After Supreme Court Rejects State Secrets Case, Groups Urge DOJ to Implement Oversight Policy

Today, the Brennan Center for Justice urged the Department of Justice (DOJ) to implement the state secrets policy it announced on September 23, 2009.

The Center, with 25 other groups and individuals, called on the DOJ today, after the Supreme Court declined to hear Mohamed et al. v Jeppesen DataPlan, Inc., a case regarding the government's use of the state secrets privilege to defeat a lawsuit challenging the post-9/11 extraordinary rendition program.

In the case, five men alleged that Jeppesen, a subsidiary of the Boeing Company, helped the CIA transfer them to other countries for detention, interrogation, and torture. The government argued that the very subject of extraordinary rendition is a state secret and succeeded in shutting down the lawsuit.

By refusing to hear the case on appeal, the Supreme Court leaves in place multiple federal court of appeals decisions adopting a disturbingly broad interpretation of the government's right to invoke the state secrets privilege -- thus scuttling any hope that the courts will provide either justice for victims of rendition or accountability for the government officials who designed and carried out these programs.

"When President Obama took office, he promised to change the administration's approach on the state secrets privilege," said Emily Berman, counsel for the Brennan Center's Liberty and National Security Program. "Although the Justice Department's new policy was not intended to stop the state secrets privilege from being invoked, it did promise more oversight. With the Court once again declining to hear an extraordinary rendition case, it is time to live up to that promise."

According to the Justice Department's policy, when the state secrets privilege prevents a lawsuit from proceeding, but the complaint raises credible allegations of government wrongdoing, "the Department [of Justice] will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency."

On December 15, 2010, the Brennan Center, joined by 25 other groups and individuals, sent a private letter to the Attorney General asking him why, given the credible allegations that have been raised in Jeppesen and similar cases -- such as Arar v. Ashcroft and El-Masri v. Tenet -- no thorough Inspector General investigations have taken place. After nearly five months, the DOJ has neither responded to nor acknowledged receipt of the letter. The letters' signatories made the decision to publicize the letter because the Supreme Court's refusal to hear the Jeppesen case greatly increases the urgency of Inspector General review. The signatories also sent a second letter to the Justice Department reiterating their request.

"We believe that a thorough investigation--conducted by all relevant Inspectors General with full access to all relevant witnesses, documents, tapes, photographs, and other material, and culminating in a public report--would serve the interests of justice, and would accord with the September 23 policy's aspiration to 'provide greater accountability and reliability in the invocation of the state secrets privilege,'" said the letter. "Moreover, where government wrongdoing is uncovered, providing plaintiffs appropriate redress could at least provide some small measure of recompense for the denial of these plaintiffs' day in court."

Other groups that signed the letter include: ACLU of North Carolina, Alliance for Justice, Amnesty International USA, Bill of Rights Defense Committee, Center for Constitutional Rights, Center for Justice & Accountability, Center for Media and Democracy, The Constitution Project, Defending Dissent Foundation, Essential Information, Government Accountability Project, Human Rights First, The James Madison Project, No More Guantanamos, North Carolina Stop Torture Now, OpenTheGovernment.org, PEN American Center, Physicians for Human Rights, Progressive Librarians Guild, and Project On Government Oversight.

In addition, the following individuals signed the letter: Matthew Alexander, Former Senior Military Interrogator; Barbara Frey, Director, Human Rights Program, University of Minnesota; Almerindo Ojeda, Director, U.C. Davis Center for the Study of, Human Rights in the Americas; Chip Pitts, Lecturer in Law, Stanford Law School; and Naureen Shah, Human Rights Institute, Columbia Law School.

View both letters here: https://www.brennancenter.org/content/resource/letter_to_attorney_general_holder_on_the_justice_departments_state_secrets

For more information or to set up an interview, please contact Erik Opsal at erik.opsal@nyu.edu or 646-292.8356.