Circuit separated them.]

BW:  . . . Your second point deserves some elaboration.  There is a narrow doctrine—justicaibility doctrine—that derives from the Totten case in 1875.  The Supreme Court has considered this doctrine in two cases, both of those cases involved precisely the same fact pattern: an alleged former spy, who allegedly had been promised some kind of lifetime of monetary support who was suing the United States for enforcement of that contract, and the Supreme Court has ruled unequivocally that secret espionage contracts can’t be enforced.  Now the government in the El-Masri case and in this case was trying to take that doctrine and essentially say that it rendered non-justiciable any case in which the plaintiffs allege an espionage agreement between various parties.  Now of course in our case we allege that the United States was working together with this company Jeppesen Dataplan.  But of course our clients were not parties to any kind of contract.  And the idea that they could be kept out of court on some kind of contract theory always seemed like a stretch, but the Fourth Circuit really muddled that doctrine I think a fair amount.  As we’ve said in our brief, perhaps if Jeppesen were suing the United States for payment on its rendition work, the Totten doctrine might apply.  But even there probably not, because this was not an espionage contract, and the services that Jeppesen performed for the CIA in connection to the rendition program are not different from the services of whatever company made the blindfolds, or the shackles, or the paper shredders for the CIA in connection with their rendition and torture program.  And so I think the Ninth Circuit really did a service to the country and to the case law by really clarifying those different strands of authority.

As Wizner suggests, we've seen a kind of "Totten creep," best illustrated by the Fourth Circuit's decision in El-Masri.  And, as Wizner says, the implication of El-Masri is that the government could immunize itself from any claim simply by asserting the privilege and supporting it with a single "self-serving" affidavit.  This stretches the state secrets privilege far beyond the scope set in either Totten or Reynolds. 

 

As Wizner suggests later in the interview, the Obama administration's reassertion of the Bush administration's position occured against the backdrop of the debate about investigating and prosecuting agents, contractors, officials, and lawyers who engaged in or authorized torture.  The administration's decision whether to appeal, too, will likely be informed by this debate.  But the state secrets privilege will outlive this debate, and the Obama administration would do well not to press an unreasonably expansive privilege merely to immunize a private contractor (or government official) from suit. 

 

Moreover, the Ninth Circuit ruling is consistent with the administration's stated commitment to openness and transparency, with its commitment to a more measured use of the state secrets privilege, and with legislation now pending before Congress. 

 

Its next move in Mohamed will give us an even stronger indication of how it balances these considerations.

 

SDS