The doctrine of national security secrets was invoked by U.S. lawyers in two separate federal courts in San Francisco today in bids to dismiss lawsuits concerning rendition flights and warrantless wiretapping.
In one case, Justice Department attorney Douglas Letter asked an 11-judge panel of the 9th U.S. Circuit Court of Appeals to toss out a lawsuit filed by five foreign citizens against a San Jose aviation services company.
The plaintiffs claim that Jeppesen DataPlan Inc. aided the CIA in flights that took them in 2001, 2002 and 2003 to secret overseas prisons where they were interrogated and allegedly tortured.
In a second hearing, department lawyer Anthony Coppolino asked U.S. District Judge Vaughn Walker to dismiss a lawsuit in which four women from Brooklyn, N.Y., claim the Bush administration engaged in dragnet surveillance of Americans’ phone calls and e-mails.
In both cases, the government attorneys argued that allowing the lawsuits to proceed in any way would endanger the nation by revealing security secrets, known as state secrets.
Letter told the appeals court panel, “If state secrets are central to the case and cannot be disentangled from the rest of the case, the lawsuit must be dismissed.”
American Civil Liberties Union attorney Ben Wizner argued that the men who sued Jeppesen should be given a chance to try to prove their case with public, non-secret information.
Wizner contended, “In a case of this importance, it is not a waste of judicial resources to give torture victims their day in court.”
In the second hearing, Coppolino was asked by Walker whether the state secrets doctrine should apply if the alleged wiretapping is already public knowledge, as is claimed by the New York plaintiffs.
Coppolino answered that there is a “big difference between allegations and speculation” and a government disclosure.
He said an official disclosure “would replace speculation with a clear certainty that the government is or is not doing something.”
Both courts took the cases under submission and will issue a written ruling at a later date.
Both attorneys referred during the hearings to classified statements filed under seal with the judges by high-level CIA and national security officials to explain why state secrets were at stake.
The appeals court panel, after holding an hour-long public hearing in a courtroom, adjourned to a closed session in a conference room with only the judges and government lawyers present to discuss the classified statements.
Letter told the appellate judges several times during the public part of the hearing that he couldn’t discuss his state secrets arguments fully in public, but promised, “I’m happy to go into detail in the closed session.”