President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.
After Obama issued an executive order and two presidential memoranda last week proclaiming a new transparency in the workings of the federal government, advocates for open government were thrilled.
“That was an order we were really looking for,” said Michael Ratner, president of the Center for Constitutional Rights.
Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin
The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.
One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.
Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.
The ACLU filed suit on behalf of this group of victims in May 2007, but the Bush administration quickly swooped in, waving the flag of the state secrets privilege. Insisting that the very subject of the lawsuit – the CIA’s rendition program – is itself a state secret, the Justice Department convinced the federal court in California, where Jeppesen is based, to dismiss the case on the grounds that it would harm national security.
By this time though, the CIA’s torture practices had already been widely publicized. As it happens, on the same day that Justice Department lawyers were in a federal court in California insisting that the case against Jeppesen be dismissed to protect CIA secrecy, CIA Director Michael Hayden was testifying before the Senate Select Intelligence Committee under oath that the CIA had waterboarded three prisoners in its custody. Earlier, Hayden had given a speech about “the CIA’s rendition, detention and interrogation programs” at the Council on Foreign Relations. Previous CIA Directors Porter Goss and George Tenet — and even President Bush, in a speech in September 2006 — had also described and defended the program.
In fact, by the time this lawsuit was filed, the CIA’s rendition of suspected terrorists to foreign countries to be tortured had become an international scandal. Foreign countries such as Egypt, Switzerland, the UK and others that had cooperated with the CIA had been forced to investigate; those investigations had corroborated many of the allegations that are the subject of the case pending against Jeppesen.
Still, the U.S. government, now under President Obama, continues to insist in a brief filed with the U.S. Court of Appeals for the Ninth Circuit that “[t]he sensitivity of the information at issue in this litigation, and the serious harms that would result from its disclosure, compel the Government to assert the state secrets privilege.” The Obama administration has not filed any new briefs or amendments in the case.
If the court agrees, none of the victims of rendition in this case — or likely, in any other — will get his day in court.
“These victims not only haven’t been compensated, they haven’t even been heard,” said Ben Wizner, one of the lead ACLU lawyers handling the case. “Torture victims deserve acknowledgment and compensation.”
Take the case of one of Wizner’s clients, Binyam Mohamed. A 28-year-old Ethiopian citizen and legal resident of the UK, Mohamed was arrested at the airport in Karachi, Pakistan on immigration charges in April 2002. For the next three months, he was held in secret detention, interrogated and tortured by Pakistani authorities, he says; he was also questioned by US and British agents.
In July, according to the lawsuit, he was turned over to the exclusive custody of the United States, whose agents stripped, shackled, and blindfolded him, then dressed him in a tracksuit and dragged him on board a Gulfstream V jet aircraft. With assistance from Jeppesen Dataplan, Mohamed was flown to Morocco, where he was turned over to local police and interrogated under torture for the next 18 months. Mohamed says he was routinely beaten to the point of losing consciousness and, as the ACLU describes in its legal brief, “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”
In January 2004, Mohamed was returned to the custody of U.S. officials, flown to Afghanistan and tortured again, he said, this time at a secret CIA prison. After months of beatings and interrogation following sleep and food deprivation, according to the lawsuit, he was transferred to the prison at Guantanamo Bay, where he remains today.
The stories of Abou Brital, Ahmed Agiza, Mohamed Bashmilah and Bisher Al-Rawi are similar, and much in their accounts is corroborated. Ahmed Agiza’s rendition and torture in Egypt, for example, has been investigated and publicly acknowledged by the government of Sweden, where he was seeking asylum when he was captured. (He’s now serving 15 years in an Egyptian prison for membership in a banned Islamic organization.) Jeppesen’s role is also public record, revealed in documents produced in separate inquiries by the Council of Europe and the European Parliament.
Meanwhile, Britain’s High Court of Justice, which corroborated much of Binyam Mohamed’s story in its own investigation, in August ruled that Mohamed was entitled to obtain documents from the British government to establish that he was tortured so he can seek to exclude evidence extracted by torture as unreliable if he is ever prosecuted by U.S. authorities.
Curiously, however, part of the government’s “state secrets” claim rests on the need to protect information about the participation of U.S. allies in the CIA’s rendition program.
