TRI In The News

Kiss the Constitution Goodbye

5/18/2011

TRI IN THE NEWS: KISS THE CONSTITUTION GOODBYE

From ScienceBlogs.com
Original article available here.

The Bush and Obama administrations have gotten exactly what they wanted with their many invocations of the State Secrets Privilege [SSP]. The Supreme Court has denied cert in the case of Mohamed v Jeppesen Dataplan, leaving in place the en banc ruling of the 9th Circuit Court of Appeals that endorsed the government's argument that any legal challenge to any executive branch action must be dismissed immediately once the government invokes the SSP.

This is the case involving Binyam Mohamed, who was captured and sent, through our extraordinary rendition program, to other nations where he was brutally tortured. Jeppesen Dataplan is a Boeing subsidiary hired by the CIA to provide transportation. The government was not a party to the case but intervened to argue that the case had to be dismissed because it involves state secrets.

The district court initially dismissed the case. A three judge panel of the 9th circuit then overturned that decision, ruling against the government and the abuse of the SSP. But in a rare en banc rehearing, an 11 judge panel overturned the original appellate panel by a 6-5 vote, upholding the broadest possible reading of the SSP. The Supreme Court has now let that ruling stand. The ACLU responds:

"With today's decision, the Supreme Court has refused once again to give justice to torture victims and to restore our nation's reputation as a guardian of human rights and the rule of law," said Ben Wizner, litigation director of the ACLU National Security Project, who argued the case before the appeals court. "To date, every victim of the Bush administration's torture regime has been denied his day in court. But while the torture architects and their enablers have escaped the judgment of the courts, they will not escape the judgment of history."

"Today's decision will not end the debate over the government's use of the 'state secrets' privilege to avoid judicial scrutiny for illegal actions carried out in the name of fighting terrorism," said Steven R. Shapiro, legal director of the ACLU. "In a nation committed to the rule of law, unlawful activity should be exposed, not hidden behind a 'state secrets' designation."

It has been more than 50 years since the Supreme Court has reviewed the use of the "state secrets" privilege. In recent years, the U.S. government has asserted state secrecy to justify the refusal to disclose information about its illegal wiretapping program, the use of torture and other breaches of domestic and international law.

"The government's continued assertion of 'state secrets' to avoid any judicial review of torture threatens the fundamental principle of separation of powers," said Steven Watt, staff attorney with the ACLU Human Rights Program. "It is disappointing that no court has fulfilled its critical constitutional function of ruling on the legality of the Bush administration's torture policies. The Supreme Court should have taken this case to affirm that victims of torture are entitled to a remedy."

Unfortunately, this understates the situation considerably. This is, for all practical purposes, the end of our constitutional system of government. The executive branch now has omnipotent power to violate statutory law, the constitution and our treaty obligations and no court may hear a case challenging those abuses of power the moment the government says that it involves state secrets.

By leaving this ruling in place, the Supreme Court has made it the highest precedent available for other courts to look at. Technically this ruling is only binding in the 9th circuit, but you can now expect every single legal challenge to the government's war on terror policies ever filed in any other district to be dismissed on the grounds that this ruling is the highest precedent on the matter.

The ultimate irony is that this ruling will undoubtedly be praised by nearly all conservative Republicans (with a few exceptions, like Bruce Fein and John Whitehead), the same ones who demand a return to the Constitution and claim to be for "smaller government." But if the constitution means anything at all, it must mean that the executive cannot have unlimited, unchallengeable power. And that is exactly what it has now as a result of this ruling.

We may well look back at May 16, 2011 as the day the Constitution gasped its last breath.