Precious Secrets

As you may have read elsewhere, the Ninth Circuit Court of Appeals allowed the state secret privilege to block a lawsuit (PDF) by five men who were victims of our "extraordinary rendition" program. I'm not an attorney, but I read the opinion. Much of it deals with the legal technicalities of precedent. The part that irks me, me however, are the available alternatives for the plaintiffs.

Our holding today is not intended to foreclose—or to prejudge—possible nonjudicial relief, should it be warranted for any of the plaintiffs. Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs in this action, our decision forecloses at least one set of judicial remedies, and deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors. Other remedies may partially mitigate these concerns, however, although we recognize each of these options brings with it its own set of concerns and uncertainties.

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “The power of the Congress to conduct investigations is inherent in the legislative process.”

Third, Congress also has the power to enact private bills. Because as a general matter the federal courts are better equipped to handle claims Congress can refer the case to the Court of Federal Claims to make a recommendation before deciding whether to enact a private bill, although Congress alone will make the ultimate decision. When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.”

To summarize, the government can recognize it committed an injustice and find a way to remedy that even if it takes 50+ years to do so. Or Congress can investigate, enact a private bill or enact some sort of remedial legislation.

As the opinion states, Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. The judges recognize the ramifications of allowing the state secrets privilege to prevent the case from going forward and provide straws for the plaintiffs to grasp. But since the plaintiffs are not American citizens, who is going to step up to the plate for them? I'm reminded of that scene from Dumb and Dumber where the woman tells Jim Carrey's character that he has a million-to-one-chance of them two becoming a couple.

"So you're saying there's still a chance," he says.