Oral arguments available here (audio .wma).
Mohamed, and 4 other plaintiffs, are suing an airline for transporting him around the world, against his will, for the purpose of subjecting him to the torture of foreign governments. Apparently he has some pretty damning quotes which (if believed) make it as clear as day that the executives in the airline company knew what was going on and made the calculated choice to participate nonetheless. If that’s true, and barring any defenses they might raise, it sounds like they are pretty clearly liable to Mohamed for damages.
But then the government ‘intervened’ (unilaterally requested that it be made a defendant) and argued that, under the ill-defined ‘state secrets privilege,’ the case could not go forward because it would necessarily require testimony on a subject of state secrecy.
There are a lot of complicated arguments going on in this appeal. The lower court judge decided to throw the whole case out, and the plaintiffs are saying that given that there are 5 plaintiffs, each raising multiple theories of liability, the judge should have waited until each particular claim reached a point at which it could only be proven with secret documents, and then throw out just that claim (leaving the rest for another day). At the same time they are arguing that defining the category of facts and/or evidence (that and/or question is pretty important in this case) to include the very fact of the CIA’s extraordinary rendition program was wrong because, much less than a state secret, it’s not even a secret at all.
That’s all very well and good, and I have some pretty sting opinions about the propriety of what the lower court did, but the outrageous part of this oral argument came in an exchange between a judge on the court and the government’s lawyer, as they were trying to figure out the degree to which a past state secrets case applies to this one (at 39:08):
Lawyer: …for example in the Al Haramaine case, the plaintiffs there, very similar to the plaintiffs here, said ‘we know … we know through various means about the terrorist surveillence program. We … We’re not demanding at this point that information from the government, we have our own information–we have our own expert, we have a witness who was on the inside, so we know …’ This court held, nevertheless, that the case had to be dismissed because in order for them to attempt to demonstrate their standing would immediately run into [the] state secrets privilege, and so the fact that they had plaintiffs — their plaintiffs said we have experts, we have our own evidence, and we have evidence from the …um… disclosed by the the government, this court said the case had to be dismissed, so again, what I’m arguing for here
Court: Were you involved in Al Haramaine?
Lawyer: Yes your honor, yes I was one of the….
Court: well I was on the pannel.
Lawyer: Yes, yes you were.
Court: And you had access to the confidential information, correct?
Court: And so did I.
Court: And you know why it went back, and so do I.
Lawyer: Yes, yes, and its exactly the same here. Once you see the government’s brief and you see the classified declaration, …um… I suggest, your honor, that this will be exactly like Al Masarie and exactly like Al Haramine you will understand precisely, as Judge Wier did, why this case can’t be litigated…
The most significant check on the judiciary is the requirement that it’s reasoning is subject to public scrutiny. This decision by wink-and-nod is completely antithetical to justice, democracy, and the rule of law. In his closing argument the plaintiff’s attorney tried to address the question of that prior case, but was left to guess at what the court and the government were arguing about in the prior exchange(at 47:23):
Lawyer: With respect to Al Haramine, the two of you know thing about it that I will never know, but I do know this from the opinions: that in Al Haramine, the plaintiffs conceded at oral argument that they lacked standing without a document. The privilege was applied to a document, this is what we are asking, that usually doesn’t happen at the pleading stage, we want them to assert it over something specific, not over something vast … our clients don’t need any document to tell them what they know and what they’ve told you.
This isn’t a slippery slope argument. We have slid too far already. I will leave you with this from the closing argument of the plaintiffs attorney (at 47:57):
We’re also told that other branches are supposed to provide oversight, well when the former Secretary of State was in Europe and was being criticized about the rendition program, she said ‘when and if there are mistakes that need to be addressed we’ll deal with those in our own courts if necessary’ … So when the political branches are asked about it they refer it to the courts, when we bring it to the courts, we’re sent back to the political branches, and this is how impunity is established a government.