CIA rendition: US court throws out torture case, citing state secrets
Appeals court judges sound apologetic tone in ruling; plaintiffs say they were tortured overseas in ‘extraordinary rendition' program.
Under the state secrets doctrine, courts have generally granted deference to executive branch claims that certain litigation may involve highly sensitive US government information which, if disclosed, would cause significant damage to national security.
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In a dissent joined by four other judges, Judge Michael Hawkins said the court was wrong to dismiss the entire lawsuit at such an early stage. He said the case should be remanded to a federal judge to determine to what extent actual evidence in the case might raise a threat of disclosing state secrets.
Hawkins acknowledged that the state secrets doctrine is an established precedent. But he said the privilege need not be so broadly enforced.
“The doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights of due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets,” he wrote.
The majority concluded its opinion with a quasi apology to the plaintiffs. “Our holding today is not intended to foreclose – or to prejudge – possible nonjudicial relief, should it be warranted for any of the plaintiffs,” Judge Fisher said.
Phi Beta Iota: This decision is a huge mistake, because it ensures the complete loss of legitimacy of the US legal system in the eyes of anyone with a brain. What CIA and its contractors can now expect is a form of “open season” on individuals who can be identified with CIA or the contracting firm in question. This may even be used by the Taliban as an accelerator for selective violence in the US and Europe. When “state secrecy” is used to abstain from holding the Executive and its contractors accountable for known crimes against humanity, the state is by virtue of that judgment, no longer legitimate. This is a matter that demands immediate correction for the sake of the Republic's honor.
Rodney McDaniel speaking at Harvard University:
Everybody who’s a real practitioner, and I’m sure you’re not all naïve in this regard, realizes that there are two uses to which security classification is put: the legitimate desire to protect secrets, and the protection of bureaucratic turf. As a practitioner of the real world, it’s about 90 bureaucratic turf; 10 legitimate protection of secrets as far as I am concerned.
Rodney McDaniel, then Executive Secretary of the National Security Council, to a Harvard University seminar, as cited in Thomas P. Croakley (ed), C3I: Issues of Command and Control (National Defense University, 1991). Page 68.