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Ninth Court Ruling Missed the Mark, MU Expert Says

MU law expert believes court should not have dismissed entire lawsuit against Jeppesen Dataplan Inc.

September 10th, 2010

Story Contact: Nathan Hurst, 573-882-6217, hurstn@missouri.edu

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

COLUMBIA, Mo. – The recent ruling by Ninth Circuit Court of Appeals in Mohamed v. Jeppesen Dataplan, Inc. to dismiss a lawsuit against the CIA’s “extraordinary rendition” program has been met with much protest from civil liberties advocates. Christina Wells, the Enoch H. Crowder professor of law at the University of Missouri School of Law and an expert in executive secrecy, believes the court ruling missed the mark.

The federal court ruled that former prisoners and alleged torture victims of the CIA could not sue Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the CIA’s “extraordinary rendition” program, because during such a lawsuit secret government information might be released. Wells says the court should have allowed certain information to be withheld without such a sweeping dismissal of the lawsuit.

“The court should allow the state secrets privilege to exist but use it as an evidentiary privilege to exclude specific pieces of evidence that would pose a threat to national security rather than dismiss entire lawsuits at a very early stage before there is even a chance for evidentiary issues to be litigated,” Wells said.

Ultimately, Wells says the issue comes down to how much government secrecy the federal courts will allow. She believes that excessive government secrecy undermines government accountability by allowing government officials like the president to make broad assertions about dangers to national security without adequately backing up those assertions.

“If the ‘state secrets’ doctrine is interpreted to allow a great deal of secrecy without questioning such presidential assertions, it inhibits the public’s ability to question the veracity of the president’s story,” Wells said. “This will eventually undermine both civil rights and the separation of powers by strengthening one branch of government over the others and preventing public scrutiny of executive action.”

Wells says that while the Obama administration has made some positive strides in the area of secrecy, it still is acting more aggressively than is warranted. She adds that while the Constitution gives the president authority over foreign affairs and national security, that authority should not be unchecked.

“If President Obama were able to force the dismissal of a lawsuit every time a piece of secret or national security information was involved in a lawsuit, a huge number of lawsuits against the government would be dismissed,” Wells said. “This would be true even if the lawsuits were about unrelated issues, such as employment discrimination at the CIA or the Department of Defense. Dismissals of similar lawsuits in recent years have been very controversial.”

Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law. Wells has worked professionally as an associate at Skadden, Arps, Slate, Meagher & Flom in Chicago and as an associate at Heller, Ehrman, White & McAuliffe in Los Angeles. She has been on the University of Missouri School of Law faculty since 1993.   Her paper on the Obama administration’s assertions of the state secrets privilege can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1576578.

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