Major defeat for Bush/Obama position on secrecy

An appellate ruling severely limits presidential powers of secrecy used to bar lawsuits claiming illegal government behavior.

Published April 28, 2009 6:52PM (EDT)

[updated below (interview with lead counsel Ben Wizner of the ACLU) - Update II - Update III (transcript of Wizner interview)]

The first sign that the Obama DOJ would replicate many of the worst and most radical arguments of the Bush DOJ was in the Jeppesen case, a lawsuit brought by five victims of the CIA's rendition and torture program (including Binyam Mohamed).  The Bush administration had argued that the entire "subject matter" raised by the lawsuit (the rendition program) was such a gravely important "state secret" that the court could not consider any lawsuit relating to that issue.  That argument was a by-product of one of the Bush DOJ's most controversial actions:  its radical expansion of the "state secrets" doctrine.  Whereas that privilege was once an evidentiary privilege enabling the Government to declare specific documents too secret to use in litigation, the Bush DOJ converted it into an all-purpose shield allowing them to have entire lawsuits dismissed even where the lawsuit alleged that the President's conduct was illegal.  

The District Court in Jeppesen had accepted the Bush DOJ's argument and dismissed the lawsuit, and on appeal in February, the Obama DOJ -- to the obvious surprise of the judges and in a reversal of everything Democrats claimed they believed during the Bush presidency -- told the Ninth Circuit panel that they embrace the Bush DOJ "state secrets" position in full (a position they've since repeated in other cases).

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret.  Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security 

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law:

Read that last sentence -- that, said the court, is the power of lawlessness which the Obama administration was attempting to preserve for itself.

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."  Quoting the Supreme Court's language in Boumediene -- which in 2008 declared unconstitutional the Military Commission Act's attempt to abolish habeas corpus -- the court today noted that equally imperative for the court is to preserve "freedom's first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."  The court concluded that applying the secrecy privilege on a document-by-document basis, rather than allowing the Government to abuse the privilege to bar citizens from vindicating their legal rights in court, preserves all of those competing interests.  In short, presidential assertions of secrecy are neither absolute nor supreme.

Today's decision is a major defeat for the Obama DOJ's efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny.  Given how Obama recently emphasized how committed he is to defending government secrecy powers in court, it it highly likely the Obama DOJ will attempt to appeal this ruling further -- to a full 9th Circuit panel and/or to the Supreme Court -- but in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted).  Finally, these 5 torture victims will have their day in court.

* * * * *

I'll have an interview posted shortly with the ACLU's Ben Wizner, lead counsel for the plaintiffs in this case.


UPDATE:  My interview with Wizner about today's ruling -- which is roughly 10 mintues long and which I highly recommend -- can be heard by clicking PLAY on the recorder below.  He does a superb job of explaining why this victory is so crucial to anyone concerned with basic civil liberties, accountability and checks on executive power abuses.  He also notes -- and I agree entirely -- that the court's decision is a model of clarity and logical reasoning, and really seems to have been designed to convey as clearly as possible, to lawyers and non-lawyers alike, why the secrecy theories defended by the government here are so dangerous and distorted.  Reading the court's relatively short decision is also highly recommended:

[audio src='']


UPDATE II:  From the first paragraph of Charlie Savage's New York Times article on today's decision:

A federal appeals court ruled Tuesday that a lawsuit brought by five men who say they had been tortured as part of the Central Intelligence Agency’s “extraordinary rendition” program could proceed, dealing a blow to efforts by both the Bush and Obama administrations to claim sweeping executive secrecy powers.

That pretty much sums up what happened.


UPDATE III:  The transcript of my interview with Wizner is here.

Glenn Greenwald: My guest today is Ben Wizner of the ACLU's national security project, who is the lead counsel for the plaintiffs in the case of Mohamed vs. Jeppesen DataPlan.  The plaintiffs in that case had a major victory today when a Ninth Circuit Court of Appeals panel rejected the position of the Bush administration, and now the Obama administration, regarding state secrets, and now reinstated the case of the plaintiffs.  Ben, congratulations, and thanks very much for taking a few minutes to talk to m.

