ACLU Appeals 9th Circuit Jeppesen Decision to SCOTUS

When the original three member panel opinion in Mohamed v. Jeppesen Dataplan, Inc. was issued by the 9th Circuit in late April of 2009, it was a breath of fresh air. Judge Michael Hawkins authored a thoughtful, well reasoned and heartening opinion placing appropriate curbs on the ability of the Executive Branch to silence wronged plaintiffs via the interjection of state secrets. Civil liberties scholars stood up and cheered. Unfortunately, it did not last and thanks to a very unfortunate panel assignment for the en banc review in the 9th, Hawkins was reversed and an erratic and contorted decision put in its stead by Judge Raymond Fisher handing the President and Executive Branch carte blanche to assert state secrets at will, effectively even to hide government illegality and misconduct. Civil liberties adherents jeered.

Now the ACLU, who represents the plaintiffs in Mohamed v. Jeppesen, has appealed from the 9th Circuit en banc decision by petitioning the Supreme Court for certiorari. The ACLU’s full petition is here. The ACLU press release reads, in pertinent part:

The American Civil Liberties Union late last night asked the U.S. Supreme Court to review a lower court decision dismissing its lawsuit against a Boeing subsidiary, Jeppesen DataPlan, Inc., for the company’s role in the Bush administration’s extraordinary rendition program. The ACLU and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. Although the federal government was not initially named in the lawsuit, it intervened for the sole purpose of arguing that the case should be dismissed based on the “state secrets” privilege.

“To date, not a single victim of the Bush administration’s torture program has had his day in a U.S. court,” said Ben Wizner, Litigation Director of the ACLU National Security Project. “The government has misused the ‘state secrets’ privilege to deny justice to torture victims and to shield their torturers from liability. The Supreme Court should reaffirm our nation’s historic commitment to human rights and the rule of law by allowing this case to go forward.”

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government could not invoke the state secrets privilege over the entire lawsuit, but, instead, could only invoke the privilege with respect to specific evidence. The Obama administration appealed that ruling, and in December the case was reargued in front of a panel of 11 Ninth Circuit judges. The appellate court upheld the dismissal of the case 6-5.

“The government’s continued assertion of ‘state secrets’ to avoid judicial scrutiny of torture threatens the fundamental principle of separation of powers,” said Steven Watt, staff attorney with the ACLU Human Rights Program. “No court has yet fulfilled its critical constitutional function of ruling on the legality of the Bush administration’s torture policies. The Supreme Court should take this case and affirm that victims of torture are entitled to a remedy.”

“The Supreme Court has not reviewed the government’s use of the ‘state secrets’ privilege in more than half a century. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability,” said Steven R. Shapiro, Legal Director of the ACLU. “As the executive branch asserts the ‘state secrets’ privilege more and more often, for more and more reasons, it is critical that the Court examine its use. Under a system predicated on respect for the rule of law, the government has no privilege to violate fundamental human rights and evade judicial review.”

The interesting question here is what does the ACLU think they can gain by approaching the Supremes? Elena Kagan will almost certainly recuse herself, so that leaves eight justices in play, the hard conservative bloc of Roberts, Alito, Thomas and Scalia, the liberal bloc of Ginsburg, Breyer and Sotomayor and Tony Kennedy. Only the three person liberal bloc would have much true interest in voting with the ACLU here; the best they can legitimately hope to do is pull Kennedy in, but that still leaves a 4-4 split affirming the horrid 9th Circuit en banc opinion by Fisher. The bottom line is, there is no path to a favorable merits opinion.

That said, why would the ACLU file the petition for certiorari? My guess is it is to keep the issue alive in the public conscience and to see if they can at least make some progress legally. While a 4-4 Supreme split would indeed leave the 9th en banc opinion intact, it would absolutely be a very strong message to the Executive Branch that there are real questions with the way they are using state secrets, and it would be a clear signal the issue would be quite ripe for another case to challenge. And the Obama Administration seems intent on asserting state secrets at every opportunity, so another case will come along.

