John Schwartz of the New York Times has written an interesting article about a lawsuit on the subject of rendition and torture (an issue that caused much angst among partisan Obama supporters earlier this week). The suit alleges that on behalf of the U.S. government, a Boeing subsidiary transported several individuals to nations where they were subsequently tortured. The trial court dismissed the case after the government asserted the "state secrets" privilege. The state secrets privilege shields from discovery any documents or other materials that contain sensitive information related to national security. Courts have broadly applied this doctrine in torture litigation and, according to the ACLU, this has resulted in the dismissal of each anti-torture lawsuit against the Bush administration.
The case is now on appeal, and oral arguments will take place next week. Many human rights activists are waiting to see whether the Obama administration will abandon or modify the state secrets argument. In their critiques of rendition, human rights groups have often condemned Bush's usage of the state secrets privilege as a convenient tool to mask deprivations of human rights and to evade judicial review. Attorney General Holder has said that he would review pending cases that assert the privilege, but it remains unclear how he will approach the subject in this particular case.
I really hate "guessing" an attorney's potential legal strategy (especially based on reading one newspaper article). But if the oral argument is slated for Monday, and the government has not yet indicated that it wants to reschedule the date of the hearing or otherwise demonstrated that it will shift gears and make a completely new argument, then I suspect that it will defend the judgment it has already won in the trial court. DOJ will probably argue that the court correctly applied doctrine related to the privilege. This would not dictate how the U.S. asserts the privilege in future cases, but it would deny these particular plaintiffs of the opportunity to build their case.
Ben Wizner, of the ACLU, would take a sharply different view a DOJ argument favoring dismissal:
If he repeats the Bush administration’s argument that this case must beWell, at least from the perspective of the ACLU, Monday could answer a lot of political and legal questions.
dismissed at the outset,” Mr.Wizner said, “then we’ll know that despite the
change of administration, the policy of the United States that torture victims
be shut out of the courtroom has continued.
For more on the state secrets privilege, see:
Constitutional Law Prof Blog
Reforming the State Secrets Privilege (written by my colleague Professor Amanda Frost and Justin Florence).
For articles on rendition, see:
Obama's "Interesting" Comments About Rendition
Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance
Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program