Jeppesen: A Cry for Congressional Help on State Secrets

Commentary

Jeppesen: A Cry for Congressional Help on State Secrets

September 30, 2010 10:00:46 am

Edited by:

JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England Law Boston say in the wake of the Ninth Circuit’s decision in Bynyam v. Jeppesen Dataplan that the time is right for Congress to codify a state secrets privilege that insures both accountability and the protection of legitimate national security interests….

Earlier this month, the United States Court of Appeals for the Ninth Circuit decided the case of Bynyam v. Jeppesen Dataplan. This case represents the first time a federal circuit court has weighed in on the Obama administration’s use of the state secrets privilege to seek dismissal of civil claims arising from allegations of physical and other abuse that occurred as part of the government’s extraordinary renditions program. When the Obama administration came into office, there was hope that the government would either stop or limit its reliance on the state secrets privilege to prevent such litigation, and that the government would be more forthcoming about its extraordinary renditions program.

The Obama administration made some early moves that hinted at a greater degree of openness, giving the Attorney General the sole authority to assert the state secrets privilege. By both raising the approval level and centralizing it in the office of the Attorney General, the administration rasied the expectation that the privilege would be asserted less often – indeed, only when absolutely necessary. Nonetheless, the Obama administration’s assertion of the privilege in Jeppesen looks much like the former Bush administration’s assertion of the privilege in numerous cases.

A sharply divided court of appeals in Jeppesen upheld the Obama administration’s invocation of the privilege. The administration asserted that any litigation of the issues raised in the claim at issue would lead to disclosures harmful to U.S. national security. The court’s conclusions are not surprising and are consistent with how courts generally treated this issue when the Bush administration made similar assertions.

The decision confirms that there exists an expansive state secrets privilege available to the executive, which can prevail over legitimate claims without any judicial oversight other than a review of the basis for the privilege itself. Though the Jeppesen court repeatedly emphasized the narrowness of the privilege, for the parties to the case the effect of the privilege’s asertion is vast, and, given the deference shown the President, it could affect the disposition of a wide array of cases. Of course, the court recognized that, while all privileges are contrary to basic rules of fairness and justice, still they can be justified if the good they serve is sufficiently important–and few would doubt the importance of national security.

The problem with the privilege is that we, the public, have no way of knowing what is really at stake. When a court accepts that the privilege applies, in whole or in part, it prevents cases from going forward and allows the conduct of government officials who were engaging in extraordinary rendition to remain clouded in mystery. The state secrets privilege can be invoked ex parte and in some cases without even disclosing the information at issue to the court. Because the privilege can be asserted by the executive at his discretion, we must place our trust in the courts to police its use. This trust of the courts may have no parallel; here, judges are truly our proxies in a way they are not in other instances.

But is a judge a reasonable proxy – will courts keep the executive appropriately accountable? History, experience and our constitutional structure tells us that our best proxies for checking and unjustified assertion of executive power are not judges but our elected representatives in Congress. The Jeppesen decision is blunt in its suggestions about how Congress can effectively check the President in respect to state secrets and provide a remedy to these plaintiffs. Indeed, the court suggested that the state secrets doctrine is judge-made law, which means Congress can act to amend and modify it to better ensure accountability and transparency while respecting the need to keep some matters secret.

Such Congressional action is appropriate. This is another area in which the Constitution contemplates a national security power shared between Congress and the President, and we must hope that Congress will act to keep the President in check. Members of Congress should recognize that, when the President prevails on a state secrets claim, Congress also is being denied an opportunity to understand and weigh in on important policy matters, some of which may be illegal, and the consequences of which Congress inevitably will have to address. Congress accordingly ought to have have an institutional interest in seeing that the President not use state secrets claims effectively to withhold information – and, indirectly, legitimate policymaking power – from Congress itself.

As Jeppesen demonstrates, the courts have essentially acknowledged that they, as an institution, are not ideally suited to work out the parameters of the state secrets privilege. They lack competence in the area of national security – or at least perceive that they lack competence. Yet the privilege concerns matters too central and too important to leave to executive discretion alone. The time is right for Congress to act – to codify a state secrets privilege that insures both accountability and the protection of legitimate national security interests.

Lawrence Friedman and Victor Hansen are Professors of Law at New England Law Boston.

Suggested citation: Lawrence Friedman, Victor Hansen, Jeppesen: A Cry for Congressional Help on State Secrets, JURIST – Forum, Sept. 30, 2010, http://jurist.org/forum/2010/09/jeppesen-a-cry-for-congressional-help-on-state-secrets.php.

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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.