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Constitution Project Dismayed by Department of Justice Request for Review of State Secrets Case

Ninth Circuit previously rejected administration's far-reaching state secrets claim in Mohamed v. Jeppesen Dataplan

WASHINGTON - The Obama administration filed a brief today seeking a full bench, or en banc, review of the U.S. Court of Appeals for the Ninth Circuit's decision earlier this year in Mohamed v. Jeppesen Dataplan. In April, the Court rejected the administration's claim that the "very subject matter" of a case alleging torture is a state secret. The Constitution Project praised the Court's decision and is troubled by the Obama administration's continued adoption of an overly-broad assertion of the state secrets privilege, as exhibited by today's filing.

"The Obama administration's decision to continue to press its overly-expansive state secrets claim undermines the new administration's commitment to transparency, accountability and the rule of law," said Sharon Bradford Franklin, Constitution Project Senior Counsel. "We are very disappointed by the Department of Justice's continued assertion of the Bush administration interpretation of the privilege as an immunity doctrine. The Ninth Circuit's decision in April properly recognized the critical role of courts in checking executive branch secrecy claims. The bedrock of our nation's government is a system of checks and balances - a system that is undermined by the overbroad version of the state secrets privilege asserted by the Obama administration."

Mohamed v. Jeppesen Dataplan concerns allegations by five people that defense contractor Jeppesen Dataplan, a subsidiary of Boeing, flew them to a foreign country where they were tortured as part of the CIA's extraordinary rendition program. The Bush administration intervened in the case on behalf of Jeppesen, seeking dismissal of the lawsuit on the basis of the state secrets privilege. The Obama administration has adopted the Bush administration's broad claim for dismissal of the entire lawsuit, claiming the very subject matter is a state secret.

In February, just before oral argument, the Constitution Project called on Attorney General Eric Holder to reverse the position taken by the Bush administration in this case, and to consent to having the trial judge in the Jeppesen lawsuit review the evidence claimed to be secret and determine whether enough non-privileged evidence is available for the case to proceed. To see the letter sent to the attorney general, go to:

In 2007, the Constitution Project released a report signed by a broad bipartisan coalition that endorsed reforming the state secrets privilege. The report is available at:


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The Constitution Project is a politically independent think tank established in 1997 to promote and defend constitutional safeguards. More information about the Constitution Project is available at

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