Challenging the government’s cover-all reasoning of State Secrets, a new attempt was made to show that while in some cases state secrets are important to shield, in should not become a “get out of jail free” card for the government if they themselves do in fact violate laws.
From the introduction to the brief filed in the 9th circuit (link below):
This appeal squarely raises the question whether the government may invoke a common-law evidentiary privilege in order to extinguish at the outset any possibility of redress not only for these plaintiffs, but for any victims of the government’s unlawful torture policies. Indeed, the sum and substance of the United States’ position in this litigation is that the government may engage in kidnapping and torture, declare those activities “state secrets,” and by virtue of that designation alone avoid any judicial inquiry into conduct that even the government purports to condemn as unlawful in all circumstances. As the panel recognized, the government’s “sweeping” rationale in support of dismissing this action “has no logical limit” and “would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad.”
Mohamed v. Jeppesen DataPlan, Inc., No. 08-15693, slip op. 4937 (9th Cir. Apr. 28, 2009). The law does not sanction, let alone require, such a categorical grant of immunity.
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While the original intentions of such broad actions like torture and detainment for eternity without a trial stemmed from fear, we cannot let fear be the guiding principal on which our laws are based. While many claim that since some of those appealing their imprisonment are guilty, and deserve no protections, they do not seem to understand. The purpose of these suits is not merely to protect people we believe to be guilty (and there is little doubt that many of the accused are probably guilty, but it would be nice to at least PRETEND to be a nation of laws), the government cannot be given free reign to do as it wishes without regard to laws or we will all suffer.
PDF of file briefing to the 9th circuit
H/T to SCOTUSBLOG
