SCOTUS: Govt Can Use State Secrets to Hide Crimes

SCOTUS just declined to take the Jeppesen Dataplan suit.

The high court rejected an appeal by five men who claimed that U.S. operatives—with support from Jeppesen Dataplan Inc., a Boeing unit—abducted them and sent them to other countries where they were tortured. They alleged Jeppesen provided critical flight planning and logistical support to the CIA’s “extraordinary rendition” program. The men were seeking unspecified monetary damages from the company.

This effectively means that men like Binyam Mohamed, who the Brits have admitted was tortured after being rendered, cannot sue for redress. And the ruling is particularly egregious since a Jeppesen executive admitted that his company was flying rendition flights.

In effect, SCOTUS’ decision not to take this case leaves in place state secrets precedent that allows the government to commit grave crimes, but hide behind state secrets.

Update: The Brennan Center and a bunch of other crazy hippies who believe in rule of law wrote a letter in response to SCOTUS’ decision to DOJ reminding them that, per their purported state secrets policy, credible allegations of wrong-doing must be referred to the Inspectors General of the relevant agencies for investigation.

In December of last year, the undersigned groups and individuals wrote to inquire whether the Department of Justice had referred to the Inspectors General (IG) of the Defense Department, the Central Intelligence Agency, the Department of Justice, or any other department or agency allegations arising out of the government’s extraordinary rendition program detailed in several recently dismissed civil complaints—a referral required by the Department of Justice’s policy on the use of the state secrets privilege issued on September 23, 2009 (hereinafter “the September 23 policy”).  As we have received no response to that letter, and today’s Supreme Court decision makes it highly unlikely that any examination of the issue will take place in the courts, we submit this open letter posing the same question.

If the required referrals have not yet been made, we respectfully request that you now ask the relevant IGs to undertake a joint investigation into the Executive’s use of extraordinary rendition and to issue a public report—with as little redaction as possible—of their findings.  Should the IG investigation uncover government wrongdoing, we also urge that plaintiffs’ legitimate claims be acknowledged and redressed—that the government vindicate their claims by recognizing the ordeals they endured and denouncing any wrongdoing; by issuing a public apology; by providing monetary compensation; and through any other means that justice requires.

[snip]

Consequently, we believe that a thorough investigation—conducted by all relevant Inspectors General with full access to all relevant witnesses, documents, tapes, photographs, and other material, and culminating in a public report—would serve the interests of justice, and would accord with the September 23 policy’s aspiration to “provide greater accountability and reliability in the invocation of the state secrets privilege.” Moreover, where government wrongdoing is uncovered, providing plaintiffs appropriate redress could at least grant some small measure of recompense for the denial of these plaintiffs’ day in court.

This is me officially holding my breath for the Obama Administration to do what they promised on this front.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. Jeff Kaye says:

    If anyone ever thought the Supreme Court wasn’t anything more than a rubber stamp for the executive branch as a whole, this decision should teach otherwise.

    Meanwhile, the Brennan Center for Justice has just released a letter to Holder written last December. Signed by BCJ, CCR, BORDC, Amnesty, ACLU of No. Carolina, PHR, The Constitution Project, No More Guantanamos, and other organizations, it begged Holder, Associate Atty General Thomas J. Perrelli, and Assistant Atty General (Civil Div.) Tony West to adhere to a promise the Obama administration made in the early days of its regime, viz. “when the state secrets privilege prevents a lawsuit from proceeding, but the complaint raises credible allegations of government wrongdoing, ‘the Department [of Justice] will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency.'”

    Well, DoJ has snubbed the signatories of the letter, not dignifying it with any response at all. And this after the 25 groups involved asked “respectfully” these things from the government. (Here’s a link to the Dec. 15, 2010 letter, PDF.)

    I suppose these agencies have to be polite to DoJ, but I don’t. Frankly, they are a bunch of assholes, whose primary job appears to be (after prosecuting the poor and the defenseless) to defend corporations, shield torturers, and use their spy departments to intrude on Americans’ right to dissent (when they are not playing clean teams for torturers in the CIA or foreign police/security agencies).

    They deserve no respect, and by their actions trample on the rule of law. I know I will continue to follow the law, but how long will the population as a whole do so, knowing they are only saps for the big boys to laugh at?

