Security secrets and justice

Monday, September 13, 2010

IN 2007, FIVE MEN sued Jeppesen Dataplan, claiming that the Boeing subsidiary worked with the U.S. government to forcibly drag them to foreign countries where they were tortured in the name of fighting terrorism.

Last week, the California-based U.S. Court of Appeals for the 9th Circuit dismissed the lawsuit even before the men had a chance to make their case in full. That is because the Obama administration, like its predecessor, invoked the state secrets doctrine and argued that no aspect of the case involving the government's extraordinary rendition program could be litigated without risking leaks that could significantly harm national security.

Judges have the option of throwing out cases without examining the plaintiff's evidence or assessing the defense of the government or its proxies "where the very subject matter of a lawsuit is a matter of state secret."

In the past, some judges have relied on this precedent to rubber-stamp an administration's secrecy claims. A different line of Supreme Court precedent allows judges to dig a little deeper to determine whether the case may proceed without jeopardizing state secrets.

The 9th Circuit took this second path. The decision noted that the judges "thoroughly and critically reviewed the government's public and classified declarations" and examined the plaintiff's preliminary evidence.

The judges noted that new procedures adopted under Attorney General Eric H. Holder Jr. to ensure that the executive legitimately asserts the secrecy privilege were applied in this instance. In the end, the majority in the 6 to 5 ruling concluded that "even assuming plaintiffs could establish their entire case solely through nonprivileged evidence -- unlikely as that may be -- any effort by Jeppesen to defend would unjustifiably risk disclosure of state secrets."

The case again points out the need for a new law to govern cases in which national security secrets are involved.

The State Secrets Protection Act, being shepherded by Sen. Patrick J. Leahy (D-Vt.) and by Rep. Jerrold Nadler (D-N.Y.), is such a vehicle. The legislation removes a judge's ability to throw out a case without examining the evidence. If a judge concludes that a certain piece of information or evidence is too sensitive to admit, he is required to consider whether a summary could be substituted. The bill envisions dismissal of a case in its entirety as a last resort.

There may be times when this last result is the only responsible option, but only with clear and fair laws in place can the public rest assured that plaintiffs have been given a fighting chance in court.

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