Post-game analysis of the Ninth Circuit's en banc decision in Mohamed v. Jeppessen Dataplan continues. I've had my say already, but do want to respond to the suggestion by a couple of widely-read commentators that the government asserted the privilege in bad faith in this instance (specifically, that the government did not assert the privilege to protect national security as claimed but, rather, did it simply to avoid liability at home and abroad).
Andrew Sullivan, linking to Scott Horton, writes that “the real reason the Obama administration went so far to deny any day in court for torture victims” in Jeppesen was to cover up evidence that that might be used to prosecute U.S. officials abroad. That is a serious charge, to say the least. It flies in the face of the Holder Justice Department’s assurance that it “will not defend an invocation of the privilege in order to (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” It also flies in the face of a Justice Department certification to the Ninth Circuit in Jeppesen, both in briefs and at oral argument, that officials at the “‘highest levels of the Department of Justice’” of the new administration had reviewed the assertion of privilege in this case and determined that it was appropriate under the newly announced policies.” It also flies in the face of the majority’s “independent conclusion, having reviewed the government’s public and classified declarations, that the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”
Horton asserts that the dissent took a different view, writing that "[t]hat posture is risible, and half of the court saw through it." But the dissent said nothing of this kind. Obviously the dissenting judges disagreed with the majority as to whether the privilege properly may be used at the pleading stage to cause dismissal of a suit. Nothing in the dissent suggests, however, that those judges discredited the government's asserted motivation in attempting to use the privilege in that manner. The main thrust of the dissent is captured in the following passage:
The majority’s analysis here is premature. This court should not determine that there is no feasible way to litigate Jeppesen’s liability without disclosing state secrets; such a determination is the district court’s to make once a responsive pleading has been filed, or discovery requests made. We should remand for the government to assert the privilege with respect to secret evidence, and for the district court to determine what evidence is privileged and whether any such evidence is indispensable either to Plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.
What to make of all this? It seems to me the national debate on this topic ought to focus on two questions. First, should there be an exception to the privilege that precludes the government from using it in cases alleging illegality? And second, should the privilege ever be available at the pleading stage in order to cause the dismissal of a suit at the threshold. These are difficult and pressing questions. I don't think we get close to solving them by suggesting that a wide array of senior Justice Department officials are engaged in a fraud on the court.