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Release of Torture Memos Could Help Victims of CIA Policies in Pending Lawsuits

With the latest batch of Bush-era Office of Legal Counsel torture memos having revealed more of the intricate, gruesome details of the CIA’s interrogation techniques, how can the government continue to claim that its now-defunct “extraordinary rendition” and torture program is a “state secret”?

That’s the question raised in a letter sent today by the American Civil Liberties Union to a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which is now considering the appeals of victims of that formerly secret CIA program in a pending case.

Mohamed v. Jeppesen Dataplan, which I’ve written about here, charges that Jeppesen, a subsidiary of Boeing, assisted the CIA in unlawfully sending the men abroad to be interrogated under torture. The victims seek monetary damages and an acknowledgment of what was done to them. But the government – first under President Bush and now under President Obama – has claimed the case must be dismissed because the rendition program is a “state secret” and revealing information about it would endanger national security, even though President Obama has insisted that the program is no longer active.

With the memos describing the CIA’s interrogation techniques now in the public domain, that argument makes little sense, the ACLU wrote today in a letter to the court.

The government’s invocation of the state secrets privilege relied on the claim of former CIA Director Michael Hayden that “the details of the program remain highly classified. . . . General Hayden insisted that disclosing specific interrogation techniques ‘would degrade the effectiveness of the United States’ intelligence gathering activities by, for example, providing terrorists information about interrogation methods that would assist their interrogation resistance programs,’ “ writes Ben Wizner, the lead ACLU lawyer handling the case. But “[t]hat rationale no longer exists, because the methods are now public, and because they have been expressly prohibited.”

“Now that the CIA’s detention and torture program has been publicly confirmed and officially terminated, there is no basis whatsoever for denying its victims their day in court,” he wrote.

Since the release of the memos last week, while the focus of many lawmakers and advocates has been on potential prosecution of the lawyers and policymakers who approved them, the ACLU’s letter picks up on a different part of the accountability equation that so far has gotten far less attention: granting the victims their day in court.

“This is equally important,” wrote Wizner in an e-mail this afternoon.

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