and when I read this bit passage (in the summary at the Jurist), I did a double-take:
" the possibility that the executive may determine whether the claims have merit and voluntarily choose to "honor the fundamental principles of justice."
Pass the judicial buck back to the executive to be the self-policing judge on an honor system?
The majority said that other avenues may be available for the plaintiffs to address their claims, including Congressional investigation of alleged wrongdoing, monetary reparations and the possibility that the executive may "determine whether the plaintiffs' claims have merit" and voluntarily choose to "honor the fundamental principles of justice." The five-judge minority chastised the proposal, saying that "(n)ot only are these remedies insufficient, but their suggestion understates the severity of the consequences to plaintiffs from the denial of judicial relief" and "elevate the impractical to the point of absurdity."
http://jurist.org/paperchase/2010/09/ninth-circuit-dismisses-cia-rendition-suit-on-state-secrets-grounds.phpHere's the 55 page Opinion.
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/07/08-15693.pdfYes, among other things, they really did say that.
V. OTHER REMEDIES
Our holding today is not intended to foreclose — or to prejudge— possible nonjudicial relief, should it be warranted for any of the plaintiffs. Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs in this action,our decision forecloses at least one set of judicial remedies, and deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors. Other remedies may partially mitigate these concerns, however, although we recognize each of these options brings with it its own set of concerns and uncertainties.
First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.
(snip)
Here's what the dissenting judges said:
The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief. Suggesting, for example, that the Executive could “honor( ) the fundamental principles of justice” by determining “whether plaintiffs’ claims have merit,” (see Maj. Op. at 13554) disregards the concept of checks and balances. Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered (Maj. Op. at 13554), elevates the impractical to the point of absurdity.
Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” (Maj. Op. at 13556), leaves to the legislative branch claims which the federal courts are better equipped to handle. See Kosak v. United States, 465 U.S. 848, 867 (1984) (Stevens, J., dissenting).
(snip)
I would remand to the district court to determine whether Plaintiffs can establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.
13572 MOHAMED v. JEPPESEN DATAPLAN
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