State Secrets Privilege And Obama's Dilemma

Ben Wizner, the ACLU attorney who argued the Jeppesen case so far successfully, calls it "historic," and I think he is right. At the same time, as he points out it's not an end to anything. At most, it's the beginning -- the beginning of the civil lawsuit brought against Jeppesen by five men who were subjected to the "extraordinary rendition" and then tortured by foreign countries and Americans in Afghanistan. Jeppesen Dataplan allegedly helped to arrange the flights that transported these men to their torture countries. 

A bottom-line read of the decision: the government can assert the privilege for any piece of evidence in any case. It just can't assert the privilege as an immunity doctrine -- or a justiciability doctrine -- as a way to end the case before it begins. (There are some obvious exceptions that the case today doesn't touch -- like if a spy were to sue the CIA for non-payment. Can't do that.)

But it ensures that the SSP is mostly and primarily an evidentiary privilege -- that's what civil libertarians have long wanted to hear from a court -- and that's what the State Secrets Protection Act in Congress (the formerly bipartisan Specter-Leahy SSPA) would turn into law.

"The question here is not whether there are secrets associated with this case, but whether you can determine before the case has begun whether they are absolutely indispensable for the plaintiff to the prove the case or for the defense to defend it," Wizner said.

In a way, the ruling wasn't un-expected. The ninth circuit has been increasingly impatient with blanket assertions of the privilege even as they've been deferential to the government's concerns about protecting national security information.

So -- unless the administration appeals the case to the Supreme Court -- or unless the Ninth Circuit reverses itself en banc -- Jeppesen will be required to defend itself in court. Or -- maybe it won't. The government still has the authority to indemnify Jeppesen and settle the case privately. It can still argue -- and can still win -- that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now -- at least for now -- it has to argue that point. In the Ninth Circuit, the government can no longer assert the point.

Here's the big dilemma facing Obama's legal team right now: if they appeal this decision to the Supreme Court, they might win. But the left will ... well, as one prominent civil libertarian put it to me, "If you think that we were angry when they just stood my Mike Hayden's declaration in this case, how do you think we're going to respond if they toss this to the Roberts court."

Perhaps the administration will conclude that the release of the torture documents buys them some credibility on issues like these. Perhaps they will worry that the release of those documents will make the lower court judge more skeptical about government claims about public domain information that was once secret and is now no longer harmful.

For Wizner, who has watched as the government's assertion of the privilege denied justice for Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, or for whistleblower Sibel Edmonds, the decision today is a personal victory.