Thursday, September 9, 2010

9th Circuit Rules Executive Secrecy Trumps Right to Day in Court

Once again, the infamous 9th Circuit Court of Appeals has thrown itself back into the spotlight of political debate with it's latest ruling in Mohamed v. Jeppesen Dataplan which is undoubtedly heading to the Supreme Court.  In a nutshell, this case deals with plaintiffs who were former CIA detainees who were allegedly tortured by various CIA operatives overseas.  Jeppesen Dataplan apparently is a subsidiary of Boeing and was responsible for the private jets that were used to transport these prisoners from country to country.  At the heart of this controversy was the following issue:  Does the States Secrecy doctrine of the Executive Branch of the Federal Government trump an individual's right to have his day in court?  According to the 9th Circuit:



This case requires us to address the difficult balance the
state secrets doctrine strikes between fundamental principles
of our liberty, including justice, transparency, accountability
and national security. Although as judges we strive to honor
all of these principles, there are times when exceptional circumstances
create an irreconcilable conflict between them.
On those rare occasions, we are bound to follow the Supreme
Court’s admonition that “even the most compelling necessity
cannot overcome the claim of privilege if the court is ultimately
satisfied that [state] secrets are at stake.” United States
v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation,
we reluctantly conclude this is such a case, and the plaintiffs’
action must be dismissed. Accordingly, we affirm the judgment
of the district court.
In other words, Feds win, individuals lose.  What I find interesting about this ruling, other than the fact that it comes from the 9th Circuit, is that it takes nearly the exact opposite position that we saw in U.S. v. Nixon, where the Supreme Court held that an individual's right to have his day in court, as guaranteed by the 6th Amendment, TRUMPS Executive Privilege - even if that privilege belonged to the President of the United States.

The reason why I find it interesting that the 9th Circuit decided this case is because the 9th Circuit Court of Appeals has a well-earned reputation as the "Kiss of Death" for any decision going up to the Supreme Court.  In other words, the majority of cases decided by the 9th Circuit are OVERTURNED by the Supreme Court once they are appealed.  So anybody celebrating the decision of this case...beware!


What are your thoughts on this case?
Should the Prisoners be able to sue the Federal Government for their detention?
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