February 10, 2009
A panel of judges on the US Court of Appeals for the Ninth Circuit heard arguments in a detainee abuse case Monday that tested the degree to which the Obama administration will depart from the practices of its predecessor. To the disappointment of civil liberties groups, United States Department of Justice lawyers under President Barack Obama invoked the same national security arguments used by the former Bush administration to argue that the case should not be heard.
Justice Department lawyers argued litigation in the case of Mohamed v. Jeppesen Dataplan, Inc. would expose “state secrets” and damage national security and foreign relations.
But according to American Civil Liberties Union (ACLU) lawyer Ben Wizner, the case is about simple decency and due process. All five plaintiffs were subjected to so called extraordinary rendition by the Bush administration, a practice involving government-sponsored abduction and torture. They accuse Jeppesen, a subsidiary of Boeing that regularly contracts with the Central Intelligence Agency (CIA), of aiding and abetting the goverment’s practices.
“Our clients did not make an agreement to be abducted, chained to the floor of planes, and dressed in diapers,” he said.
Justice Department argues state secrets prevents litigation
But Justice Department lawyer Douglas Letter said that CIA Director General Michael Hayden had already announced that the case could not be litigated and must be dismissed on national security grounds. In order to make their case, the plaintiffs would need to prove that Jeppesen worked with the United States government on a clandestine foreign intelligence matter, Letter said. Yet, if the judges allowed the case to go forward, the state secrets privilege, as asserted by Hayden, would prevent Jeppesen from accessing classified information and defending itself.
Not so, argued Wizner, who reminded the judges that they could not abdicate their roles as arbiters adding that classified information could be redacted during the discovery phase of the trial.
Three-judge panel reacts
Judge William Canby, Jr. observed that the Justice Department could not affirm or deny Jeppesen’s involvement in extraordinary renditions but was capable of intervening to prevent the plaintiffs’ case from moving forward. He also noted that the Justice Department was claiming classified information was secret while newspaper reporters had the information and were making it public.
“It’s a classic state secrets case,” insisted Letter. “We say here is why it would be a problem.”
“You’re really like the unindicted co-conspirator,” noted Judge Mary Murphy Schroeder.
Canby also expressed concern about the creation of a “black hole” in which people could be kidnapped by the government without due process of law.
Role of Congress considered
Letter disagreed.
“The state secrets privilege is very misunderstood in the press,” he said. “We have ample other means of [legal protection]. We have significant congressional oversight, inspector general [investigations], and foreign government [responses].”
“This is not a typical state secrets case,” Wizner maintained. “By virtue of the [CIA] director’s statement, it is off the table for congressional investigation.”
Noting the extensive media coverage of extraordinary renditions and detainee abuses, Wizner added, “The notion that you [the judges] have to close your eyes and ears to what everyone else is talking about is absurd.”
Ultimate disposition of the case is unknown
The case originally came before U.S. District Court Judge James Ware in February 2008, but Ware dismissed the case when Hayden and the Bush administration intervened, arguing that official state secrets would be jeopardized. The plaintiffs are now seeking to have their case reinstated or remanded to district court.
While it is unknown how or when the judges will rule, the ACLU expressed disappointment in the stance taken by the Obama administration.
“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,” said ACLU Executive Director Anthony D. Romero.
“This is not change,” said Ben Wizner. “This is definitely more of the same. 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.”
The Hunger Site
February 12, 2009 at 12:28 pm
And one more thing:
According to this story from the Boston Globe, picked up by Common Dreams, it now looks as if both chambers of Congress are moving forward on bills to restrict the use of the ‘state secrets’ argument to deny due process and redress of grievances. It could be that it was Obama’s plan to use the state secrets argument in court — and then prompt House and Senate committees to draft legislation restricting the use of state secrets. I hope so:
http://www.commondreams.org/headline/2009/02/12-6
February 11, 2009 at 11:28 am
I tried to write the story from an unbiased point of view but will admit that I did not reach out to the Department of Justice to see if they had prepared statements. I did contact the ACLU and got some prepared statements from that organization — and used those.
Luke Thomas wrote the headline and threw in one concept that is absolutely vital to American jurisprudence but that did not once get mentioned in the proceedings on Monday, February 9, 2009 in Courtroom One of the Ninth U.S. Circuit Court of Appeals, perhaps because it was so obvious to the lawyers and judges: due process of the law.
