9th Circuit Court of Appeals Rejects Overbroad State Secrets Claim by Federal Government

The Constitution Project welcomes today's decision of the U.S. Court of Appeals for the Ninth Circuit rejecting the Executive Branch's claim that the "very subject matter" of a case alleging torture is a state secret. The Court reversed the district court's dismissal of the lawsuit, and held that the case, Mohamed v. Jeppesen Dataplan, can proceed. The court held that the state secrets privilege is an evidentiary doctrine, and the question for courts "is only which evidence is secret and may not be disclosed in the course of a public trial."

"The Ninth Circuit's decision recognizes that the state secrets privilege is not an immunity doctrine that can enable the Executive Branch to shield its conduct from any judicial review," said Constitution Project Senior Counsel Sharon Bradford Franklin. "We are thrilled that the decision preserves the role of the courts as an independent check on the Executive Branch's conduct."

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 trial court must now evaluate which evidence in the case is actually subject to the state secrets privilege and whether there is sufficient non-privileged evidence available to fully litigate the case.

Before the February oral argument in the case, the Constitution Project called on Attorney General Holder to reverse the litigation position previously taken by the Bush administration in this case, and to consent to have the trial judge review the evidence at issue.

"Although the Justice Department failed to change its position in this case and recognize the role of the courts in reviewing state secrets claims, we are pleased that the court has now required such a review. We call on the Justice Department to follow the Ninth Circuit's ruling, and permit the case to proceed," added Ms. Franklin.

In 2007, the Constitution Project released a report signed by a bipartisan coalition that endorsed reforming the state secrets privilege. To view the report, go to:

https://www.constitutionproject.org/newsdetail.asp?id=164

To view the letter sent to Attorney General Holder, please visit:
https://www.constitutionproject.org/pdf/Letter_to_Holder_Regarding_Mohamed_v_Jeppesen_Dataplan.pdf