by Peter A. Belmont / 2010-09-13
© 2010 Peter Belmont

RSS Recent Essays (All Topics)   •(12/23) How did we get to October 7th? •(11/23) Our Political Habits Are Ending The Human Race •(10/23) Sketch of Israel-Palestine History •(10/23) Whoever controls the discourse controls emotional reactions to reality •(08/23) Russia On Trial •(01/23) The Purpose of "Conservatism" •(10/22) The project of returning the earth to the cockroaches couldn't be in better hands! •(05/22) Abortion, The Constitution, And The Supreme Court •(03/22) The Problem of Climate Change Framing or Discourse or Understanding •(06/21) Israel-Palestine: If not apartheid, then what? The Ninth Circuit Court of Appeals decided on September 8, 2010, by a 6-to-5 vote, that a suit against an air carrier which alleges cooperation with the CIA during “extraordinary rendition” must be dismissed because the court surmises that the case could not be won without a demand for secret evidence which the court would be required to disallow. I surmise by a vote of 1-to-0 that this case should have been allowed to proceed.

In the case Mohamed, et al. v. Jeppesen DataPlan, Inc., (pdf webfile), the plaintiffs sought money damages against an aircraft company, Jeppeson Dataplan, Inc., for its alleged assistance of the CIA in “extraordinary rendition” of the plaintiffs in the course of which, as alleged, they were kidnapped, detained, and tortured.

The 9th Circuit Court of Appeals decided (Sept 8, 2010) by a vote of 6-5 that plaintiffs’ case should be thrown out under the doctrine of “state secrets”.

In the course of this opinion, apparently by way of giving early warning of a truly weird basis for deciding that Mohamed et al.’s litigation should be thrown out BEFORE the defendant, Jeppeson, had even ANSWERED, the court said (Jeppesen at 13532-13533)(pdf at 15-16):

[T]he state secrets doctrine encompasses a “privilege against revealing military [or state] secrets, a privilege which is well established in the law of evidence.” Reynolds, 345 U.S. at 6-7.5 A successful assertion of the privilege under Reynolds will remove the privileged evidence from the litigation. * * * [A] valid claim of privilege under Reynolds does not automatically require dismissal of the case. In some instances, however, the assertion of privilege will require dismissal because it will become apparent during the Reynolds analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.

[In Reynolds] [t]he Supreme Court reversed and sustained the government’s claim of privilege because “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.”

Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the [345 U.S. 1, 10] caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.

Of course, even with this information before him, the trial judge was in no position to decide that the report was privileged until there had been a formal claim of privilege. Thus it was entirely proper to rule initially that petitioner had shown probable cause for discovery of the documents. Thereafter, when the formal claim of privilege was filed by the Secretary of the Air Force, under [345 U.S. 1, 11] circumstances indicating a reasonable possibility that military secrets were involved, there was certainly a sufficient showing of privilege to cut off further demand for the documents on the showing of necessity for its compulsion that had then been made.

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