Constitution Project Disappointed by Justice Department Secrecy Stance

Constitution Project President Virginia Sloan expressed disappointment
with the Justice Department's failure to abandon the broad secrecy claims
originally made by the Bush administration in a case argued today before the
Ninth Circuit Court of Appeals.

"Regrettably, the Department of Justice missed its first
opportunity to confine its assertion of the state secrets privilege to actual
national security secrets," said Ms. Sloan. "The Justice Department should have
agreed to an independent review of the evidence by the trial judge and
repudiated the Bush administration's broad secrecy claims. By continuing the
Bush administration's overbroad assertion of the state secrets privilege, the
Obama administration places at risk its principled commitments to transparency,
accountability, and the rule of law."

Today, the U.S. Court of Appeals for the Ninth Circuit heard
argument concerning whether a federal trial court properly dismissed a lawsuit on
state secrets privilege grounds. The suit alleges that defense contractor
Jeppesen knowingly flew five people to a foreign country where they were
tortured as part of the CIA's "extraordinary rendition" program. The case is Mohamed v. Jeppesen Dataplan.

The state secrets privilege is a legal doctrine whose
purpose is to prevent public disclosure of particular evidence when the
disclosure would threaten our national security. The Bush Justice Department persuaded
a district court judge that the very
subject of the lawsuit-the CIA rendition program-was itself a state secret,
and that merely litigating the case would threaten national security. The
program has been widely reported in the press.

According to Ms. Sloan, "The trial judge, not the executive
branch, should determine what evidence the government can legitimately withhold,
and whether enough non-privileged evidence exists to allow the case to proceed."

On Friday, the Constitution Project released a letter
calling on the Obama administration to allow the lawsuit to go forward. In 2007, the Constitution Project released a report
signed by a bipartisan coalition that endorsed reforming
the state secrets privilege. To speak with our policy expert, please
contact Daniel Schuman at dschuman@constitutionproject.org or
202-580-6922.