These conclusions [that continuation of the case will risk revelation of state secrets] by Director Hayden and the district court have been reinforced by an additional review – following the panel decision in this case – at the highest levels of the Department of Justice. Based on that review, it is the Government’s position that permitting this suit to proceed would pose an unacceptable risk to national security, and that the reasoning employed by the panel would dramatically restructure government operations by permitting any district judge to override the Executive Branch’s judgments in this highly sensitive realm.

Rehearing en banc is appropriate because, despite the conclusions of the Executive Branch and the district court, the panel ordered that this litigation proceed. The panel held that the state secrets doctrine supports dismissal at the outset of litigation only in suits arising out of a plaintiff’s alleged espionage relationship with the Government. No other court of appeals has so restricted the state secrets privilege, and the panel’s order is directly at odds with the cardinal principle, repeatedly applied by courts of appeals, that a case must be dismissed regardless of its stage if it cannot be litigated further without risking disclosure of state secrets. See Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005) (“Courts are not required to play with fire and chance further disclosure – inadvertent, mistaken, or even intentional – that would defeat the very purpose for which the privilege exists.”).

The panel further held that, outside of the narrow context of suits alleging a plaintiff’s espionage relationship, the state secrets doctrine is merely a limited evidentiary privilege covering only specific materials or documents, which cannot be used to protect categories of information or as a basis to dismiss claims in litigation threatening disclosure of state secrets. This unprecedented view of the privilege conflicts with the construction endorsed and applied in various cases by the courts of appeals, including this Court, and will significantly hamstring the Government’s ability to prevent the disclosure of highly sensitive state secrets through litigation. The effect of the panel’s ruling is to permit litigation to go forward even though, as the Executive Branch and the district court have both concluded in this case, further proceedings can reasonably be expected to cause serious or even exceptionally grave harm to our national security. The en banc Court should review the panel’s decision before allowing it to become the law of this Circuit, and to govern this case.

While the brief is bad enough in suggesting that it is somehow improper for an appeals court to disagree with the Executive Branch and a district court (Gawd forbid a district court get reversed when it ruled in favor of the government seems to be the argument), it is worse in its mischaracterization of the rule the Jeppesen panel actually enuniciated. Let's review the panel decision on the matter:

Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires “ ‘simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ” Al-Haramain, 507 F.3d at 1204 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C. Cir. 1983)).

Within the Reynolds framework, the “litigation can proceed,” therefore, so long as (1) “the plaintiffs can prove ‘the essential facts’ of their claims ‘without resort to [privileged evidence],’” id. (quoting Reynolds, 345 U.S. at 11), and (2)invocation of the privilege does not deprive “the defendant of information that would otherwise give the defendant a valid defense,” Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).

What the Jeppesen court ruled is clear and limited -- if the plaintiff can prove the case without the privileged state secret information, then it is so entitled. the Obama DOJ misstates this rule as requiring the endangering of state secrets. In fact, the Jeppesen panel notes that:

[N]ot all of plaintiffs’ theories of liability require proof of a relationship between Jeppesen and the government. Their claims, for example, that Jeppesen acted with reckless disregard for whether the passengers it helped transport would be tortured by agents of the United States, Morocco, Egypt, and Jordan, do not necessarily require establishing that the United States operated an extraordinary rendition program, much less that Jeppesen entered into a secret agreement with the government to assist in such a program. These claims require proof only that Jeppesen provided support for the flights on which the five plaintiffs were flown with actual or imputed knowledge that the passengers would be tortured at their destinations.

(Emphasis supplied.) The Obama DOJ flatly misstates the holding by the Jeppesen panel. Further, the Obama DOJ flatly misstates the rule that the Jeppesen panel announces regarding the evaluation of the President's clam of privilege:

The government’s argument that Kasza, 133 F.3d 1159, has already recognized that the subject matter of a lawsuit is a state secret outside the Totten context any time secret information “is at the core” of the plaintiff’s claims, is wrong. In that case, we affirmed dismissal according to the Reynolds evidentiary framework because, after the privilege had been asserted with respect to evidence during discovery, we concluded that “the state secrets privilege bars the plaintiff from establishing her prima facie case on any of her eleven claims,” and that “[n]o protective procedure can salvage [the plaintiff]’s suit.” 133 F.3d at 1170.

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. . . . This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad.

According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

We reject this interpretation of the “very subject matter” concept, not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and the Executive’s constitutional duty “to preserve the national security,” United States v. Valenzuela-Bernal, 458 U.S. 858, 880 (1982). We simply need not place the “coequal branches of the Government” on an all-or-nothing “collision course.” Cheney, 542 U.S. at 389.

To be sure, all Presidential “claims of confidentiality and autonomy . . . push[ ] to the fore difficult questions of separation of powers and checks and balances.” Cheney, 542 U.S. at 389. Here, as in all such cases, “[t]he Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.” Id. But in the state secrets context, the difficulty of that task and the violence of the collision are both substantially less extreme within the Reynolds evidentiary framework, when both branches are made to engage in a “formula of compromise,” 345 U.S. at 10, rather than by application of the winner-takes-all Totten rule.

Within the Reynolds’s framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance “the circumstances of the case” and the plaintiff’s “showing of necessity” for the evidence against the “danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.” Id. 10-11. Where a plaintiff’s need for the evidence is “strong . . ., the claim of privilege should not be lightly accepted,” but “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege applies. Id. at 11.

. . . The Constitution “ ‘protects us from our own best intentions,’ ” in other words, by “divid[ing] power . . . among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.’ ” Printz v. United States, 521 U.S. 898, 933 (1997) (quoting New York v. United States, 505 U.S. 144, 187 (1992)). Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765))(emphasis added). Thus it was “ ‘the central judgment of the Framers of the Constitution’” that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (quoting Mistretta v. United States, 488 U.S. 361, 380 (1989)). . . .

None of this argument is addressed by the Obama' DOJ's outrageous and disingenuous brief. But make no mistake, the brief's authors want us to know that this brief was approved at the highest levels of the Obama Administration:

These conclusions [that continuation of the case will risk revelation of state secrets] by Director Hayden and the district court have been reinforced by an additional review – following the panel decision in this case – at the highest levels of the Department of Justice.

(Emphasis supplied.) Eric Holder, and Barack Obama, own this brief. Lock, stock and barrel. On this issue, Obama does equal Bush.

Speaking for me only