The Ninth Circuit Upholds State Secrets - Denies Victims Day in Court

In a sharply divided decision on Wednesday in Mohamed v. Jeppesen Dataplan, the Ninth Circuit Court of Appeals voted 6-5 to dismiss the case, upholding an assertion of the state secrets privilege, first raised by the Bush Administration and now by the Obama Administration, that the need to protect state secrets trumps the ability of former prisoners to sue over alleged torture.

The ruling is another blow to accountability for torture that took place under the Bush Administration. According to the New York Times,

“The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan,
that the plaintiffs said had arranged the rendition flights that took them to
Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed,
had his bones broken in Morocco, where security agents also cut his skin with a
scalpel and poured a stinging liquid into his wounds.”

In the majority opinion, the 9th Circuit states that it “reluctantly” concludes that state secrets trump the “fundamental principles of our liberty, including justice, transparency, and accountability” in this case. Notably, the 9th Circuit’s decision held that the claims could not proceed “even assuming plaintiffs could establish their case solely through nonprivileged evidence.” The ACLU, which brought the case has vowed to appeal the decision to the Supreme Court, but the decision by the 9th Circuit is a serious blow.

Ben Wizner, the ACLU staff attorney who argued the case stated, "This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world."

Last fall, Alliance for Justice released the documentary, Tortured Law, to examine the role government lawyers played in authorizing torture. These lawyers have not been held accountable, and the Obama Administration is continuing policies that candidate Obama campaigned against in 2008.

There are still avenues for promoting transparency and accountability, as Ronald Goldfarb’s recent post on The Hill demonstrates, but we must hold Congress and this Administration to their promise of change.