"State Secrets" Doctrine Narrowed

The 9th Circuit issued a ruling on in a CIA Rendition case that puts it squarely at odds with the 4th Circuit and therefore, probably, bound for the Supreme Court:

The Fourth Circuit said a lawsuit by one claiming to have been a “rendition” victim can’t go forward if secrets form “the very subject matter” of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.

The “state secrets privilege,” the Ninth Circuit ruled, applies only to evidence — one item at a time. If an item of evidence is a secret, it will be kept out of the case. But if the information about government action is not secret, it can be offered and tested in court, it said. “The state secrets doctrine,” it said, “applies to evidence, not information.”

Thus, it went on, even if the government claims that information about the “rendition” program is classified, that is no bar to a court exploring specific evidence that is not itself a secret. “The question is which evidence is secret and may not be disclosed in the course of a public trial,” the Circuit Court said.