9th Circuit's Troubling New State Secrets Decision Demonstrates Need for Reform

The 9th Circuit Court of Appeals, ruling en banc in a case called Mohamed v. Jeppesen Dataplan, recently adopted the Bush and Obama Administration's joint Executive
Branch power grab in the form of the state secrets privilege. The Court,
in a 6-5 en banc ruling, dismissed a case brought by victims of
horrendous torture and forced disappearance against a Boeing subsidiary
whose employee admitted that they knew they were handling the "torture
flights." In refusing to hear the case, even the portions that could be
based solely on already public evidence, the Court shunned its role as a
co-equal branch of government protecting the rights of individuals
against overreaching government. It also demonstrated just how badly we
need Congress to step in and reform the state secrets privilege.

EFF had filed an amicus brief
in the case, warning about this outcome: "Adopting the government's
position would abdicate the Judiciary's Article III responsibility to
adjudicate the constitutional and statutory limits on Executive
authority."

Unfortunately, abdicating its responsibility is just what the Court
did. It ordered summary dismissal of the complaint without allowing any
discovery, or presentation of the public evidence or even a plan by the
plaintiffs to litigate the case while respecting the necessary secrecy,
something that has been regularly done
in cases involving national security. And in doing so it created a
dangerous risk that the Courts will allow the Executive broad unfettered
powers to "turn the Constitution on and off at will," exactly what the
Supreme Court refused to do in Boumediene v. Bush.
In that case, the Supreme Court directly addressed and rejected the
government's main argument in Mohammed, that the case involved a
"painful conflict between human rights and national security." The
Supreme Court said:

Security subsists, too, in fidelity to freedom's first
principles. Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adherence to the
separation of powers.

So what does this mean for Jewel v. NSA,
EFF's case against the government for mass warrantless wiretapping of
ordinary Americans which has also faced broad state secrets claims from
the government?

Likely nothing. The Ninth Circuit expressly noted that its analysis would be different where, as with FISA, Congress has passed a specific law on the subject.

In its almost apologetic Jeppesen Dataplan ruling, the 9th Circuit
also emphasized that "it should be a rare case where the state secrets
doctrine leads to a dismissal at the outset of the case." We strongly
agree. And while we think the Court got it wrong in Jeppesen Dataplan,
where the victims were foreigners who were injured largely on foreign
soil by foreign agents, it would be an even worse tragedy if the Court
abdicated its role to protect individual rights and privacy when the
victims are millions of American citizens on American soil who have no
connection to terrorism and who simply want basic privacy in their use
the phone and the internet.

Related Issues: NSA Spying

Related Cases: Jewel v. NSA