Obama wins one for the Presidency on the state-secrets privilege
Another week, another legal vindication for the Bush, er, the Obama Administration’s war on terror. On Wednesday, the Ninth Circuit Court of Appeals cited the executive branch’s state-secrecy privilege to dismiss an ACLU attempt to challenge the legality of sending terror suspects from the U.S. to other countries. Our friends on the left are now going nuts about “torture flights,” but we’ll take this decision as evidence that this Administration has its grown-up moments.
The case involves flight-logistics company Jeppesen DataPlan Inc., a Boeing subsidiary the ACLU accuses of being involved in arranging flights to move five terrorist suspects to prisons in Morocco, Egypt and elsewhere so they could be held for questioning by the CIA and local authorities. The five suspects—three of whom are now free—all claim they were tortured, while the ACLU claims Jeppesen personnel knew (or should have known) what was in store for them when they arranged the flights.
How much of that is true remains to be seen; the court made no determinations of fact. What is clear is that the ACLU and the rest of the anti-antiterror left have targeted Jeppesen and companies such as AT&T as part of a legal intimidation strategy aimed at preventing them from cooperating with the government in the war on terror. In the contest between considerations of patriotic duty and legal liability, the ACLU reasons that the latter will usually win out.
That may even be true. But the ACLU’s litigation also required the disclosure of secret information, which former CIA Director Michael Hayden described in a public declaration as having the potential “to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States.”
Gen. Hayden also provided the court with a classified declaration, laying out the damage the lawsuit could do to national security. In its ruling, the court noted that it was persuaded that “the government is not invoking the [state secrets] privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”
The court’s decision this week invoked Supreme Court precedents going back to the 1870s, when it ruled in the Totten case that “public policy forbids the maintenance of any suit . . . the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” A larger and more recent body of case law fleshes out the breadth of the state-secrets privilege.
But perhaps the more noteworthy aspect of this case is that it was dismissed—albeit by a 6-5 vote—by the most liberal Circuit Court in the country, with Judge Raymond Fisher, a Bill Clinton appointee, writing for the majority. That gives the ACLU little hope that it can get the decision overturned should the Supreme Court decide to hear it.
Nor will the ACLU find much solace in the Obama Administration, which has largely preserved the antiterror legal regime established by its predecessor even as it has tinkered with some of the language. Ask terror imam Anwar al-Awlaki, the detainees at Bagram air base whose habeas corpus petitions have been denied, or the enemy combatants still in Guantanamo. Their justified predicaments are testimony to Barack Obama’s education as Commander in Chief.
Editorial, Wall Street Journal