Too Many Secrets

The Ninth Circuit Court of Appeals has rejected the Obama administration's "state secrets" legal claim in the Jeppsen case.

Via the blog Legal Pad: A three-member panel of the 9th circuit Court of Appeals ruled this morning on a request from the government that it dismiss the Jeppesen case, which focuses on the CIA's extraordinary rendition program.

From the decision:

Acceding to the government's request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered."

In other words, asking the court to dismiss the case at this point puts the cart before the horse. The state secrets claim "must be invoked during discovery or at trial," not at the pleadings stage." (court's itals)

The Jeppesen case is one of the three national security cases in which the Obama administration has invoked state secrets (the other two cases involve warrantless wiretapping). This despite the fact that, as a candidate, Obama criticized President Bush for too frequently invoking the privilege.

And hopefully the other two state secrets cases will get tossed out on their asses too. The legal arguments were specious when Bush made them, they are even more specious when Obama expanded upon them.

As expected, the Double G weighs in.

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.

Still a nation of laws, kids. Still a nation of laws.