Not to mention that the justices, especially Kennedy, are undoubtedly aware of the actions of the Brits, not only in their courts, but also in direct government compensation of Binyam Mohamed and another plaintiff for the very same conduct complained of in this case. It is impossible to deny what occurred now, only possible to cravenly hide from it; of course that is the option the Obama/Holder DOJ will pick every time. That, coupled with the contentious and very unusual close 6-5 nature of the 9th Circuit split just may give some credence to the instant ACLU effort in the Supreme Court.

There is one other concern that may be in play here. Generally a party has to exhaust every possible remedy and level of access in a nation’s court system before petitioning international tribunals for redress. The ACLU did exactly that in their Khaled El-Masri case, petitioning the Inter-American Commission on Human Rights (IACHR). So, I would hazard a guess insuring that all avenues are so exhausted in Mohamed/Jeppesen for this purpose as well.

It is a long war when it comes to protecting civil liberties and constitutional due process; clearly the ACLU is playing for the long run. Good for them.

31 replies
  1. timbo says:

    There is another reason, perhaps to do with US blatant violation of various aspects of the Geneva Treaties to which the US is bound by international and domestic law to uphold. Of course, that’s a long shot but at least it puts the lie to whatever the administration has been telling other signatory nations…

    • manys says:

      I’m no expert but the first thing to come to my mind was similar: just to get something down on paper.

  2. john in sacramento says:

    This is kinda like that scene in National Treasure where Reilly knows the story about daylight savings time that Ben doesn’t. First time ever that I know the answer to a legal question that bmaz doesn’t ;-)

    ACLU-NC Executive Director Abdi Soltani (at the 13:14 minute mark):

    We’re likely to appeal this to the U.S. Supreme Court. Because it’s our view that, even if we don’t win the case, and have the opportunity to even proceed with a trial. It’s important to be on the record that we pushed as hard as we could, and as high as we could to make sure that these victims of torture had their day in court

    This was at our local ACLU Chapter’s annual meeting in Sept

    PS A pretty novel concept huh? Doing the right thing because it’s the right thing to do (Yes, I am a card carrying member)

    • john in sacramento says:

      Oh, the video can get a little shaky. The person taping it didn’t have a tripod or anything, so he had to balance it on his knee while sitting on the floor

      But still, I’m very, very appreciative that it was even taped at all

    • bmaz says:

      Well, yes, but quite frankly, it has to be more than that on something like this because as much as you want to “be on the record” and “have the day in court” and all that nice sounding stuff, you also are VERY cognizant of not making bad law worse, permanently nationwide in SCOTUS when it is localized to the 9th currently, if there is nothing to gain. So, I can pretty much guarantee you it is not just the lofty platitudes the local ACLU guy related.

  3. Kelly Canfield says:

    sorry for the OT, but there is some amazing TV on Maddow right now, if you care a thing about LGBT rights.

    Rachel’s interviewing Bahati about the Kill The Gays Bill. Chilling.

    • eCAHNomics says:

      Talking past each other. Rachel (channeling what I would do) is asking for evidence, asshole guest is saying he has it, she lets him get away with it. Interesting, but mostly a waste of time, except to preach to the choir how much the opposition are jerks.

  4. fatster says:


    House on verge of banning Gitmo detainees from US soil

    “The provision in the legislation would prohibit the administration from spending any money to move the detainees to U.S. soil. It was tucked in legislation to fund the U.S. government’s operations through the end of the fiscal 2011 year, which ends September 30, 2011.

    . . .

    “The verdict involving Ahmed Khalfan Ghailani drew stinging criticism from Republicans who warned that traditional U.S. criminal courts were ill-equipped to handle such cases and that terrorism suspects should face special military commissions.”


    • bobschacht says:

      “The verdict involving Ahmed Khalfan Ghailani drew stinging criticism from Republicans who warned that traditional U.S. criminal courts were ill-equipped to handle such cases and that terrorism suspects should face special military commissions.”

      Why do Republicans hate the Constitution?

      Bob in AZ

    • klynn says:

      “The verdict involving Ahmed Khalfan Ghailani drew stinging criticism from Republicans who warned that traditional U.S. criminal courts were ill-equipped to handle such cases and that terrorism suspects should face special military commissions.”

      My bold.

      The GOP need to list specific reasons as to why they are making such a generalization about the US criminal courts.

      Besides, I cannot find any movement by the GOP in making this same point when Timothy McVey was tried in criminal court. Is the simple difference the word international?

