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Emily Berman Headshot

Will Rendition Always Remain a State Secret?

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On President Obama's first day in office, he stated unequivocally that his administration was "committed to operating with an unprecedented level of openness in government," leaving behind the culture of secrecy surrounding the executive branch during the previous administration. One key brick in the government's wall of secrecy has been the state secrets privilege, which the executive has invoked to dismiss lawsuits alleging abuses committed under its national security policies, such as extraordinary rendition to torture. After the U.S. Supreme Court declined on Monday to hear a case challenging the government's use of the state secrets privilege in a rendition case, it is time for the president to live up to his promise.

In Mohamed et al. v. Jeppesen DataPlan, Inc., five men alleged that Jeppesen, a subsidiary of the Boeing Company, helped the CIA transfer them to other countries for detention, interrogation and torture. The government successfully argued that the very subject matter of its extraordinary rendition program is a state secret and therefore entirely off limits to the courts. When the lower courts dismissed their case on this basis, the plaintiffs appealed to the Supreme Court to reverse that decision -- an appeal that fell on deaf ears.

By refusing to hear the case on appeal, the Supreme Court leaves in place not only the lower court's decision in Jeppesen, but also several other federal court of appeals decisions that adopt a similar, disturbingly broad, interpretation of the government's right to invoke the state secrets privilege. By acquiescing to the government's overly liberal use of the privilege, these decisions scuttle any hope that the courts will provide either justice for victims of rendition, or accountability for the government officials who designed and carried out these programs.

But it doesn't have to be this way. In fact, shortly after President Obama took office, the Department of Justice reviewed its use of the state secrets privilege, and the Attorney General adopted a policy to bring increased oversight and accountability. Unfortunately, to date, the government has not indicated whether it has enforced this policy.

A key provision of that Justice Department policy, which it announced in September 2009, says that when DOJ invokes the state secrets privilege to prevent a lawsuit from proceeding, but the case 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."

The thorough investigation that could result from such a referral, along with a public report setting out the results -- though certainly no substitute for a plaintiff's day in court -- would bring much-needed accountability to executive branch officials. No longer would the veil of state secrets shield from public view possible violations of individual rights carried out in the name of national security. Moreover, uncovering government wrongdoing would provide plaintiffs, unjustly denied their day in court, an opportunity for at least some form of vindication -- a government report corroborating their complaints.

The Supreme Court's refusal to hear the Jeppesen case makes this review process all the more urgent. Indeed, in dismissing the case, the appeals court recognized that a denial of a judicial forum based on the state secrets doctrine not only "forecloses at least one set of judicial remedies," depriving plaintiffs the opportunity to prove their alleged mistreatment, but also "eliminates further judicial review . . . one important check on alleged abuse by government officials."

But we cannot know whether the Justice Department sees the urgency. Since December 15, 2010, the Brennan Center, joined by 25 other groups and individuals, has twice sent a letter to the Attorney General asking him why, given the credible allegations raised in Jeppesen and similar cases -- such as Arar v. Ashcroft and El-Masri v. Tenet -- no thorough Inspector General report on an investigation has been made public. So we are left in the dark with respect to whether the DOJ is even following its own policy.

The Justice Department's policy was not intended to stop the state secrets privilege from being invoked, nor should it. There are numerous instances when the government must invoke the privilege in order to protect our national security interests.

But once invoked, the current policy can ensure that undisclosed government policies receive the public scrutiny they deserve. The Justice Department's policy can only do so, however, if it is enforced. Mr. Attorney General, please enforce your policy.

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