Jeppesen, Song Remains the Same, Maybe

This is getting to be a maddeningly familiar story: Plaintiffs file a lawsuit; the federal government intervenes, asserting the state secrets privilege; a judge promptly rolls over, granting a motion to dismiss without looking at the evidence. This case of the five “extraordinary rendition” victims seeking redress against a Boeing subsidiary for flight services provided to the CIA (Mohamed v. Jeppesen Dataplan, Inc.) is only the latest. Before the defendant filed an answer, before discovery began or anyone presented evidence, a federal district judge ruled that “proceeding with this case would jeopardize national security and foreign relations.” Even though the CIA’s rendition program was hardly a black box, the judge thought “the issues involved are non-justiciable because the very subject matter of the case is a state secret.”

This time, at least, effective objections are being raised against such an abject abdication of judicial responsibility. The ACLU (lead counsel for the plaintiffs) has filed a comprehensive appeal to the 9^th Circuit, and the Brennan Center on July 10 weighed in with a compelling amicus brief. Much is at stake in their arguments.  The executive branch’s overbroad claim of privilege, coupled with the judiciary’s reflexive deference, endanger not only the plaintiffs’ rights, but also the critical balance of powers envisioned by this country’s founders.

That balance has been under threat ever since the U.S. Supreme Court formally recognized the state secrets privilege in the landmark 1953 case US v. Reynolds. In that case, three widows sued the government when their husbands, civilian engineers, died in the crash of a U.S. Air Force B-29. During discovery, the government refused to hand over the Air Force accident report—refused even to let the trial judge see it for an in camera inspection. Both the trial judge and an appellate panel eloquently insisted that the government had no unilateral right to decide what it could withhold—"The Government of the United States is one of checks and balances," wrote U.S. Circuit Judge Albert Maris, in an opinion still read by law students today. “One of the principal checks is furnished by the independent judiciary which the Government established.”

The Supreme Court, alas, reversed Maris, in a decision that over the past half century increasingly has allowed the Executive Branch unbridled powers. The wording of Reynolds did not itself grant those powers—reaching imperfectly for balance, Reynolds said judges should only grant state secrets claims if the government could prove that a “reasonable danger” to national security existed. But the application of Reynolds has evolved in recent decades, to a point where judges now almost automatically grant the government’s claims without even looking at the underlying documents. Just as Judge Maris feared, the government’s desire to protect military secrets has started to look a good deal like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability. 

Judges should not let the government use the state secrets privilege as an absolute shield.  They should at least examine the evidence and decide independently what qualifies as a threat to national security. If the justices had done so in the Reynolds case, they would have seen that the disputed accident report (finally declassified in 1996) contained not state secrets but rather a stark chronicle of military negligence.

We may finally be seeing an end to this retreat of the judiciary. A handful of district judges have resisted government state secrets claims in the NSA eavesdropping cases, and an appellate panel, after looking at the underlying documents, last month concluded there was no basis to have labeled fruit peddler Huzaifa Parhat an enemy combatant, or to have detained him at Guantanamo Bay for the last six years. The 9^th Circuit should continue this pattern now in Mohamed v. Jeppesen Dataplan, Inc.  The judges should let this case go forward. The judiciary should not abdicate its critical role in our system of checks and balances.