    • emptywheel says:

      Didn’t see your comment–but I had updated the post w/the Brennan letter.

      As I noted, I’m seriously holding my breath for DOJ to do what they said they would and sic some IGs on investigating rendition.

      • Jeff Kaye says:

        Heh. Guess we were looking at the same material around the same time. I’m glad you added it to the story.

        One request: please do not hold your breath, as I would hate to see your face turn blue and pass out, because DoJ is going to do NOTHING about this. In fact, they have shown their utter contempt by not even making note of the Dec. 2010 letter written by the same groups writing to Holder again today.

        I’ll never forget, and never tire of relating what Al McCoy told me when I met him at a Berkeley talk some years ago, i.e., that when you look into the whole torture mess, it only gets darker and darker, and that what you think is already bad, well, get ready, because it’s a whole lot worse.

  2. MadDog says:

    And now that SCOTUS has officially punted on the State Secrets Privilege to hide torture and extraordinary rendition, the Torture Apologists are being thrown a party – via the WSJ:

    AEI Sponsors Another Round in the Torture Debate Today

    …Today at the American Enterprise Institute for Public Policy Research, former Attorney General Michael Mukasey, John Rizzo, former Central Intelligence Agency general counsel, John Yoo, former lawyer at the Justice Department’s Office of Legal Counsel, and Elisa Massimino, president of Human Rights First, will spar over the torture issue…

    If you didn’t get an invite, you can illegally wiretap listen in here.

  3. tjbs says:

    What else can we expect from three known traitors and their, balls and strike type of calls, two accomplices.

    The evil will continue to grow kidnapping, torture, murder, assassination it’s what our forefathers died for.

  4. DWBartoo says:

    Did anyone expect that this SCOTUS would challenge Executive supremacy?

    Surely, no one is much surprised?

    Disgusted, frustrated, and even convinced that the current (and future)judicial “branch” will bend, easily, as does the legislative “branch” to the will and whim of the executive “branch”, which now stands tall and vigorous over the other two “branches”, is a reasonable response to this “news”.

    The possibility that human beings like Binyan Mohamed would be given or permitted, in the United States of America, today, the “standing” to challenge what has, clearly and irrefutably, been done to them, has realistically, ALWAYS been in substantial doubt. To think or imagine otherwise is not merely unrealistic, it is pathetically divorced from any rational grasp of current “reality”.

    The further fact is that the main and primary function of this secrecy is to hide FROM American citizens the truth of all that is being done in their names.

    If Americans are content to be ignorant of behavior and consequences quite apparent to other human beings, especially those been “ministered to”, then those comfortable and complacent Americans will be able to honestly say, “But, we just didn’t know.”

    When asked how they could NOT know … or suspect … or even wonder, the good Americans can always say, with a straight and honest face, “It wasn’t our job to wonder what, how, or why … our job was to consume, to buy, buy, buy …”

    And such “buying” does not merely refer to spending money at the mall.

    DW

    • tjbs says:

      DW could we shorten the “executive branch” to the “unitary” less keystrokes and means the same thing.

      • DWBartoo says:

        I’m willing to shorten it to “nit” between “u” and “ary”, tbs.

        The question is how much more lousy is the damned “thing” going to become?

        The nit-nuts have naughty nasties still hidden, past, present, and potential, which we cannot even imagine.

        And, as I said to phred, if “the people” of America timidly dare do nothing, then other human beings will have to help us … one way or another.

        I suspeculate that the “interesting” times in which we’re living are going to become increasingly so … very much so. And rather rapidly, after a certain “point” …

        DW

  5. phred says:

    EW, just a quick drive-by to ask…

    Won’t this decision make it easier to pursue justice abroad? We’ve been hiding behind excuses of pursuing torture complaints here at home (albeit strictly as a foot-dragging maneuver). Now that SCOTUS has signed on to the criminal conduct of the executive branch, the argument that we are pursuing credible investigations with real accountability evaporates.

    I never had any hope of real justice here, but I have held out hope that other countries would rise to the occasion. Perhaps SCOTUS just gave them a hand.

    • DWBartoo says:

      The hope, phred, that other nations will arise to confront America in court is preferable to the increasing concern that other nations are so afraid of America and its willingness to destroy that the ultimate confrontation, when it comes, as it surely shall, will be of a very different and much more devastating nature.

