Of all the excesses of the post-9/11 war on terror, none was as outrageous as the practice of "extraordinary rendition" — transferring suspects abroad for interrogation and, it's alleged, torture. Compounding the injustice, five victims of rendition were denied the opportunity to challenge their treatment in court this week when the U.S. 9th Circuit Court of Appeals blocked their lawsuit against a San Jose airline-services company accused of assisting in their transportation to foreign countries.
Overruling a three-judge panel of the same court, the 9th Circuit held 6 to 5 that allowing the suit to proceed, even on the basis of publicly revealed information, would risk the release of state secrets. Judge Raymond C. Fisher's majority opinion agonized about the tension between national security and "justice, transparency [and] accountability." But, in the end, the court ratified extravagant claims by the George W. Bush and Obama administrations that a trial would violate the "state secrets privilege."
The court could have taken a narrower approach, allowing a trial to go forward and letting the judge consider on a case-by-case basis whether particular pieces of evidence needed to be kept secret. Instead, it preempted that process by citing another court's observation that sometimes "seemingly innocuous information is part of a … mosaic," so that even the use of unprivileged information creates a risk of inadvertent disclosure of state secrets.