April 28, 2009
In a partial victory for five men subjected to extraordinary rendition and torture, a three-judge panel with the U.S. Court of Appeals for the Ninth Circuit unanimously reversed today a lower District court ruling that denied rendition abductees the right sue to Jeppesen Dataplan for its role in aiding and abetting a clandestine CIA kidnapping and torture program, remanding the case back to the same court for re-adjudication.
The five plaintiffs – Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi – are suing Jeppesen Dataplan, a wholly-owned subsidiary of Boeing, for its role in knowingly participating in the CIA program. Their case, Mohamed v. Jeppesen, Dataplan, Inc., which was originally heard in the federal courtroom of US District Court Judge James Ware of the Northern District of California in 2008, could now be litigated in Judge Ware’s courtroom.
“What this decision does is finally give our clients [the possibility of having] their day in court,” said Ann Brick, one the of American Civil Liberties Union lawyers representing the five men. “We [may] now get to litigate our case against Jeppesen and the role it played in kidnapping and torture.”
However, to the great disappointment of civil libertarians worldwide, the United States Department of Justice, under President Barack Obama, has not changed the state secrets/national security argument that it had used under the Bush administration against allowing victims of extraordinary rendition, torture, and warrantless wiretapping – all intelligence gathering techniques utilized under the administration of George W. Bush – to sue for damages. In 2008, United States Department of Justice lawyers successfully argued in Judge Ware’s courtroom that this case could not be litigated because of state secrets. The ACLU appealed that case to the 9th Circuit which heard the case on February 9, 2009. US Department of Justice lawyer Douglas Letter then argued against allowing the case to go forward using the same state secrets and national security arguments.
The three-judge panel, in its decision released today, noted that the Alien Tort Statute Act of 1789 permits foreigners to sue in United States courts, but that a 1875 case stemming from the Civil War, Totten v. the United States, created an inflexible rule that categorically denied plaintiffs the right to sue if state secrets could be involved that would jeopardize national security. A later case, they noted, United States v. Reynolds, softened that rule somewhat, carving out a way in which cases could proceed as long as evidence that could harm national security were redacted.
“The first question is: What does the government do next,” said Brick. “It could ask the entire 9th Circuit Court to review the case, it could ask the United States Supreme Court to review the case, or it could follow the instructions [in today’s ruling] and assert the state secrets privilege” while allowing the case to proceed. This will involve the government asserting that particular pieces of evidence requested by the ACLU during the discovery phase are vital to national security. Judge Ware will ultimately decide the validity of that argument with each piece of evidence over which the government and the ACLU may wrangle.
“This system will allow the executive to protect national security while at the same time giving our clients their day in court,” said Brick, adding, “What happened to them was wrong and a violation of international and national law. Jeppesen has to be held accountable.”
It is unknown how President Obama will direct the US Department of Justice to proceed.
“We are reviewing the court’s decision,” said Charles Miller, a Washington, DC-based spokesperson for the Civil Division of the United States Department of Justice.
Other cases in federal court in San Francisco that are being carefully watched by civil libertarians are Hepting v. AT&T, Al-Haramain v. Obama, Padilla v. Yoo, and Jewel v. the National Security Agency.
The Hunger Site
April 29, 2009 at 6:07 am
At least the release of the torture memos will remind Americans that human torture is not only morally unacceptable – it is also a crime. Unfortunately, too many Americans believe themselves superior to those in other countries and thus, anything we do to protect our country’s national interests, including torture, is somehow justifiable. To these Americans, to believe otherwise, places us in the same company as history’s infamous torturers. Waterboarding, for example, dates back to the Dark Ages. By using torture, we lose any ideological advantage we might have — the promotion of democracy, freedom and human rights. We become the thugs our enemies say we are. I for one applaud the release of the torture memos for it may tweak the American conscience. I also urge those who authorized torture be prosecuted. No one, not even a former president or vice president, is above the law.