State Secrets Doctrine Gets a Win

The 9th Circuit Court of Appeals handed the Obama administration and its national security team another win by dismissing a lawsuit challenging the Central Intelligence Agency’s practice of extraordinary rendition.  If the decision stands it greatly advances a sweeping vision of executive secrecy power laid forth by the Bush administration and picked up by President Obama.  But the victory is not as one-sided for the Obama administration as some on the left claim, nor is it the justification of the use of extraordinary interrogation methods as some on the right might hope.

Extraordinary rendition is the practice of seizing terror suspects in one location and transferring them to other countries for imprisonment and interrogation.  The transfer locations are almost universally locations where interrogation rules allow for far greater usage of force, and in many cases, torture.

The plaintiffs in the case represent a broad cross-section of anti-terrorism police efforts.  The lead plaintiff in the case in Binyam Mohamed, an Ethiopian citizen and legal resident of the United Kingdom who was arrested in Pakistan.  Binyam Mohamed claims he was turned over the the C.I.A., flown to Morocco, and turned over to the Moroccan security service who held him for 18 months, subjecting him to such practices as beatings, sensory deprivation, and cutting his penis and various other body parts with a scalpel and then pouring stinging liquid on the wounds, all in efforts to gather intelligence information or confessions.

Other plaintiffs claim to have been tortured by US interrogators in the C.I.A’s “black site” prisons in Afghanistan or handed off to security forces in places like Jordan.  Some plaintiffs remain in foreign prisons while the ACLU argues this case on their behalf.

This case turned on the issue of whether or not the executive branch may invoke the “states secrets privilege” to quash an entire lawsuit (as it argued here), or whether the “states secrets privilege” allowed the executive to simply redact sensitive pieces of information from court filings.  In April 2009 a three-judge panel on the Ninth Circuit ruled that it was the narrower, redaction standard that applied and allowed the lawsuit to proceed.

But the Obama administration appealed that ruling to the full appellate court, arguing that even acknowledging the existence of the litigation put national security interests at risk and urged the Ninth Circuit to adopt the broadest possible vision of the states secret doctrine.  The full court agreed and ordered the lawsuit dismissed without even a trial that would be limited to already-public information.

While that may sound like a decisive victory, what happened in between the original dismissal and this most recent order is an excellent illustration of the evolution of security policy–even if some critics don’t believe it changed enough.

The ACLU originally filed this case in 2007 and in responding to the suit the Bush administration submitted classified declarations by C.I.A. director Michael Hayden arguing that it could not be asked to defend the suit because doing so would necessarily involve disclosing state secrets and place national security interests at risk.  The trial court agreed and dismissed the case.

In the interim President Obama was elected, and despite his campaign criticism of the broad sweep of his predecessor’s use of the state-secrets privilege, in February 2009, just a few short weeks after being sworn in, filed a brief in support of the Bush view of the case.

While the case was making its way through the appellate system the Obama administration issued a revised state-secrets privilege policy that, in many ways, differed significantly with the policy crafted by the Bush administration.  Among the most significant changes was an instruction to officials to avoid, whenever possible, invoking the privilege to shut down lawsuits.  The Obama administration policy also expressly forbids using the privilege to coverup any lawbreaking or to prevent embarrassment to the administration.  It’s sad to think that those obvious points of respect for the law would represent a significant policy departure from administration to administration, but indeed they do.

And, it was precisely those changes that seem to have made the difference in this latest round of decisions as one of the authoring judges, Judge Raymond Fisher concluded that the lawsuit represented a rare case in which the government’s need to protect state secrets trumped the plaintiff’s need to have his day in court. 

However, Judge Fisher urged the executive branch to grant reparations to victims of C.I.A. “misjudgments or mistakes” that violated human rights if the government records confirmed their accusations, despite the fact that their only true avenue for redress–the courts–had just been closed off to them.

The ACLU said it planned on appealing the decision, which would give the Roberts Court an opportunity to weigh in on the use of the state-secrets privilege, something the high court has not done in over 50 years.  So far the Roberts Court has handed the administration some significant losses in terms of the scope of executive authority, so an appeal means this issue is far from settled.

Photo courtesy of Marcin Wichary via Flickr


James P.
James P.7 years ago

Are the people on this thread for the US or rights of non-Americans trying to do harm to our country?

Hugh M.
Hugh M7 years ago

I think that the people of all nations with any pretence of democratic election need to demand a law outlawing any false statements made by candidates in the course of an election campaign. Without that there is no democracy. Let their seats automatically become vacant if they do not follow through on campaign promises without giving a reason to those who voted them in and gaining express permission from those voters.

Philippa P.
Philippa P7 years ago


C. G.
C. G7 years ago


Garret McCarty
Garret McCarty7 years ago


Scott Vonwolf
Scott haakon7 years ago

People like it or not we are in a state of war. We have enemies who want us dead or enslaved to a theocracy. There is enough justification. However crude methods of obtaining information are not reliable. The French 10th paras did have effective methodology. Now that we have almost 40 years of advancement surly there are better, faster more effective methods. Primitive just is liable to be a lie.

Fa'izah J. A.
Jauharah Andrews7 years ago

Extraordinary rendition, like it or not, is used against American citizens as well. Quite frankly I don't think it yields actual results, even if sometimes results are stumbled upon. Anything inhumane committed by anyone is just plain wrong I don't care who is doing it or who it is done to.

John C.
Past Member 7 years ago

Hey, I am against extraordinary rendition but as long as we can still do it, do you think we could render Tony Hayward?

Sherylee Harper
Sherylee Harper7 years ago

The kidnap and torture of foreign nationals by United States security forces is unconscionable!

Any action by the US or any other nation against a foreign national is an act of war. It is in direct conflict with the United States Constitution, Bill Of Rights and the United Nations Charter of Rights and Freedoms.

Should an individual be a terrorist suspect then the security forces of the suspect's nation should be intercepting the suspect and deal with them appropriately. It is in that nation's best interest to do so.

If security is the issue there are more nations who would rather be on the good guys list of the US and co-operate than not. Economic trade, loans, technology, weapons and information are a great carrot to dangle under the noses of politicians, police, military and security services around the world.

In order to stop terrorism there absolutely must be reciprocal information sharing across political, religious and party lines. There can be no renegade interdiction that interferes with the sovereignty of any country.

carole a.
.7 years ago

Interesting. Thank you.