THE BEGINNING OF THE END FOR ABUSE OF "STATE SECRETS"?

Today a three-judge panel on the Ninth Circuit Court of Appeals reinstated the Mohamed v. Jeppesen Dataplan case, rejecting the Obama administration's use of the state-secrets doctrine to have it dismissed. The five plaintiffs claim to have been subject to extraordinary rendition to countries where they were tortured either in the custody of American or local authorities, and are suing Boeing subsidiary Jeppesen for having assisted in their rendition. The most publicly noted of the plaintiffs is Binyam Mohamed, who was alleged to have been participating in the dirty-bomb plot with Jose Padilla. Mohamed claims he was subject to torture in various countries where he had been transferred, including Morocco, where he claims interrogators sliced his genitals with a scalpel.

The panel sided with the plaintiffs because the state-secrets privilege “simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities." The ruling also said that "acceding to the government’s request would require us to ignore well-established principles of civil procedure." The case has been remanded back to district court where the government will have to make a case for why specific evidence should be kept secret during discovery.

The reason why this case is significant is that it appears to restrict the use of the state-secrets privilege to dismiss entire cases only if the plaintiff has a secret agreement with the government to withhold information, which obviously isn't the case here. Now the administration can appeal this decision, but if this ruling holds, what it essentially means is the end of the use of the states-secrets privilege to dismiss entire cases unless there is a prior agreement between the plaintiff and the government to keep that information secret. In other words, if Jeppesen were suing the government, the case could be dismissed. But otherwise, the use of the state-secrets privilege is restricted to withholding specific pieces of evidence, as it was originally intended. The administration won't be able to dismiss entire cases except within a certain narrow criteria. 

"[The Totten bar option*} would seem to be off the table except in a very limited set of circumstances," said Ken Gude, a human-rights expert at the Center for American Progress. "It's great news."

*Corrected. Totten bar refers to a previous court case cited to argue for the case's dismissal, the court rejected the government's argument.

-- A. Serwer