The State Secrets Privilege, the USA Patriot Act and War on Terrorism
The state secrets privilege (SSP) is a judiciary’s construct derived from common law that allows the US government not to disclose information ordered by the court in civil litigation, especially if such disclosure can harm the US national security. After the 9/11 incident, the Bush administration expanded the use of this privilege by dismissing cases and withholding evidence in a court hearing that challenges the government (Abramson & Godoy, 2006). However, this act threatens the legal challenges and judicial oversight of the branch of the executive by disregarding human rights in the name of fighting terrorism.
In the case of Mohamed versus Jeppesen Dataplan Inc., the Ninth Circuit dismissed complaints of five men who claimed to have been victims of the extraordinary rendition program of the US government. The program involved international torturing and kidnapping of people in remote facilities (Laureate Education, Inc., 2011). Instead of accepting the allegations as per the required procedure, the court dismissed the complaint based on the privilege of the state secret as it is a patriotic act (Abramson & Godoy, 2006). The essay opposes that courts should not dismiss charges based on the state secrets privilege, especially in cases such as the Jeppesen Dataplan where plaintiffs did not need discovery to make a clear case that alleges torts by contractors or the government.
There are a lot written regarding the state secrets privilege since the incident of 9/11; however, the Totten doctrine plays the role of changing the state secrets privilege to a principle that gives the government some immunity. The SSP wrongly decides cases as it overprotects the state secrecy and dismisses suits with prejudice, which should be refilled using relevant declassified secrets. The basis for dismissing lawsuits is unclear; for instance, the engagement condition implies that the doctrine should be employed by the government during times of war and in matters that affect the foreign relations or embarrass and compromise the government during public duties. Protecting the government from embarrassment is not a legitimate goal of hiding state secret that can affect the national security.
Additionally, the SSP doctrine is overbroad; thus, cannot have any role in dealing with cases like that of Jeppesen Dataplan, which plaintiffs had no contract with the US government. The case shows the tendency of the executive branch in overprotecting the government’s secrets and the willingness of the judiciary to concede to the discretion of the executive without any inquiry or a little skepticism (Telman, 2012). In litigation associated with the national security, courts are too willing to put the constitutional duty aside to favor the executive action. The en banc panel of the Ninth Circuit found ample precedent that supported the decision to dismiss Jeppesen’s claims, yet there was clear evidence of torture by the government. Therefore, the erroneous decision led to wrong turns that intensify the unilateral executive powers and diminishing the judiciary authority to check the exercise of such power.
The doctrine of state secret privilege is also used to permit courts to resolve claims that are against the government and their contractors. The courts fail to recognize that the state secrets privilege should not be employed to tort claims the same way as contracts claims. In the hearing of Mohamed v. Jeppesen Dataplan, the Ninth Circuit panel treated the real claims of the plaintiff as if the government and the program contractors were responsible for the extraordinary torture and rendition of the plaintiff (Laureate Education, Inc., 2011). The victim was not the contractor, yet the majority of the panel dismissed the suit based on the state secrets privilege.
The decision of the Ninth Circuit in Jeppesen Dataplan should show the US the absurdities and barbarity of the Totten doctrine and the state secrets privilege. After hearing the true allegations of the plaintiff that a government contractor kidnapped plaintiffs and delivered them for rendition and torture, the court still dismissed the claims without allowing the defendant to respond to the complaint, even when the plaintiff had attached ample evidence supporting the claims. Dismissal should not be used to defend torturous acts of patriotism; therefore, I disagree with the dismissal of such alleges that violate human rights by exposing people to torture.
Abramson, L., & Godoy, M. (2006, February 14). The Patriot Act: Key controversies. Retrieved
Laureate Education, Inc. (2011). Interactive Supreme Court case timeline: Mohamed v. Jeppesen
DataPlan, Inc. [Flash presentation]. Baltimore, MD: Author.
Telman, J. D. A. (2012). Intolerable Abuses: Rendition for Torture and the State Secrets
Privilege. Ala. L. Rev., 63, 429. Retrieved from http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1136&context=alaw_fac_pubs