      • jpe12 says:

        The difference is presumably in the way intelligence is gathered. McVeigh was captured via traditional gumshoe methods, while international terrorism involves broader networks of intelligence that could be subject to exposure in a courtroom.

        You really should’ve been able to able to figure that out yourself.

  5. Margaret says:

    …she lets him get away with it

    We must not have watched the same interview because in the one I saw, she came back to it over and over and called it a sham, a lie, propaganda, a fantasy and several other things and provided citation. At the end he said he would put up the evidence on his website and she again made clear the she believed he didn’t have any.

        • eCAHNomics says:

          As I said, she let him get away with it. Waste of time. Think perhaps she could have concluded the interview with my fave, which I have never seen a real person use on the TeeVee machine: “I’ll note for the record that you did not answer the question.”

          Weak as that is, it’s stronger than anything I’ve ever observed.

          • Margaret says:

            Again, I don’t understand what you expect her to do. “She let him get away with it”? Was she supposed to scream at him? End the interview? Threaten him? WTF was she supposed to do so he wouldn’t “get away with it”? And she did note that, though not in those exact words, it was noted. Several times.

  6. TheMaven says:

    One thing to keep in mind is that it’s far from certain that SCOTUS will even take up the case, especially if the justices feel that the most likely outcome would be a 4-4 split. With Kagan on the sidelines, it’s not clear that there would be four other justices who would necessarily vote to grant the petition here.

    And although the petition cites to “confusion” among lower courts regarding the application of the state secrets privilege, there doesn’t appear to be a circuit split in existence, nor has the Court previously implied that it would like an opportunity to address the issue. In fact, they declined to do so in the ACLU v. NSA case as well as the suits brought by Khalid El-Masri and Maher Arar. So this may indeed merely be a pro forma exercise by the ACLU.

  7. Sebastos says:

    While I admire the efforts of the ACLU to get anything done in this unpromising environment, keep in mind that US constitutional case law is the repository of some of the most spectacular instances of intellectual dishonesty in the history of the human species. I read the full slip opinion of Bush v. Gore without benefit of antiemetics, and I would be prepared to add any one of the majority justices to my list of professional liars. This kind of thing goes way back: consider Lochner v. New York, 198 U.S. 45 (1905), another charming 5-4 decision, which overturned a state law limiting the working hours of bakers to no more than ten hours in a day and sixty hours in a week. In his dissenting opinion, Justice Holmes had to remind the majority that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” (the notorious bible of Social Darwinism, popular at the time). There’s also Korematsu, Plessy v. Ferguson, Dred Scott, and so forth.

    Have fun, ACLU.

  8. bluewombat says:

    the liberal bloc of Ginsburg, Breyer and Sotomayor and Tony Kennedy

    Corporate lawyer Anthony Kennedy, the swing vote in stealing the 2000 Presidential election, is a liberal? Really? I must be Che Guevara…

    • bmaz says:

      No, the intent of that was the three liberals and then Kennedy as the only potential unattached vote that could possibly be in play; Kennedy is, obviously, not a liberal or in any “liberal bloc”.

  9. DWBartoo says:

    Thank you, bmaz.

    Good on the ACLU.

    It is a long and exhausting war.

    But it is one that must be engaged … again … and again.

    How easily so many forget … or, perhaps, they never knew or cared to know.

    This is not some esoteric intellectual word-gaming, this is something a public would do very well to inform itself about … as the indifference or deliberate ignorance of a population are most necessary to the forces of a power which seeks total control of society while insisting, as only criminals and tyrants do, upon doing so in total secrecy.


  10. nonpartisanliberal says:

    Quit fooling yourself. The idea that this is a nation of laws and a constitutional, democratic republic are antiquated. We live in a fascist security state now. Neither the kangaroo courts nor pointless elections will save you now.

  11. Mary says:

    EPU’d – but the exhaustion of appeals also ends the fiction that the there are US avenues and opens up the extra-territorial issue some. Not that anything much will come of that, but at least it would make for some continuing thorns in the sides of torturers. Nothing like freezing a man to death or kidnapping children or reshaping a whole nation so that it accepts depravity with a shrug – but you take what you get. Sometimes it’s a thorn of crowns and some redemption – – apparently now it’s only a thorn in a random side here and there.

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