18 May 2009 Outrage of the Day: 9th Circuit Harms U.S. Security
Writing in the Washington Examiner, National Center for Public Policy Research board member Horace Cooper has harsh wordsfor a recent 9th Circuit Court of Appeals decision on “extraordinary rendition.”
A recent ruling by a three judge panel of the U.S. 9th Circuit Court of Appeals allowing the ACLU’s lawsuit against “extraordinary rendition” to go forward was reckless and lawless. Tragically, the price for aiding the ACLU may well be the loss of American lives.
This case (Mohamed, et al., v. Jeppesen Dataplan, et al) started in 2007 when the ACLU and five non-citizens filed suit claiming that the five men were unlawfully captured and tortured as part of a “clandestine” CIA program for interrogating suspected terrorists.
…This case demonstrates the limits of courts when it comes to assessing policy matters, particularly those associated with national security. Judges have no particular skills in evaluating either the benefits or the consequences of their rulings on national security and as lifetime appointees they are well insulated from the consequences of their rulings.
…When this case came before U.S. District Judge James Ware, he dismissed this case once its implications for national security became clear. The Justice Department had invoked the “state secrets” doctrine and former CIA Director Michael V. Hayden’s warned that if this case were to go forward it could cause “exceptionally grave” danger to U.S. national security.
It is well settled that when the “subject matter of a lawsuit is a matter of state secret,” the suit must be dismissed without regard to the question of evidence. And as the Supreme Court has recognized for over a 100 years, any lawsuit predicated on “alleged espionage agreements” also require a per se or automatic dismissal. This case involved both elements. But in overturning Judge Ware, the Ninth Circuit decision flies head long against these precedents.
…This decision was particularly distressing as it disregarded the assertion of the “State Secrets” privilege by both the Bush and Obama Justice Departments.
Furthermore, this decision is sharply at odds with the national-security reality that Americans face: We are in a worldwide war with terrorists who seek to destroy our country and our way of life. They have attacked us at sea and on land, at home and abroad. And recent disclosures by the Obama Administration about a thwarted attack on Los Angeles a few years ago reveal that our enemies haven’t stopped their efforts to harm us.
Make no mistake the precedent of allowing these alleged victims of the United States government’s “extraordinary rendition” program to misuse the Federal Court system even though the CIA is not a party to the lawsuit is lawless as well as dangerous.
Publicly exposing vital secrets will aid terrorists and others who threaten our nation’s security. Unfortunately, this ruling, by denying the seriousness of the threat, will only make the effort to save American lives more difficult.
Read it all here.