Obama DOJ Advocates Immunity From Civil Torture Litigation

(A discouraging portent from the Obama administration. – promoted by Magnifico)

I listened to the oral arguments of the Jeppesen civil lawsuit seeking damages from an aircraft company for its role in the rendition & torture of 5 suspected terrorists. It was shocking to hear that Obama wants to continue Bush’s policy to elevate state secrets from an evidentiary privilege to blanket immunity. Under this view, the subject matter of a lawsuit is grounds for dismissal even if the plaintiff does not need any classified evidence to prove its case. This is not the standard created by the US Supreme Court, the law governing criminal litigation or the proposed law for civil litigation. The judges also seemed surprised:  2 of the 3 judges asked the DOJ lawyer if he was “representing” the “thoroughly vetted” positions of the Obama administration.  Some Democrats reacted by introducing a bill today to require judges to determine “whether a blanket claim of secrecy by the government is necessary to protect national security.”  (h/t Meteor Blades)

(1)  The standard governing the state secrets privilege.

The state secrets privilege originated in the US Supreme Court decision of United States v. Reynolds. In Reynolds, widows sued the US, claiming that negligence caused the crash of a military aircraft that was on a test flight of secret electronic equipment. The widows needed the Air Force’s accident investigation report as evidence for their case, but an Air Force affidavit claimed disclosure would harm national security.

The Reynolds opinion held that courts should decide whether the government’s invocation of privilege is valid by  reviewing the classified information rather than relying upon the “caprice of executive officers.” The Court warned that judicial deference to the government’s  “bare assertion” of the privilege could result in “intolerable abuses”. If the privilege is valid, then the government should provide plaintiff with alternative measures to replace the secret evidence eliminated from the case.

This standard was adopted by a 1980 law that provides courts with clear guidelines on how to handle secret evidence in criminal cases. Last year, Sen. Kennedy proposed a similar law to govern secret evidence in civil litigation.

However, the Reynolds court did not follow its own standard, but instead deferred to the government’s affidavit. This was unfortunate because decades later when the Air Force report was declassified it was publicly revealed that the report did not contain military secrets but rather evidence of the government’s negligence to maintain the aircraft in airworthy condition.

More importantly, the failure of the Court to use its own standard left the lower courts without clear guidelines. Bush took advantage of this void by building up case precedent that state secrets can be used as both a blanket immunity  based upon the subject matter of the lawsuit and a privilege based on discrete evidence.

Thus, the issue before the 9th Circuit is narrow: Should a lawsuit be dismissed by a “blanket of state secrets” at the pleading stage or be permitted to proceed to trial and IF the plaintiffs seek secret evidence, then let the trial judge determine whether the privilege applies to the case.

(2)  The DOJ argued that state secrets applies to facts as well as evidence, which then elevates what was an evidentiary privilege to a blanket secrecy immunity.

The court asked Letter several times whether Reynolds applied to evidence or facts. Letter purported to not see a distinction, preferring to conflate facts and evidence for a very good reason.  The DOJ wants to continue the Bush doctrine of using an evidentiary privilege as immunity.

The court focused on this distinction between evidence and fact, indicating that at least one or two of the judges may interpret Reynolds as limited to evidence. This interpretation is supported by Reynolds, which involved the plaintiffs’ request for a governmental investigative report as evidence for their negligence claim.

One judge gave an example: What if the plaintiffs have a witness to testify about the extraordinary methods of interrogation (torture) used in this case because he personally tortured the plaintiff in Egypt with electrodes. The judge continued that this constitutes evidence that is not classified even though the CIA director says that the fact that this even happened is classified.

The DOJ lawyer maintained that the privilege covered both evidence and facts.  Letter argued that plaintiffs must prove that Jeppesen was complicit in working with the CIA in a foreign clandestine intelligence operation.  However, the CIA Director will “neither confirm nor deny” that there is “any relationship” between Jeppesen and the US.  Therefore, the very subject matter of whether Jeppesen was complicit in a foreign clandestine intelligence operation cannot be litigated.

One judge stated that the government would not be in the position of confirming, denying or even acknowledging any relationship between Jeppesen and the US if it had remained out of the case.  Letter responded that if the courts issue an opinion that a fact is true based on independent evidence, this judicial opinion confirming or denying the secret facts can itself create problems. Thus, when the executive branch refuses to confirm, deny, or even acknowledge a fact, then the judicial branch is similarly bound to remain silent.

This is when a second judge asked again whether it was Obama’s position that when the CIA Director says a fact is subject to state secret privilege, then there is no way that it can be proven independent of any government evidence.  The DOJ lawyer said yes, it could not be litigated.

The effect of extending the privilege to facts as well as evidence is to preclude entire lawsuits, such as this one,  that don’t even need government evidence to prove their case.

(3)  The DOJ argued that the court’s role was limited to deference to executive branch affidavits.

The DOJ attorney argued from both sides of his mouth on the court’s role. Throughout oral argument, he stated that the public did not understand that this was not a sham proceeding controlled by executive agencies but that the court must determine whether the privilege applied to the case. He repeatedly referred to the “independent Article III judiciary” to convey the message that the executive branch did not control whether the privilege was accepted by the court. However, he also stated that the court must accord “utmost deference to the executive branch.”

The outcome is certain if the court defers to the CIA. The motion to dismiss is based entirely on two declarations by Bush’s CIA Director Michael Hayden, one of which is classified. In the public declaration, Hayden stated the Bush policy that the “CIA’s detention and interrogation program remains one of our most vital tools in the war against the terrorists.”  Hayden further declared that confirming “details of that program would degrade the effectiveness of the United States intelligence gathering activities by providing terrorists information about interrogation methods that would assist their interrogation resistance programs.” This is the interrogation and detention program that Obama “effectively ended” by Executive Order. However, both AG Holder and Elena Kagan, who will represent the Obama administration before the Supreme Court, agree that the “law of war allows the government to capture and hold alleged terrorists without charges.” (h/t Meteor Blade)

(4)  The DOJ appears to claim that civil litigation is off the table in terms of holding Bush officials accountable for crimes.

One judge presented a hypothetical that awful things could be happening in Missouri that would then never be disclosed due to state secrets creating this black hole where litigation was banned despite our courts and Constitution. The DOJ lawyer rejected this hypothetical, saying there were plenty of alternatives to litigation, such as Congressional oversight, foreign relations, inspector general investigations and reports. A “senior administration official” pushed this same spin yesterday of alternative avenues to hold Bush officials accountable, such as a “truth commission idea, a DOJ truth commission, or even investigations run by the Justice Department.”

Before posting, I did a quick google to see if there was more information.  Both the New York Times and Glen Greenwald agree with me: This is “continuity of the wrong kind.”