Galit Raguan (Berkeley Law) has posted Masquerading Justiciability: The Misapplication of State Secrets Doctrine in Mohamed v. Jeppesen – Reflections from a Comparative Perspective (Georgia Journal of International and Comparative Law, Forthcoming) on SSRN. Here is the abstract:
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In its September 2010 decision in Mohamed v. Jeppesen, a 9th Circuit en-banc panel dismissed a potential challenge to the Government's Extraordinary Rendition Program, relying on the state secrets privilege. The majority's opinion in Jeppesen and its brethren is a gross misapplication of the state secrets privilege as envisaged by the Supreme Court in its authoritative decision United States v. Reynolds. In fact, it has transformed the state secrets privilege essentially from an evidentiary privilege to a substantive non-justiciability barrier which prevents adjudication challenging certain national security policies, while evading the bigger question regarding the role of the judiciary in keeping in check the Executive's national security policies in the context of the 'war on terror'. Contemporary misapplication of the privilege by the federal courts also highlights the weakness of the privilege as formulated under Reynolds, which lacks a balancing test that would allow courts to weigh competing interests rather than granting the Government's interests absolute protection. In this respect, the Israeli legislative scheme and judicial practice for dealing with privileged information provide valuable insight with regard to both an alternative legal scheme to the one currently in place in the US, as well as a substantively different mindset which facilitates adjudication rather than dismissal of challenges to executive national security policies.