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On The Record > Mohamed v. Jeppesen, Part II
Mohamed v. Jeppesen, Part II
By: Lily Moallem on June 9, 2011
In February of this year, On the Record posted a piece about Mohamed v. Jeppesen Data Plan, Inc., a case brought by five alleged victims of the CIA’s extraordinary rendition program seeking damages for torture and forced disappearance. After the Ninth Circuit sitting en banc affirmed the district court’s dismissal of the suit, the ACLU filed a petition for certiorari with the United States Supreme Court. On Monday, May 13th, the Supreme Court denied the ACLU’s petition for certiorari without comment, leaving unanswered myriad questions regarding the character and scope of the state secrets doctrine – a judicially created privilege recognizing that, in certain circumstances, national security may trump the interests of individual litigants.
Both the Bush and Obama administrations have increasingly invoked the state secrets doctrine to suppress lawsuits touching upon delicate issues of alleged civil and human rights violations by the U.S. government. In Jeppesen, lawyers for the plaintiffs argued that the state secrets doctrine serves as a disreputable means through which the federal government may avoid any judicial accountability for unlawful conduct. Three of the five plaintiffs have received compensatory payments from various European countries for their involvement in the U.S. extraordinary rendition program, a program the general existence of which the U.S. government does not deny. Yet the states secret doctrine has denied the plaintiffs not only compensatory payment but also acknowledgment of wrongdoing from the U.S. government.
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In our previous post we briefly discussed United States v. Reynolds, the case in which the Court officially recognized the state secrets doctrine. The facts and circumstances surrounding, Reynolds, however, lend credence to the argument that the doctrine is used not to protect national security but to protect the federal government from liability and accountability. In Reynolds, three civilian observers were killed when a military aircraft crashed during a flight test. Their widows brought an action against the government, requesting that the government produce a number of investigatory reports and statements. The Government filed an affidavit stating that the material could not be produced without “seriously hampering national security.” The Supreme Court agreed with this argument and dismissed the suit, which was later settled out of court.
In 2000, almost fifty years after the case was dismissed, the documents requested were made available online and what they showed was that the plane crashed because a fire started in an engine. Nothing in the documents suggested anything about the flight test, the aircraft or the crash was a matter of national security. Many commentators consider United States v. Reynolds (the case establishing the doctrine) a perfect example of how the government can and does misuse the state secrets doctrine.
By denying the petition for certiorari in Jeppesen the Court has signaled that it is unwilling to reconsider the state secrets doctrine. The end of the Jeppesen case shifts the matter into the political arena. Unless Congress chooses to act, the only check on the Executive’s power to invoke the state secrets doctrine will be the Executive itself – an unpromising solution considering that the Bush and Obama White Houses, two politically divergent administrations, have both invoked the doctrine at will. Congress has attempted to reform the doctrine in the past to no avail. It may now be time to reintroduce prior legislation and begin to clarify the state secrets doctrine going forward.