      DW

  6. EternalVigilance says:

    The “law” is simply another tool by which the powerful enforce their control of the less powerful. It’s just disembodied violence, the mental equivalent of a state’s armies.

    We’re simply seeing the truth of that violence in action.

  7. JohnLopresti says:

    FYI, Syracuse publishes the J of Natl Sec L+Policy; check out a volume 4 article there about laws of war limits dod jurisdiction, which examines the reconstituted Mca gtmo courts. I think the political interfaces of what rendition enabled has a long history not too much available in published literature; but some of the other linkages of its outcomes will remain approachable thru other avenues of legal examination such as the ones suggested in the referenced article from December 2010, which begins in chronological fashion at ex parte Quirin (1942).

  8. nonpartisanliberal says:

    I am not a right-winger, have never belonged to a militia and I don’t own a gun, but this ruling does provide the militia people with more justification for their paranoia. Are they really crazy or are the rest of us in denial?

    Is there even a line anymore? What’s the criteria?

  9. Adam503 says:

    Has the Supreme Court just declared there is no rule of law in the United States?

    If SCOTUS declares itself and the USA a lawless body, does that give American citizens “lawless” options as well?

    • DWBartoo says:

      The rule of law became brain-dead in 2000, with Bush v. Gore, the precedent that wasn’t …

      The last almost-eleven years, have been devoted to getting the rule of law off life-support and stealing everything not welded to the floor.

      America’s Executive is, now, simply declared by SCOTUS to be free to rule the world and kill anyone, anywhere, any time, as he or she sees fit keeping secret such things as seem to the all-wise and all-knowing Executive to not deserve to be seen in the light of any day.

      And Adam503, NOBODY has ANY genuine business asking ANY questions.

      THAT is a certainty.

      Polish up your patriotism, ours must glow with a deep and lustrous parade-shine.

      LOOKING FORWARD, that is the least of what will be demanded of us all.

      Remember, “These are the times, which try men’s souls” … as we were, once before, Paine-fully reminded.

      DW

  10. JamesJoyce says:

    The “decimation” of constitutional check and balances. Where the right’s of the individual and by default the governed, becomes subordinate to the whimsical nature of politicians, government(s) and the corporations who buy one, then control the other. Again, Pontius Pilate comes to mind. Who would expect anything different from a court which judged and declared, “…people as property?” Vomit!

  11. bluewombat says:

    At the risk of asking a dumb question, what can we as citizen activists do to get this noxious state-secrets doctrine repealed or pared back?

    • emptywheel says:

      Nadler and Leahy were pressing to pass a state secrets law some years back. But Obama’s EO on it–the one he’s going to ignore by not referring this to IGs–sort of preempted that, at least as far as Leahy’s concerned.

      • bluewombat says:

        Well, it would be nice if Leahy dusted it off. SCOTUS decisions like this sap the lifeblood of what’s left of our democracy.

        And thank you for the kind words :)

  12. lordgoogoo says:

    When a case is rejected for consideration, such as in this case, is there a record of how the individual judges voted as to wheter or not to consider? If so, what is the split, if there is one?

  13. rugger9 says:

    I would think so, especially since the Geneva Conventions on Torture would require it, even if the “home state” declines to prosecute. It’s why former Bush officials had to cancel road trips earlier this year. They are only a change of government away (i.e. Spain) from being hauled in. The other yokels who need to mind their travel is Jeppesen and their supervision [all execs on up] since they have already admitted publicly to being accessories to known torture.

    Let’s not forget these are Bushies protecting their own arses here, if the trial was allowed to go forward all kinds of unfortunate details would emerge hammering the GOP in particular. Also some of the like-minded governments, like Poland where Obama’s going to visit.

  14. reddog says:

    Anyone could have predicted this. Joseph Heller did in “Catch-22” (I refer you all to Chapter 39. Here is the summary, but it really doesn’t do this chapter justice). The older I get the more sure I become that Heller wrote the penulitmate novel about America. Ironically, our only hope lies in foreign governments that may actually have a moral compass.

    http://www.pinkmonkey.com/booknotes/monkeynotes/pmCatch2249.asp

  15. DWBartoo says:

    For just how long IS you prepared to Holder your breath, EW?

