Dispatches from the Creation Wars

This is likely bad news. My colleague Daphne Eviatar reports that the 9th Circuit Court of Appeals has agreed to hear an en banc appeal of their ruling that rejected the Obama administration’s invocation of the broadest possible meaning of the state secrets privilege.

The case is Mohamed et al v Jeppesen Dataplan, a civil suit against the Boeing subsidiary that provided transportation for the Bush administration’s extraordinary rendition program and transported detainees to other countries where they were subjected to the most brutal torture techniques imaginable.

In the Jeppesen case, the Obama Justice Department has been adamant that the details of the Bush administration’s rendition-to-torture program remain secret — hence it’s request to the full Ninth Circuit to re-hear the case en banc, meaning all 11 active judges, rather than just the three-judge panel that ordinarily hears cases. Courts of appeals reserve en banc hearings for unusually controversial and important cases, usually when there’s significant disagreement among the judges in the circuit. The judges vote on whether the case should be re-heard, but the outcome of the vote is not made public.

Apparently there is significant disagreement in this case, because the judges voted to accept the request for rehearing, the court announced yesterday.

This can’t be good news. If the full appeals court reverses that ruling and upholds the state secrets privilege arguments of the Obama administration, that could domino on to at least half a dozen other cases and leave it to the Supreme Court to overturn those rulings. It could potentially mean the end of judicial review for any and all forms of executive branch abuse, from warrantless wiretaps to torture. And that would mean the end of our entire constitutional system because it would create an unconstrained executive branch that is no longer bound by the constitution.