Terrorism Law Update: Jeppesen, Al-Haramin, And State Secrets

The ACLU filed its argument opposing an en banc hearing for the major state secrets privilege case, Mohamed et. al. v. Jeppesen DataPlan.  In May, the Justice Department urged the 9th Circuit to overturn the decision of three of its members that the case, which involves Jeppessen's role in the government's extraordinary rendition program, should proceed. The Bush administration and the Obama administration have argued that it cannot, for reasons of national security. The Obama administration's position is at odds with the President's official position on the state secrets privilege -- he does not believe it ought to be used to throw out cases before they begin -- and the administration fears a Supreme Court battle. 
The ACLU represents several detainees who allege that Jeppessen's flight planning arm contributed gainfully to their torture at the hands of foreign governments. If the government is successful, these plaintiffs will have no way to argue for redress in civil court, and the government will successfully argued that the branch of government responsible for the alleged wrongdoing has the right to determine whether evidence can be produced against it.  "The law does not sanction, let alone require, such a categorical grant of immunity," the ACLU lawyers contend. "Contrary to the assertions of the former CIA Director, whose declaration remains the operative invocation of the state secrets privilege in this case, permitting torture victims to seek justice in our courts will not endanger the nation. Indeed, the current administration's repudiation of the policy of extraordinary rendition renders the assertions of that declaration obsolete," they write.

On Thursday, attorneys representing the Al-Haramain charity will present their full arguments against the legality of the Bush-era Terrorist Surveillance Program to a federal judge in San Francisco. The government wants this case quashed, too. The judge wants it to proceed, and he's growing impatient with the government's continual assertion of the state secrets privilege. He's asked the plaintiffs to prepare a motion for summary judgment, though he hasn't penalized the government for its inaction. 

And a Justice Department spokesman says that the Attorney General's office review of the State Secrets Privilege doctrine will be released within a few weeks.
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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