Will Rendition Always Remain a State Secret?

On President Obama's first day in office, he stated unequivocally that his administration was "committed to operating with an unprecedented level of openness in government," leaving behind the culture of secrecy surrounding the executive branch during the previous administration. One key brick in the government's wall of secrecy has been the state secrets privilege, which the executive has invoked to dismiss lawsuits alleging abuses committed under its national security policies, such as extraordinary rendition to torture. After the U.S. Supreme Court declined on Monday to hear a case challenging the government's use of the state secrets privilege in a rendition case, it is time for the president to live up to his promise.

In Mohamed et al. v. Jeppesen DataPlan, Inc., five men alleged that Jeppesen, a subsidiary of the Boeing Company, helped the CIA transfer them to other countries for detention, interrogation and torture. The government successfully argued that the very subject matter of its extraordinary rendition program is a state secret and therefore entirely off limits to the courts. When the lower courts dismissed their case on this basis, the plaintiffs appealed to the Supreme Court to reverse that decision -- an appeal that fell on deaf ears.

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