Ben Wizner: Well, I'm so delighted to be here, Glenn, and thanks for your interest in this case from the beginning.

GG: My pleasure. Now, before we talk about today's ruling, just very briefly, if you could, summarize what this case is, who the plaintiffs are and what's happened up until today. Most people listening will know, but just very briefly if you could bring us up to date with where things are.

BW: I will, but I can't help myself, I have to talk about the victory first.

GG: Let me then restate my question, and withdraw the one I just asked, and instead ask for you to describe the significance of today's decision.

BW: Well, this is really an extraordinary and historic decision, and the first thing that has to be said about it, is that the courts got it exactly right. And this is one of those clearly written legal opinions that it does not take a lawyer to understand. I'm sure you'll link to the decision if you haven't already, and I would encourage the listeners to read this opinion, because it lays out in clear language just what was at stake in this case.

This case was never about any claim of secrecy that was legitimate. This was not about whether a piece of classified evidence would be released to the public. This case was fundamentally about whether the executive branch would be immune, would, in a sense be unaccountable, to victims of the greatest human rights violation simply by making an over-broad assertion, a bogus assertion of secrecy.

And here you have the perpetrators themselves - this is a case alleging that the CIA kidnapped and tortured or delivered to torture, and it was CIA that went into court with a declaration from Michael Hayden saying, if this case goes forward, secrets will be revealed, and that was enough for a lower court to throw this case out, and that has been enough for courts throughout the country throughout the last seven years to deny torture victims their day in court. And although I say this is a tremendous victory, and I want to qualify it in the sense, this isn't the end of the case. This is the beginning of the case. And our five torture victims in this case, who are standing there representing the hundreds of torture victims of the Bush regime, have now waited these many years just to get to the courthouse door, and now this case can begin and now their quest for justice can begin.

GG: Let's talk about where the case goes from here, because, and essentially this case was brought by five plaintiffs who were essentially transferred around the world as part of the CIA's rendition program, tortured brutally, and they're suing a subsidiary of Boeing that essentially helped the CIA, that was essentially the CIA's travel agent, that shuttled them around the world knowing that they'd be tortured. So let's talk about now where the case goes.

As is always true with civil liberties, there's lots of distortions about what the ACLU's position here is. The ACLU hasn't been arguing in this case that there's no such thing as a legitimate claim of secrecy or even that there's no such thing as the state's secrets privilege; instead, the ACLU's argument has been that the Bush and then the Obama administration sought to wildly distort that privilege and turn it into something that it never was intended to be. So describe what the court did today, and what will now happen as a result of the decision when it goes back to the district court.

BW: That's exactly right. We have never taken the position that there should be no state secrets privilege. The example that I like to give is that if Valerie Plame had been involved in the events of this litigation, we would not be able to use the discovery process to divulge her identity, or the identity of any other covert agent. And there may well be classified pieces of evidence that would be relevant to our case, that we won't be able to get because of a valid and legitimate invocation of the state secrets privilege. What we've argued, and what the court did today, is that this has always been an evidentiary privilege. What that means is that the government can protect its secrecy interest by explaining to the court exactly which evidence it believes is secret and can't be revealed.

What we had in the Bush administration and, as you said, what has been continued unfortunately by the Obama administration, is the use of this privilege not to block the disclosure of particular pieces of evidence, but to torpedo at the outset entire lawsuits alleging grave executive misconduct. The only thing we did in this lawsuit is file the complaint. Jeppesen, the defendant, had not even responded to the complaint. We had not asked the government for a single piece of evidence when the CIA barreled into court and insisted the entire case had to be thrown out.

And they didn't want this case thrown out because they were concerned about a piece of information getting revealed. The entire world knew about the rendition program, that our specific plaintiffs had been victims of that program, that Jeppesen had been involved in this program. The were worried about being held accountable in a federal court which might then lead to calls for prosecution, because if a federal court were to determine that the CIA violated some of the most fundamental legal rights people have, the right not to be detained arbitrarily, the right not to be disappeared, the right not to be tortured, then there would be calls for greater accountability. And this case has always been about the executive branch seeking immunity, not trying to protect classified information.

