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State Secrets Privilege: Beware of Blunt Objects

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July 6, 2009

Last month, the Obama Justice Department filed a brief asking the 9th Circuit Court of Appeals for a full panel (or “en banc”) hearing of the ACLU’s extraordinary rendition case against Boeing subsidiary Jeppesen Dataplan. This filing was in response to the ACLU’s victory in April, when a three-judge panel of the appeals court reversed (PDF) a district court’s dismissal of the lawsuit after the government intervened and improperly asserted the “state secrets” privilege.

Today, we filed a brief opposing a rehearing of the case. In the brief, we argue:

[T]he government’s [assertion of the state secrets privilege] amounts to a demand that “the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.” The panel rightly rejected this limitless demand for immunity.

…If these plaintiffs are denied a day in court, it is difficult to imagine which torture victims will not be…

We think it’s about time that our plaintiffs, the victims of illegal kidnapping and torture, had their day in court. It’s also about time for the Obama administration to live up to its promises of transparency, and use the state secrets privilege with greater precision and discretion.

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