Wednesday, September 08, 2010

Mohamed v. Jeppesen Dataplan (9th Cir. - Sept. 8, 2010)

In keeping with my traditional practice, I won't say much about this case. Because as a high-profile case, it will get plenty of commentary elsewhere.

The Ninth Circuit, in a close 6-5 en banc opinion, employs the state secrets doctrine to dismiss at the pleading stage a lawsuit that alleges that private contractors knowingly participated in an illegal "extraordinary rendition" program run by the CIA in which individuals were tortured, "disappeared," and otherwise subjected to activities in foreign countries that would be illegal for the CIA to perform itself.

The majority opinion is far from overboard. It "reluctantly" dismisses the lawsuit. It mentions that courts should be "skeptical" of executive invocations of the state secrets doctrine in lawsuits that allege official abuse because the principle might well be used to hide executive wrongdoing in the cloak of national security concerns. It concludes by mentioning that there are other ways in which the plaintiffs might obtain relief; private bills, voluntary compensation by Congress, etc.

But in the end, the majority holds that the lawsuit gets dismissed in its entirety because the core of the lawsuit would require disclosure of state secrets and there's nothing short of dismissal that would solve this problem. So even if the plaintiffs had their rights severely violated, there's no judicial remedy.

Apart from simply describing the holding, I'll offer three very brief points that you probably won't read elsewhere, and that relate less to the merits than to procedure. Though, as usual, there's a big overlap there.

(1) The opinion is a direct product of the vote. The opinion is cautious and careful. It takes the matter seriously. It's not knee-jerk conservative or uncompassionate. There's a reason for that. Actually, several reasons, but they're closely related. The opinion is written that way because it is written by Judge Fisher. And it's written by Judge Fisher because, in this particular case, he's the Justice Kennedy of the Ninth Circuit.

It's a close vote. There are four Republican appointees in the majority, counting Judge Tallman as a Republican appointee, which he is in all but name, plus Judge Rawlinson. There are five Democratic appointees in the dissent. Judge Fisher makes the difference. He's the crossover that makes the difference. So he gets to write the opinion the way he wants. Which is a smart move as a way to hold his vote. Ditto for the lack of a vitriolic concurrence. The opinion is what it is in substantial part because it's a 6-5.

Not that there aren't several judges in the majority who might write similar things and who have similar sentiments. There are. But what you read is a definite product of the vote.

(2) The case comes out differently in parallel universes. Half the time the case goes the other way with a fully random en banc draw. Who gets chosen sometimes matters. It does here.

(3) The case likely comes out differently if Obama had filled the four empty seats. Maybe even comes out differently if the Senate had confirmed the two nominations that have been pending for six months. Delay sometimes matters too. Here's another good example.

You'll be hearing about the merits elsewhere. Don't overlook what's underneath as well.