Back in April, five torture victims won a big victory when a three-judge panel of the Ninth Circuit court of appeals reinstated their lawsuit against a Boeing subsidiary for allegedly flying them to other countries to be tortured under the CIA’s extraordinary renditon program. The Obama administration—and before that, the Bush administration—had unsuccessfully pushed for the case to be rejected under the controversial “State Secrets” doctrine. And now the Obama administration has won a second chance to make that happen. On Tuesday, the full Ninth Circuit agreed to rehear the case, Mohamed v. Jeppesen Dataplan, and reconsider whether it should be thrown out after all.
The issue at stake in the appeal is whether the government can declare an entire area of its activity off-limits from judicial oversight because it would expose state secrets. The three-judge panel had argued that the courts are perfectly capable of treating such cases with discretion without throwing out the whole thing in advance. If the government could block Mohamed v. Jeppesen, the panel said, that would effectively “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law.”
The full Ninth Circuit could now reverse that ruling. But why is the Obama administration pushing to keep the rendition-to-torture program secret in the first place? After all, it says the most egregious parts of the program are no longer operative. One possible explanation could be that the administration is worried that exposure of the participating countries—many of which are presumably undemocratic—could make those governments vulnerable and less likely to cooperate with future US intelligence efforts. In other words, in order to continue gathering intelligence about terrorism without torturing people, the Obama administration may be more inclined to cover up the Bush administration’s torture program. This is speculation, of course, but it illustrates one of the many ways in which the Bush administration has put its successor in a real bind.
One final interesting detail: six of the Ninth Circuit’s 27 judges have recused themselves from the case—including Jay Bybee, who authored several of the Bush administration’s most controversial torture memos.