Rule of Law Should Come First....

From Secrecy News:

STATE SECRETS VS. THE RULE OF LAW

The inherent tension between the state secrets privilege and the rule of law reached the breaking point last week when an appeals court dismissed the claims of several persons who said they were illegally transported and tortured through a CIA "extraordinary rendition" program. They would not be permitted to litigate their case, the court decided, because to do so would place "state secrets" at risk.

"This case presents a painful conflict between human rights and national security," the 9th circuit court of appeals noted in its September 8 opinion (pdf) in Mohamed v. Jeppesen Dataplan, and by a 6-5 majority the judges determined that security considerations would take precedence.

"We have thoroughly and critically reviewed the government's public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets, 'which, in the interest of national security, should not be divulged'," according to the majority opinion.

At the same time, the majority acknowledged, "Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs in this action, our decision forecloses at least one set of judicial remedies, and deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors."

For these reasons, "Dismissal at the pleading stage" as in this case "is a drastic result and should not be readily granted." Yet grant it the court did.

But the majority seemed conflicted and apologetic about its own ruling. It ordered the government to pay the parties' costs, and it devoted several speculative paragraphs to identifying potential "non-judicial remedies" that might be available to the plaintiffs. Perhaps Congress could investigate the matter, the court weakly noted, or maybe pass legislation on behalf of the plaintiffs.

And just because the court ruled against the plaintiffs, the majority suggested, that "does not preclude the government from honoring the fundamental principles of justice" and providing reparations to the plaintiffs anyway.

But these suggestions range from "impractical" to "absurd," five dissenting judges wrote. "Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter."

Attorney General Eric Holder's September 23, 2009 policy statement on the state secrets privilege did hold out the possibility of seeking Inspector General review of allegations of misconduct whose adjudication was blocked by the use of the state secrets privilege:

"If the Attorney General concludes that it would be proper to defend invocation of the privilege in a case, and that invocation of the privilege would preclude adjudication of particular claims, but that the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation...." (section 4C).

Given the court's extended discussion of non-judicial remedies, this case would seem to be a fitting subject for an Inspector General investigation under the 2009 Justice Department policy. But it could not immediately be learned if the Department has made such a referral to an agency Inspector General in this or any other state secrets case.

"The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law," the five dissenting judges wrote. "This case now presents a classic illustration."

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