"Judicial notice" an oxymoron?

Scott Horton writes about the awful decision in Mohammed v. Jeppesen Dataplan, which we ranted against last week. The case

involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, in briefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world--the Court of Appeal in London--had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.

The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion--or even in most of the press accounts about it.

This is bad, people. This is ve-must-halt-these-proceedings-in-the-name-of-Reich-zecurity bad. Whatever the merits of the case -- and we may find those out in the UK proceeding -- it's outrageous that the feds can get a case dismissed on the face of the complaint by merely alleging to the courts that "state secrets" are implicated.