Sunday, September 26, 2010

Mohamed v. Jeppensen Dataplan: Issues of Presidential Power and State Secrets

by M. Ulric Killion
Binyam Mohamed, an Ethiopian now in London, says he was arrested in Pakistan and handed to the C.I.A., which then passed him to the security service in Morocco, where he was tortured. Shaun Curry/Agence France-Presse — Getty Images.
On September 6, 2010, the New York Times reported that “by a 6-to-5 vote, the United States Court of Appeals for the Ninth Circuit dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the Central Intelligence Agency to transfer prisoners to other countries for imprisonment and interrogation (Charlie Savage, Court Dismisses a Case Asserting Torture by C.I.A., New York Times, September 6, 2010). 
Mohamed v. Jeppensen Dataplan
The New York Times article is referring to a case that is generally known as Mohamed v. Jeppensen Dataplan (08-15693-1.pdf). The case is an interesting study of the issues of torture and presidential powers, including executive secrecy powers. It is especially the section on “The State Secrets Doctrine” that is worth reading (Mohamed, at 13529). In the introduction to this section of the decision, the court writes:
The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely. See Totten v. United States, 92 U.S. 105, 107 (1876). The contemporary state secrets doctrine encompasses two applications of this principle. One completely bars adjudication of claims premised on state secrets (the “Totten bar”); the other is an evidentiary privilege (“the Reynolds privilege”) that excludes privileged evidence from the case and may result in dismissal of the claims.3 See United States v. Reynolds, 345 U.S. 1 (1953) (Mohamed, at 13529).
The court then goes on to more fully explore and distinguish (substantive and procedural) issues surrounding both the “Totten bar” and “the Reynolds privilege” (Mohamed, at 13530-13538). After an extensive analysis of the facts and applicable law, the court, when affirming the decision of the lower court (Mohamed, at 13556-13557), holds:
We, like the dissent, emphasize that it should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case. Nonetheless, there are such cases — not just those subject to Totten’s per se rule, but those where the mandate for dismissal is apparent even under the more searching examination required by Reynolds. This is one of those rare cases.
For all the reasons the dissent articulates — including the impact on human rights, the importance of constitutional protections and the constraints of a judge-made doctrine — we do not reach our decision lightly or without close and skeptical scrutiny of the record and the government’s case for secrecy and dismissal. We expect our decision today to inform district courts that Totten has its limits, that every effort should be made to parse claims to salvage a case like this using the Reynolds approach, that the standards for peremptory dismissal are very high and it is the district court’s role to use its fact-finding and other tools to full advantage before it concludes that the rare step of dismissal is justified. We also acknowledge that this case presents a painful conflict between human rights and national security. As judges, we have tried our best to evaluate the competing claims of plaintiffs and the government and resolve that conflict according to the principles governing the state secrets doctrine set forth by the United States Supreme Court.
[18] For the reasons stated, we hold that the government’s valid assertion of the state secrets privilege warrants dismissal of the litigation, and affirm the judgment of the district court.16 The government shall bear all parties’ costs on appeal.
Mohamed, Presidential Power and Secrecy 

More importantly, Mohamed v. Jeppensen Dataplan serves as a measure of these issues in the transition from the Bush administration to the Obama administration. For the Obama administration, a 6 to 5 vote represents a divided court, thus a victory for the Obama administration and its agenda to advance presidential powers and assertive counterterrorism policies (Savage, 2010). 

The decision also stands as a constant reminder of these issues in the context of the Bush administration. During a March 2010 interview with the BBC, Karl Rove, a former senior political adviser to President George W. Bush, said, “I’m proud that we used techniques that broke the will of these terrorists” (Terence Neilan, Rove Says He’s ‘Proud’ US Used Waterboarding, AOL news, March 12, 2010; Rove ‘proud’ of US waterboarding terror suspects, BBC, March 12, 2010). Rove was specifically speaking about the practice of waterboarding, which is an interrogation technique that he does not consider to be torture. 

On the issue of waterboarding we also witness a clear line of demarcation between policies of the Bush and Obama administrations. Contrary to Rove’s recent justifications for using this technique, many, including President Obama, consider the use of waterboarding as a violation of the terms of the Geneva Convention on the conduct of war. In January 2009, Obama, actually, banned the practice, while releasing documents that reveal the use of other techniques (e.g., systematic sleep deprivation) under the Bush administration (Neilan, 2010).

Rove’s justifications for using waterboarding also correspond with policies under the Bush Administration. In 2002, the sanctioning of this technique clearly appeared in a series of memos by White House lawyers. These memos subsequently became known as the “torture memos.”

