Ninth Circuit Ct. of Appeals strikes blow on “State Secrets” privilege

April 29, 2009

The Justice Department’s use of the so-called “state secrets” privilege. The once-rarely-used legal privilege was invoked repeatedly by the Bush administration to shut down civil lawsuits that alleged torture and other abuses of the law by U.S. intelligence agencies. This is a hot button issue for human rights and civil liberties groups.

On Tuesday, a three-judge panel at the 9th U.S. Court of Appeals in San Francisco voted unanimously to reject the Justice Department’s argument in a lawsuit in which the Dept. of Justice invoked the “state secrets” privilege.

In essence, the court ruled it’s not enough for the U.S. government to simply assert-”it’s classified, we can’t talk about it”—to get rid of a lawsuit alleging serious abuses by the intelligence community.

The arguments made by the government would “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law,” the court ruled.

Instead, the court said, lawsuits like the one against Jeppesen can proceed– with decisions on what does or does not constitute a legitimate “state secret” being made by trial judges on a case-by-case basis. “This is a significant victory for those who would like to use civil litigation” to pry loose government secrets about rendition, torture, and warrantless wiretapping,” said Robert Chesney, a University of Texas law professor who specializes in national security law.

“We’re reviewing the judges’ decision,” was all Tracy Schmaler, a Justice Department spokeswoman, would say about the Ninth Circuit ruling Tuesday. But the stakes on this one are high. And, just like the decision to release the interrogation memos, it could once again force Obama to settle a dispute among his top advisors.

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