I am not a lawyer, but I am a student of history and constitutional law — and, perhaps against my better judgment as a mere student and not a scholar, I now wager my biased opinion: so many people voted for Obama exactly BECAUSE they wanted the restoration of the rule of law and respect for principles as vital as due process to which all Americans and foreign nationals are entitled.
Foreign nationals get their legal right to bring cases in American courts under the Alien Torts Claim Act of 1789, and no one disputed that in the courtroom on Monday. Based on a number of domestic and international anti-torture laws to which the United States is a party — and the Supremacy Clause of the Constitution (“This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”) — being free from abduction, detention, and torture without recourse to due process is also the right of the five plaintiffs in this case, Mohamed v. Jeppesen Dataplan, Inc.
The Department of Justice lawyer in the courtroom on Monday (with a representative of Jeppesen, a Mr. Collins, at his table with him) never tried to use some of the now repudiated arguments laid out by members of the Bush administration in its notorious torture memos. The only argument used to prevent the case from going forward was “state secrets.”
But the three judges and the ACLU lawyer for the plaintiffs poked holes in that argument: newspaper reporters have the information that the Department of Justice lawyer was claiming are state secrets, and everyone is talking about these matters. The ACLU lawyer also pointed out that the country of Sweden had already come to regret its role in assisting the United States with extraordinary rendition and compensated one of the victims in the suit monetarily.
If this is the case, then it seems that what the Department of Justice lawyers are really doing is protecting people from the past administration who were complicit in violations of domestic and international law from prosecution for war crimes — and that is something else that many people are talking about.
However, I hope you are right, and that the headline is wrong, Joe. I hope that Obama is creating space to set the nation aright, restore the rule of law, and let that “truth commission” proposed by Senator Leahy and an independent prosecutor investigation proposed by Congressman John Conyers go forward. (There is a difference in what the two lawmakers are calling for: while Leahy’s commissioners would have the power of subpoena, they would not have the power to bring criminal charges; Conyers, in a January 31, 2009 commentary in the Huffington Post, writes: “… [I]f crimes were committed, those responsible should be held accountable – after all, is there any principle of American freedom more fundamental than the rule that no person is above the law?”)
I recently wrote a feature story on the reaction of women to the inauguration of Barack Obama for another publication. My shy, quiet, next door neighbor who has spent 20 years of her life volunteering for Amnesty International got the closing quote in that story:
“I just want one thing,†she said. “I want to see Obama say: ‘I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’â€
And we all know how that turned out: Chief Justice John Roberts flubbed the administration of the oath of office. However, Obama apparently took the oath again, but out of the public eye. I hope he took it seriously when he did that — and again, that you, Joe, are right, and that the headline is wrong.
February 10, 2009 at 9:00 pm
To conclude that there is no hope for change three weeks after the inauguration is a little premature. Obama is an interesting tactician. His strategies do not always appear on their face.
I’ve seen him create political space to press for a course of action that might fail should he simply tack in that direction immediately. There are two examples that I’m observing, and I don’t have enough evidence yet to form any conclusion.
In gay rights, his invitation to Rick Warren led Warren to walk back his linkage of homosexuals with pederasty and incest. Membership to Warren’s church is now open to gays, and he has scrubbed his web site of references that might be offensive. Meanwhile, Barney Frank is predicting that ENDA may pass Congress with transgender protections. So by moving to the right, Obama may have created the space for reform from the left. But let’s hold our judgment until we see what happens with ENDA.
On prosecuting war crimes, Obama tacked to the right as well saying he wanted to look forward not backwards. Sen. Leahy has pushed back — much as the gay activists pushed back on the Warren invitation — and promises us a legislative investigation of possible war crimes. Such an investigation may create the political space by which Obama can actually prosecute them. Again, let’s hold our judgment until this plays out.
The issues before the Ninth Circuit are nuanced, and I don’t think Obama has them in his focus right now. His attorneys seem to be taking a position that will allow space to be created in which he can focus on the problem at a later time — perhaps after he sets in motion economic recovery, financial stabilization, Iraq withdrawal (did you see the story that Petraeus leaked a false story to the press to create the impression that Obama was backtracking from his withdrawal pledge?), Afghanistan, Pakistan, and future relations with Russia and China. Or is your faith in Obama, the Superman, so great that you think he should add renditions to his highest priorities right now?
February 10, 2009 at 5:54 pm
Apparently according to progressive liberals who voted for Obama it’s OK. It’s was wrong under Bush and it’s wrong under Obama.