Sometimes a story is so troubling that it takes some time to digest, and the ruling delivered last Wednesday by the Ninth Circuit Court of Appeals (PDF), in a lawsuit filed by the ACLU on behalf of five men subjected to “extraordinary rendition” and torture, is one such story. The men — Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — claim, with some justification, and with copious amounts of evidence in their possession, that their rendition, and their torture in a variety of countries, was facilitated by Jeppesen Dataplan, Inc., a subsidiary of Boeing whose role as “The CIA’s Travel Agent” was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.

In statements that were later submitted to the court, Sean Belcher, a former employee, said that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

Last Wednesday, however, when asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

As Judge Raymond C. Fisher stated in the majority opinion (in which he was joined by Chief Judge Alex Kozinski, and Judges Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea):

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.

This is an extraordinarily depressing result, because the Jeppesen case, which had been dismissed by the District Court in 2008, had then been won on appeal before three judges in the Ninth Circuit Court of Appeals in April 2009. On that occasion the judges in question — Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby, Jr. — had thoroughly demolished the government’s claim — first submitted by the Bush administration, and then, to the judges’ great surprise, slavishly copied by President Obama’s Justice Department — that it could dismiss the case by invoking the “state secrets” doctrine.

Unlike last Wednesday, when the majority agreed with the government regarding the “state secrets” doctrine, the panel of judges in April 2009 had no hesitation, in reviewing what they described as the “relatively thin history” of the doctrine, in dismissing the government’s reliance on two precedents because of their irrelevance to the Jeppesen case. One, Totten v. United States, involved a secret agreement between the government and a spy in the nineteenth century, and the other, United States v. Reynolds, from 1953, dealt with the prevention of “discovery of secret evidence when disclosure would threaten national security.”

As I explained in an article at the time:

[The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

In a particularly powerful passage, Judge Hawkins stated:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law (emphasis added).

Elsewhere, as I also explained:

[T]he judges drew on Boumediene [v. Bush, the 2008 ruling granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights], in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

As I also explained:

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

Sixteen months on, it is clear from reviewing Judge Hawkins’ opinion that nothing has fundamentally changed, and that therefore the majority that prevailed last week has simply repeated the “clear error” the District Court made when it initially dismissed the case, and has endorsed the President’s right to “classify politically embarrassing information simply to place it beyond the reach of judicial process,” albeit with more obvious hand-wringing.

If justice does still mean anything under the cowardly Obama administration, then the Jeppesen case will proceed to the Supreme Court, although, since Justice John Paul Stevens retired (PDF), there is no longer much hope for justice there either. Justice Stevens’ replacement, Obama’s former Solicitor General Elena Kagan, is contaminated by her involvement in national security arguments on behalf of her former boss, and will have to recuse herself from anything touching on the Bush administration’s toxic legacy. As a result, the Supreme Court is likely to split 4-4 on issues like the Jeppesen case, handing victory back to the senior administration officials who so desperately crave blanket immunity for the Bush administration’s torturers.

This is a profoundly depressing thought, especially as so many commentators have expressed their disgust at last week’s ruling. In an editorial entitled, “Torture Is a Crime, Not a Secret,” the New York Times lamented, “The decision diminishes any hope that this odious practice [“extraordinary rendition”] will finally receive the legal label it deserves: a violation of international law,” and the Los Angeles Times declared, “The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.”

For the ACLU, Ben Wizner stated:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

Moreover, on Monday, Scott Horton of Harper’s Magazine not only pointed out that the facts of the case “were established beyond any reasonable doubt without the need to turn to classified information,” but also reminded readers that, “Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the US Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.” Horton also reminded readers that, by signing the UN Convention Against Torture in 1987, the United States “made an unequivocal commitment to the international community to compensate those who are tortured by its agents” — and also, it should be noted, to bring the perpetrators to justice.

In addition, Horton pointed out that, in February this year, the Court of Appeal in London, which “had already viewed the formidable evidence” in Binyam Mohamed’s case, had brought to an end 18 months of Obama-style stonewalling by foreign secretary David Miliband regarding British knowledge of Mohamed’s torture by US agents, and had ordered the information to be publicly released, leading to a criminal investigation, which is ongoing, and, with a change of government, the announcement of a judicial inquiry into British complicity in torture — something that many of Obama’s supporters had hoped would happen in the US. As Horton explained, “The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes.”

Horton also explained that, although the position taken by Eric Holder’s Justice Department — that it is “protecting state secrets essential to our security” — is “risible, and half of the court saw through it,” what is really at stake is the possibility that evidence produced in the US could be used elsewhere. As he stated:

Twenty-three US agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 US agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein [Air Force Base] in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion — or even in most of the press accounts about it.

While we wait to see what — if anything — happens next, I’d like to leave you with some sensible words regarding the legitimate scope of the “state secrets” doctrine, as written by Judge Hawkins in the opening paragraphs of his dissenting opinion last week, in which he was again joined by Judges Schroeder and Canby, and also by Judges Sidney R. Thomas and Richard A. Paez:

The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint. Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

This is important, because an approach that focuses on specific evidence after issues are joined has the benefit of confining the operation of the state secrets doctrine so that it will sweep no more broadly than clearly necessary. 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. This case now presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets. When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately. […]

This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the well-pleaded allegations of the complaint are true, and that we “construe the complaint in the light most favorable to the plaintiff[s].” The majority minimizes the importance of these requirements by gratuitously attaching “allegedly” to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as “torture flights.” Instead, the majority assumes that even if Plaintiffs’ prima facie case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.