A court has rejected the Obama administration’s claim of the state secret privilege.
Via the blog Legal Pad: A three-member panel of the 9th circuit Court of Appeals ruled this morning on a request from the government that it dismiss the Jeppesen case, which focuses on the CIA’s extraordinary rendition program.
From the decision:
Acceding to the government’s request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered.”
In other words, asking the court to dismiss the case at this point puts the cart before the horse. The state secrets claim “must be invoked during discovery or at trial,” not at the pleadings stage.” (court’s itals)
The Jeppesen case is one of the three national security cases in which the Obama administration has invoked state secrets (the other two cases involve warrantless wiretapping). This despite the fact that, as a candidate, Obama criticized President Bush for too frequently invoking the privilege.
The effect of this decision on the other two cases remains unclear.
Late update: The Constitution Project, a nonprofit group that supports checks on the power of the executive branch, applauds the decision. From their press release:
“The Ninth Circuit’s decision recognizes that the state secrets privilege is not an immunity doctrine that can enable the Executive Branch to shield its conduct from any judicial review,” said Constitution Project Senior Counsel Sharon Bradford Franklin. “We are thrilled that the decision preserves the role of the courts as an independent check on the Executive Branch’s conduct.”