The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

Attorneys Clive Stafford Smith and Ahmad Ghappour face six months in prison for writing to President Obama according to an article in SF Gate,

They represent Mohamed Binyam Mohamed who was renditioned and tortured while under the control of the CIA. Eventually he ended up at Guantanamo. He was released after he sued Jeppson Dataplan, a subsidiary of Boeing, that was involved in his extraordinary rendition. (He turned down an earlier release which came with the condition that he not talk about his imprisonment.

Smith and Ghappour have represented many prisoners housed at Guantanamo including Mohamed. They drafted a letter to Obama attempting to discover the extent of Mohamed’s torture while Mohamed was at Guantanamo. The law requires attorneys who represent clients at Guantanamo to obtain the approval of the Privilege Review Team. The Privilege Review Team is a secret body whose job is to approve communications between Guantanamo prisoners and their lawyers. Smith and Ghappour submitted their letter to the Privilege Review Team. They did not expect to have any problems since Obama, of course, has a complete security clearance. But when they got the letter back the complete body of the letter was redacted.

They sent the redacted letter, along with a cover letter to Obama. The next thing they know there is a warrant out for their arrest for violating the rules of the Privilege Review Team. They could receive six months in jail.

It seems to me at a minimum the charges against Smith And Ghappour violate Mohamed’s Sixth Amendment right to competent counsel and the rights of Smith and Ghappour under to First Amendment to freedom of speech and freedom to petition.

The case reminds me of that of Lynne Stewart, the New York lawyer who represented Omar Abdel Rahman, a blind Egyptian sheik who was convicted of conspiracy to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. She was convicted and sentenced to twenty-eight months for helping her incarcerated client convey a message to his followers. Like Smith and Ghappour her speech should be protected by the First and Sixth Amendments. It is currently up on appeal.

Both prosecutions are attempts to quiet lawyers who are raising serious issues which the government finds bothersome. The attack upon the right of counsel is an attack upon the Constitution for without the right of counsel to vigorously carry on the battle of their clients the constitutional rights are meaningless.

NSA wiretaps exceeded the law, according to New York times story. After 9/11 Congress gave the NSA enlarged power to wiretap individuals but the targets of the wiretaps had to be “reasonably believed” to be outside the United States. Apparently a significant number of people wiretapped under the law were in the United States.

To prosecute any of the NSA personnel it would have to be proved that they knew that it was not reasonable to believe that the target was in the United States. It may well have been done accidentally in which case they should not be prosecuted.

But don’t worry even if they knew the targets were in the United States they will not be prosecuted. Let’s look at the case of the CIA agents who tortured Abu Zubaydah and Khalid Sheikh Mohammed. The Justice Department released four memo detailing their torture. Among the approved techniques were waterboarding, placing them in a box with insects, sleep deprivation, the use of water hoses, holding back food, and throwing them against imaginary walls. (It should be noted that the government claims to no longer used these techniques.)

But according to a letters from President Obama and Attorney General Holder, not only will they not be prosecuted but if they are sued in this country or abroad the government will provide free lawyers and will cover any damages awarded. This is true despite the fact that according to Lucas Tanglen writing in Jurist points out that international law requires the United States to investigate and prosecute the imposition of torture. Perhaps this is why the United States needs to be a member of the International Criminal Court.

THE NSA agents have nothing to worry about.