In the immediate post-9/11 era, “Jay S. Bybee was head of the Justice Department’s Office of Legal Counsel and John C. Yoo was his deputy in 2002 when the CIA asked for a review of the legality of certain interrogation techniques for detainees” (Editorial, No Punishment for torture memos’ authors, but no exoneration, either, Washington Post, February 23, 2010). In a practical display of expanding presidential powers, Bybee and Woo “approved a roster of techniques that included waterboarding and prolonged sleep deprivation. They asserted that interrogators would be on solid legal ground unless they acted with ‘specific intent’ to inflict ‘severe pain,’ which they defined as pain equivalent to death, organ failure or serious impairment of bodily functions.’” 

As for what consequences ensued from the “torture memos”, the consequences were virtually none. As the title to a Washington Post editorial reads, “No Punishment for torture memos’ authors, but no exoneration, either.” Bruce Ackerman made a critical observation about this seeming “non” consequence of the actions of Bybee and Woo, and the “torture memos,” including the issue of expanding presidential power (Bruce Ackerman, How to keep future John Yoos under control,, February 23, 2010). As Ackerman (2010) observed,
During the long years that the Justice Department was investigating Jay S. Bybee and John C. Yoo, it was tempting to view the torture memos as if they were momentary aberrations in the life of the modern presidency. But in clearing the Bush administration lawyers who authored the memos of all charges of unprofessional conduct, the department invites future John Yoos to rubber-stamp future presidential abuses at moments of (real or imagined) crisis. The torture memos are an entirely predictable product of an institutional set-up that puts the meaning of national security law at the mercy of a politicized Office of Legal Counsel and a super-politicized legal staff in the White House. There is a compelling need to reform that structure.
Obama and Expanding Executive Power
Moreover, in the context of Obama and presidential powers, though the Obama administration distinguishes itself on interrogation techniques (i.e., waterboarding), Ackerman’s insightful observations might also hold true. The opinions on expanding presidential powers under the Obama administration are many and vary. For example, in 2008, Gene Healy of the Cato Institute observed a flip-flop by Obama on this issue (New President Won’t Tame Executive Power, Cato Institute: Commentary, October 14, 2008). Healy (2008) wrote,
Recently, Barack Obama has found his own convenient rationales for endorsing broad presidential powers in the area of surveillance. When he signed on to the surveillance bill Congress passed this summer, Sen. Obama broke an explicit campaign promise to filibuster any legislation that would grant immunity to FISA-flouting telecom companies. By voting for the bill, Obama helped legalize large swaths of a dragnet surveillance program he’d long claimed to oppose. Perhaps some were comforted by Obama’s “firm pledge that as president, I will carefully monitor the program.” But our constitutional structure envisions stronger checks than the supposed benevolence of our leaders.
Then there is the more recent article by Kenneth T. Walsh (Obama, Like Bush, Uses Crisis to Expand Presidential Power, U.S. News, March 16, 2009), which characterizes the Obama administration as creating a more muscular presidency through a methodical approach. In this context, Obama is allegedly using the global financial crisis as a vehicle to expand presidential powers. Walsh (2009) wrote,
It’s clear that Obama is intent on changing America’s course in a dramatic way, as Ronald Reagan did in 1981. But Obama, while he admires Reagan’s “transformational” approach, seeks to reverse much of what Reagan accomplished. “This is a guy who is defining a new way forward,” says Will Marshall, president of the centrist Progressive Policy Institute. “This is terra incognita. People aren’t used to seeing changes in government that are this dramatic.”
In a way, Obama is doing what George W. Bush did in the national security sphere, using a crisis to expand presidential authority. After the 9/11 terrorist attacks, Bush moved to increase and exert his war-making powers. Now, amid the recession and financial meltdown, Obama is moving to increase and exert his peacetime powers. The result in both cases has been a more muscular presidency.
Indeed, there appears to be a growing consensus that the Obama administration is intent on expanding presidential powers. In these respects, notwithstanding how expanding executive power translates into policy, the Obama presidency is hardly distinguishably from the Bush presidency in the power grab for more executive power.
It is also for these reasons that cases such as Mohamed v. Jeppensen Dataplan will become increasingly more important as the measure of the Obama administration and the evolution of executive powers and secrecy. All of which will eventually unfold as the Obama administration appears to have set itself on an inevitable collision course with the U.S. Supreme Court and lower courts in upcoming legal disputes that will test the limits of executive power. Mohamed is just a sampling of the cases to come.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.