The question is: Can the US government force the dismissal of a lawsuit against it simply by claiming that national security would be endangered if the suit went ahead? On Tuesday in San Francisco, the nation may move one step closer to an answer.
That’s the day the American Civil Liberties Union (ACLU) will appear in a federal appeals court in San Francisco to argue that a lawsuit against Boeing subsidiary Jeppesen Dataplan Inc. for its role in the Bush administration’s unlawful “extraordinary rendition” program should go forward.
The Bush administration repeatedly used the so-called “state secrets privilege” in an attempt to have the case thrown out. When a federal court finally ruled that it should go forward, Obama administration lawyers appeared in court and – to the surprise of everyone, including the judges – took exactly the same position as their predecessors.
That unleashed a tidal wave of criticism from Obama supporters in the progressive wing of the Democratic Party, as well as from a number of conservative and libertarian commentators. Recalling candidate Obama’s pledge to reform the state secrets privilege, his supporters have been trying to calculate how the new president reaches decisions.
The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release of such details would threaten national security by revealing the nature of the bomber’s top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. Rather, they contained information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force’s case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.
The case to be heard in San Francisco this week is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident, who is suing the government on behalf of himself and four other men. While in CIA custody in 2002, Mohamed was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. Similar treatment was allegedly meted out to the four other complainants in the case.
In January 2004, Mohamed was once again blindfolded, stripped and shackled by CIA agents and flown to the secret US detention facility known as the “Dark Prison” in Kabul, Afghanistan, where he was again tortured and eventually transferred to another facility and then to the US Naval Station at Guantanamo Bay, Cuba, from which he was released without charge in February.
After Mohamed was captured, then-Attorney General John Ashcroft said that Mohamed had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to “render” terror suspects to countries where they were disappeared and tortured.
A Council of Europe report in 2007 described Jeppesen as the CIA’s aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA’s “torture flights.” And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, “We do all of the extraordinary rendition flights – you know, the torture flights. Let’s face it, some of these flights end up that way.”
The lawsuit, brought by the ACLU and the ACLU of Northern California in 2007, charges that Jeppesen knowingly participated in the forcible disappearance and torture of the men by providing critical flight planning and logistical support services to the aircraft and crews used by the CIA to carry out their “extraordinary rendition.”
The Bush administration intervened in the case, asserting the state secrets privilege to have the lawsuit thrown out. But in April, a three-judge panel of the US Court of Appeals for the Ninth Circuit ruled that the government can only invoke the privilege with respect to specific evidence – not to dismiss an entire suit.
The three-judge panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. It said the administration’s argument, if accepted, would “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law.”
But, at the request of the Obama Justice Department, the Ninth Circuit set aside this ruling and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. That is the rehearing that will take place this week.
In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller – involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence sharing among allies if the abuse was publicly disclosed.
Ben Wizner, an attorney with the ACLU, which represents the plaintiffs, told us, “Much is at stake in this case. If the CIA’s overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
He said he was “disappointed that the Obama administration continues to stand in the way of torture victims having their day in court.”
He added, “This case is not about secrecy. It’s about immunity from accountability. To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no ‘state secrets’ here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration.”
Six of the 27 judges on the appeals court have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody. Bybee also approved the so-called “torture memos” prepared by then-Justice Department lawyer John Yoo.
Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without US charges.
Binyam Mohamed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the UK. He claimed that, up until the time of his release, he was being asked to agree to a nondisclosure agreement in return for charges not being brought against him.
In the past, the US has received “diplomatic assurances” from countries on the receiving end of the extraordinary rendition trips that their new “guests” would not be tortured. However, these assurances have proved to be largely worthless.
The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The British High Court found that while Mohamed was in American custody, the CIA told British intelligence agents how he was being treated. The court ruled that Mohamed has the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-products of coercion.
In a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Miliband, denied that there was any threat from the US.
But the US State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
The High Court ruled that David Miliband, the British foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed.
In a devastating judgment, two senior judges roundly dismissed the foreign secretary’s claims that disclosing the evidence would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.
In what they described as an “unprecedented” and “exceptional” case, they ordered the release of a seven-paragraph summary of what the CIA told British officials about Mohamed before he was secretly interrogated by an MI5 officer in 2002.
“The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law,” Lord Justice Thomas and Mr. Justice Lloyd Jones ruled. “Championing the rule of law, not subordinating it, is the cornerstone of democracy.”
With President Obama’s election in 2008, human rights and rule-of-law advocates such as the ACLU were encouraged to believe that the Obama Justice Department (DOJ) would break from the practices of the Bush administration. Eric Holder, Obama’s new attorney general, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
This appeared to be at odds with the actions taken by DOJ lawyers in court.
In a statement, Anthony D. Romero, ACLU executive director, said, “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same.”
He added, “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
It has been 50 years since the United States Supreme Court last reviewed the use of the state secrets privilege. During the Bush administration, government lawyers invoked the privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistleblower Sibel Edmonds, who was fired from her position as a language specialist at the FBI’s Washington Field Office in March 2002 after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups and intentional blocking of intelligence which, she contended, presented a danger to US security. Her case was appealed all the way to the Supreme Court, which refused to hear it.
And in 2007, the Supreme Court refused to review the state secrets privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA “black site” prison in Afghanistan.
Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.”
The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Sen. Pat Leahy of Vermont, has been a long-time advocate of the measure. In the House, the Judiciary Committee is taking the first steps considering a similar reform measure in the form of the State Secret Protection Act of 2009