“It would be a remarkable irony if this Court were to affirm the dismissal of this suit in order to protect from disclosure the roles played by other nations – when those very nations are engaged in proceedings that continue to expose precisely the relationships and information that the United States here characterizes as ‘state secrets’, ” the men’s lawyers write in a brief filed with the court of appeals.
The Department of Justice declined to comment on this case. In its brief filed before President Obama took office, however, it argues, largely on the basis of a classified declaration of former CIA Director Michael Hayden submitted “in camera” – that is, for exclusive review by the judge — that release of any information pertaining to this case would harm national security. Hayden’s statement “explained more fully than was possible on the public record the scope of information subject to the privilege assertion, and the harms that would flow from its disclosure,” Justice Department lawyers wrote. Although the victims perhaps “cannot appreciate fully the reasons for the district court’s conclusion . . . or comprehend the substantial harm to national security and foreign relations that could reasonably be expected to result from litigating this case,” the court of appeals should rest assured that the government’s reasoning is sound, write the government lawyers.
Contacted last week by TWI, a Justice Department spokesman would not say whether the new Obama administration would change its position in this case. He confirmed only that oral arguments are scheduled for Feb. 9.
If the Obama administration maintains the government’s position in this case, said Wizner, it would further the Bush administration’s strategy of turning the state secrets privilege into a blanket immunity for the most egregious and unlawful government action.
“Every single civil torture case that’s been filed has been dismissed at the pleadings stage on what non-lawyers would call a technicality,” said Wizner, referring to the state secrets and government immunity defenses that have succeeded in other torture cases.
In another lawsuit filed by the ACLU in 2006 on behalf of rendition victim Khaled El-Masri, for example, a federal court in Virginia accepted the government’s same argument that the subject of the entire case was privileged and dismissed the lawsuit. El-Masri was a German citizen and car salesman when he was abducted in 2003 by U.S. authorities, transported to a secret CIA prison in Afghanistan and tortured, until he was released without charge in 2004, dumped on a hill in Albania. The Fourth Circuit Court of Appeals, an ideologically conservative court long dominated by Republican judges, affirmed the lawsuit’s dismissal. (The Ninth Circuit Court in California that will hear the Jeppesen case is considered more liberal.)
“The Bush administration said over and over not just that these programs were necessary, but that they were legal,” insists Wizner. “But they’ve never allowed any court to rule on it.”
None of the victims involved in the case against Jeppesen were available to talk to TWI, but in an op-ed in the Los Angeles Times, Khaled El-Masri wrote after his case was dismissed in 2007:
“Above all, what I want from the lawsuit is a public acknowledgment from the U.S. government that I was innocent, a mistaken victim of its rendition program, and an apology for what I was forced to endure. Without this vindication, it has been impossible for me to return to a normal life.”
Advocates hope the new administration will stop using the state secrets defense to avoid providing that kind of acknowledgment.
“Instead of this notion that the entire subject matter of the lawsuit is a state secret, there should be a parsing of the evidence,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, an independent nonprofit think tank that issued a comprehensive report last year on the need to reform the state secrets privilege. “The new administration might have a valid state secrets claim about some particular pieces of evidence, but it shouldn’t be the entire lawsuit. We all know there’s been this extraordinary rendition program. The government should consent to an independent review by a judge as to what evidence should or should not be disclosed.”
More broadly, advocates have been pressing for a law such as the bipartisan State Secrets Protection Act, introduced by Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn.) last year, that would codify and narrow the state secrets privilege “to restore the role of the courts as an independent check,” says Franklin. They’ve also asked the Obama transition team to change the government’s policy on its use.
“We’ve asked that the Attorney General put in place a much better system for reviewing when the Justice Department will assert the state secrets privilege,” said Meredith Fuchs, General Counsel for the National Security Archives at George Washington University. “Because once it’s asserted it’s tremendously powerful.”
In a memorandum issued to the heads of all agencies last week, President Obama wrote: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”
Advocates will watch closely to see how the Obama administration will handle this and other cases that under the Bush administration were stymied by government secrecy.
“Because the Bush administration was so secretive and it played out in so much litigation,” said Fuchs, “what happens in these cases is a good test of whether the Obama administration really means what it’s saying.”