Intolerable Abuses: Rendition for Torture and the State Secrets Privilege
92 Pages Posted: 6 Mar 2011 Last revised: 5 May 2011
Date Written: March 3, 2011
In Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit dismissed a complaint brought by five men claiming to have been victims of the U.S. government’s extraordinary rendition program. The court dismissed the complaint before discovery had begun based on the state secrets privilege and the Totten doctrine. While much has been written on the state secrets privilege since 9/11, this Article focuses on the role of the Totten doctrine in transforming the state secrets privilege into something like a government immunity doctrine. The Article first argues that Totten was wrongly decided because it is overprotective of state secrecy and requires dismissal with prejudice of suits that would more appropriately be dismissed without prejudice, subject to re-filing when the relevant secrets are declassified. The Article next contends that Totten is a very narrow doctrine that cannot and should not have any role in informing cases such as Jeppesen Dataplan in which plaintiffs did not contract with the government. In addition, the Article explores seven ways in which lower court decisions have all tended to make it easier for the government to assert the state secrets privilege, while the lack of penalties for overly aggressive assertion of the privilege results in intolerable abuses.
Courts encourage executive abuses of the privilege through their passivity. Congress has repeatedly empowered courts to make decisions that protect government secrecy while facilitating limited access to secret information when necessary in the interests of justice and open government. In some cases, the government’s inability to defend itself may necessitate the socialization of the costs associated with national security secrets, but that result is preferable to forcing plaintiffs to bear all the costs of government secrecy.
Keywords: State Secrets Privilege, Contracts, CIPA, FOIA, FISA, Government Contracting, Totten, Extraordinary Rendition, Torture, Immunity
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