GG: Now, the court, in addition to ruling that the privilege couldn't be used in this extraordinarily broad way, to shield the government from all judicial review, also had some substantive and important things to say about how the district courts determine what is and is not secrecy in regard to whether or not merely classifying documents under FOIA standards or other types of government secrecy is sufficient. Describe what the district courts will have to do now if the Obama administration comes in and says this piece of evidence is too secret, you can't allow it, this fact is too secret, you can't allow it - what is the court now required to do in order to determine if that's true?

BW: Well, these cases have been proceeding under the extraordinary legal fiction - and I say legal fiction because the position of the executive branch has been:  it doesn't matter that the entire world knows that our plaintiffs were kidnapped and tortured by the CIA; it doesn't even matter that they have provided sworn affidavits describing in graphic detail how they were treated. Those facts can still be deemed state secrets by a court unless and until the United States itself confirmed them. And it's an extraordinary fiction. It does exist in other areas of the law where the government can refuse to confirm or deny, and information can remain classified, but this court said, let's use common sense here.

Specifically, some of our plaintiffs have in fact been involved in legal proceedings in foreign countries and have been compensated for what happened to them here. In no way are these allegations secret, and what the court said is, you can't come in here with a straight face and tell us that the plaintiff's testimony is a state secret. You can invoke this privilege with respect to evidence that's in your possession, but not with respect to facts that are out there in the world, which the court described as a sort of "Alice in Wonderland" argument by the government during our oral arguments.

GG: Now, last question, Ben. There was obviously a major controversy recently over what the Obama administration did in another ACLU case, which was brought under FOIA, where the ACLU was demanding the release of Bush-era memos. Of course the Obama administration agreed to release them as part of that lawsuit, and they were targeted with a lot of criticism, claiming they should have resisted, fought to the end of the lawsuit in order to prevent disclosure. When Obama announced he was disclosing those memos, he went out of his way to ensure the CIA and others that he would continue to, as he had done in the past, defend the secrecy powers of the government in court, and try and keep programs like this one, the rendition program, concealed from judicial review.

What is your expectation about the Obama DOJ will do in terms of seeking further appellate review, and a possible stay?

BW: Well, I'll tell you what my hope is. There are very able and intelligent lawyers in the Justice Department all the way up to the top. I have no doubt that when they read this opinion, they will know in their hearts and their minds that this court got it exactly right, on remand. Now, Obama can fulfill his promise to protect legitimate secrets by doing so in the district court. He can do it on an item-by-item basis as the court explains. He can ensure that whatever proceedings move forward in district court does not reveal genuine secrets.

If his promise to them that he was going to try and block any kind of any accountability of wrong-doing, well, that's a broader promise, and I think it's incumbent upon us to let the administration know how much of a betrayal we would deem it, if the Obama administration were to seek review, say, in the Supreme Court. It's one thing for the Obama administration to go into a federal court and not to renounce the brief that was written by the Bush administration; it would be profoundly different matter if the Obama administration were to send this matter to the Roberts court for resolution.

So I think that the Ninth Circuit did the Obama administration a big favor by pointing the way for legitimate secrets to be protected while allowing victims their day in court, and I think if the Obama administration wants to do something constructive in this area, it should support the legislation sponsored by senators Leahy and Specter, that would chart a more sane course for dealing with state secrets claims in the future.

GG: Legislation that, I might add, his own vice-president and secretary of state in the last session of Congress co-sponsored.

Well, this issue hasn't received as much attention as, say, the torture issues, but the issue of expanded, radical claims of government secrecy are as important to anyone who cares about civil liberties as any other issue, if not more important; the ability to shield conduct from public scrutiny, and especially from judicial review is really the linchpin of how the government abuses its power, and today's victory was truly extraordinary, and significant beyond what words can express. So, the jubilance that is evident in your voice is completely warranted, and congratulations again to the ACLU for this and to the plaintiffs, who will finally have their day in court, and we will certainly speak again, as there are more developments in this case.

BW: Thanks a lot, Glenn.

GG: Thanks.

[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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