JURIST Special Guest Columnist William Weaver of the University of Texas El Paso Political Science Department says that the lawsuit by five victims of extraordinary rendition against Boeing subsidiary Jeppesen Dataplan has given the federal judiciary another opportunity to consider its own endorsement of the state secrets privilege, under which the US government can prevent judicial scrutiny of patently illegal government policies and programs...
The only United States Supreme Court pronouncement on the question of forcible removal of persons to foreign jurisdictions outside of treaty and on presidential authority alone came in Valentine v. United States. In a unanimous opinion, Chief Justice Charles Evans Hughes found that, "[T]he power to provide for extradition . . . is not confided to the Executive in the absence of treaty or legislative provision." In Valentine, two United States citizens were accused of crimes in France and were arrested awaiting extradition by U.S. authorities. The crimes allegedly committed were extraditable offenses under a bi-lateral treaty between the United States and France, but the arrestees filed a habeas corpus action, "upon the ground that because the treaty excepted citizens of the United States, the President had no constitutional authority to surrender the respondents to the French Republic." The Court made no indication that non-U.S. citizens not subject to extradition by treaty would be accorded any less protection, and indeed stated that, "It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power." Congress has never authorized extraordinary rendition, and the weight of international law clearly forges against the practice
For most of our legal history, the presidential claim to unilateral power to undertake renditions outside of law was unthinkable. Abraham Lincoln ordered the first "extraordinary rendition" and it almost cost him the 1864 election. Even in that case, a corrupt Spanish official and slave trader was given to the Spanish courts in Cuba and not delivered for torture. It would be over 125 years before another president claimed such power. And the last word on the subject before the events of September 11th sparked broad use of this activity came in a 1979 Department of Justice Office of Legal Counsel opinion that the Shah of Iran could not be extradited to his home country, because "The President cannot order any person extradited unless a treaty or statute authorizes him to do so."
But the questionable legality of the extraordinary rendition program is protected from court scrutiny and public disclosure by the most powerful and vexing evidentiary privilege the executive branch possesses. The state secrets privilege is the legal equivalent of the Ring of Gyges; it simply makes potentially embarrassing cases and evidence of government criminality disappear. But as Plato noted with respect to Gyges, invisibility invites, nay entails, corruption and abuse of power. One case that is disappearing before our eyes is Mohamed et al. v. Jeppesen Dataplan, Inc., and as it fades from view so to does any evidence of the government's cooperation with private corporations to accomplish extraordinary renditions. In Jeppesen, five victims of extraordinary rendition filed suit against a Boeing subsidiary involved in operational planning of their transport to foreign venues. The government intervened and formally asserted the state secrets privilege to prevent discovery against Jeppesen and moved for dismissal. The great irony of the privilege, and one that is lost on the government, is that it is frequently employed to prevent the disclosure of information that is not and cannot be properly classified under statute or executive order. Jeppesen is an example of this enlarged use of the privilege.
If the recent past is any indication, the privilege will presumably be used in Jeppesen to not only prevent discovery but also to stop the plaintiffs from entering into evidence facts that arise from their own experiences and information readily found in the public domain. Indeed, in other cases the privilege has been used to vitiate plaintiffs' First Amendment right to testify and to prevent the introduction into evidence of material that has already been published and is admittedly not classifiable. The unvarnished truth is that the privilege is used by the Bush administration not so much to protect secrets as to prevent judicial scrutiny of patently illegal government policies and programs. The plaintiffs in Jeppesen have entered a world probably as psychologically disorienting as their secret kidnappings and captivity. For example, Milquetoast courts have in various cases agreed with executive branch assertion of the privilege that it would cause grave damage to the national security to:
- Reveal the existence of a car battery on a military base (Kasza v. Browner)
- Allow a deponent to provide her place and date of birth (Burnett v. Al Baraka)
- Allow into evidence documentary material that had already been widely published (Maxwell v. First National Bank)
- Reveal information in case files collected against a 12-year old boy (Patterson v. FBI)
But if the executive branch presses secrecy beyond propriety it is the courts who allow agency claims to succeed. Judges who in other contexts speak of accountability and oversight of administrative programs and action fall to their knees at the mention of "national security." The most recent example of judicial prostration syndrome came last week in Higazy v. Templeton, where a court agreed to take down a posted opinion at the behest of a U.S. Attorney for reasons of "national security" in order to redact a passage that recounted facts that had already been made public. The state secrets privilege is a self-inflicted wound; it is a judicial creation and it must be the judiciary that stanches its poisonous effects for our democratic traditions. The result in Jeppesen and other cases where the privilege is being considered will give us an indication of whether or not judges have decided to give up on law concerning anything claimed to be undertaken in the name of national security.
William Weaver is a political science professor at the University of Texas El Paso and the Interim Director of its Center for Law and Border Studies. He teaches mainly in the areas of judicial process, constitutional law, private law and public policy, and abuse of official power. He is the co-author (with Robert Pallitto) of Presidential Secrecy and the Law (Johns Hopkins University Press, 2007).