By William Fisher
In what may become a landmark decision, a federal appeals court ruled yesterday that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.
The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.
The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).
During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. Yesterday, the appeals court reversed that decision.
But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.
"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said.
Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.
The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.
"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.
"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
He told us that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime. Al-Rawi, now back in the U.K., told Watt, “It’s like winning the lottery.”
Yesterday’s Appeals Court ruling means that the government can assert the “state secrets” privilege for any specific piece of evidence, but not to end a case before it begins.
That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.
The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.
Al-Rawi, an Iraqi citizen and long-term British permanent resident, was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. He was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba. He was imprisoned there for more than four years until his release on March 30, 2007. He returned to his home in London where he currently resides freely. No charges were ever brought against him.
Ethiopian citizen Binyam 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. Then he was once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo. He was released without charge in February and is currently suing the British Government for being complicit with the CIA in his rendition.
Abou Elkassim Britel, an Italian citizen, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents.
In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
In October 2003, Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated. In October 2003, he was turned over to CIA agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base at Bagram, Afghanistan. He was freed in March 2006, having never faced any charges related to terrorism.
Clive Stafford Smith, director of the U.K. legal charity Reprieve, which represents Binyam Mohamed in his British suit, told us, “This is a tremendous step forward in the battle to stop corporations making money off the rendition, torture and suffering of the prisoners we represent.”
He said, “Binyam Mohamed, and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit."
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.
In recent years, the government has asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.
Assertion of the privilege has denied access to U.S. courts in a number of high profile cases, most notably the cases of Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, and whistleblower Sibel Edmonds, a linguist for the Federal Bureau of Investigation (FBI) who charged that national security was being breached at the agency.