    Now, that be concern as well as curiosity, you realize?

    Take a very, very deeeeeeeeeeeeeeeep breath before you begin in earnest, please.

    DW

  16. michaelfishman says:

    Would somebody please answer lordgoogoo’s question at #27? Who among “the four” voted to deny cert, or abstained?

    • Kelly Canfield says:

      As far as I know, 4 Justices can get the case onto the cert list. They hear about 100 out of about 10,000 cases who petition for cert, and most of the justices leave a lot of the work to their clerks in the cert pool.

      Chief Justice makes the recommendation of what to hear, with the addition of votes of 4 to put something into the pool.

      So, who knows? They don’t vote on all 10,000 petitions.

      • michaelfishman says:

        Thank you for that. But in this case, cert was denied, so they voted. Lordgoogoo asked how the vote went, and I haven’t been able to find out by googling it.

      • DWBartoo says:

        I suspeculate that the Kagan “tidbit” is ALL that likely shall ever, officially, be known.

        The die, clearly, is cast: it’s all-seeing snake-eye promises … “looking forward” with State Secrets full speed ahead … that there will be no accountability, ever (barring a fundamental “change” in the current “philosophy of governance” among the power elite in the United States), regarding each, every, and ANY “front” or criminal act which the “nit” claims that ANY revelations about or “around” would jeopardize “national security.”

        Perhaps it is time to consider what realistically might encourage such fundamental change, harpie?

        Will it be (most likely, or least likely) from “within” or “without”?

        Doubtless, there will be some, perhaps many, who shall argue that no change is possible, in the near term, and, in the long term … well, you know what they say about that?

        DW

        • harpie says:

          After so many years of “elaborate mockery”[h/t mzchief!], I honestly don’t know what it would take to facilitate a change. Seemingly forever ago, I would often end comments by saying “are we outraged, yet?”, but at some point, just stopped asking…

      • Mary says:

        Of course she did – that’s what she was put on there for – and a “recusal” doesn’t dip her pen in the ink either, so she never even has to own what she and Obama set up.

        • DWBartoo says:

          The true “symmetry” of bloody evil, Mary, yet methinks that as skdadl said quite some time ago, “They are too clever by half …”

          The “Offical History” will merely note the great contributions to justice and the rule of law, in total support of the Constitution, which Obama and Kagan so courageously made and then go on to rave about the calm steadindess of their hands on the reins, reassuring, encouraging, and kind … having ridden so wisely in on the most sacred of democratic principles.

          However, the people’s history will long remember differently … and honestly … the reign of terror … and what was done and undone … for such base and selfish purpose.

          DW

  17. harpie says:

    REFORMING THE STATE SECRETS PRIVILEGE [pdf]; The Constitution Project; 5/31/07

    Conclusion. For the reasons outlined above, application of the “state secrets doctrine” should be strictly limited. We urge that Congress enact legislation to clarify the narrow scope of this doctrine and safeguard the interests of private parties. In addition, courts should carefully assess any executive claims of state secrets, and treat this doctrine as a qualified privilege, not an absolute one. Such reforms are critical to ensure the independence of our judiciary and to provide a necessary check on executive power.

    • NMvoiceofreason says:

      That was in an Amicus brief for granting cert. You can expect it is explicitely rejected.

      • harpie says:

        Well, that particular paragraph was from the Report, but The Consitution Project also wrote an amicus [pdf] brief in the case in January 2011, saying “the writ of certiorari should be granted.” Isn’t that what was rejected with the decision today to not take the case? [I get confused.]

    • DWBartoo says:

      Are you speaking of the “American Dream” or some other spendthrift, thread-bare “notions”, mzchief?

      Regardless, you’ve caught the gist and “essence” of most everything which surrounds and permeates this no longer civil “society” … democracy, the rule of law, and our legal system, our “Free Enterprise = Freedom” capitalistic economic system, our educational system, our “health” system, our electoral system, and several sacred cows, the military among them …

      In all, a precise, beautifully concise, all-encompassing, and undeniably true, as well as elegantly spare and fully complete sentence, in a multitude of ways and meanings.

      Truly well-turned, mzchief.

      DW