Shhhhhh…It’s Still a (State) Secret

By William Fisher

“My Administration is also confronting challenges to what is known as the ‘State Secrets’ privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government.”

Thus spoke President Obama in his national security speech last week.

Which makes an odd coincidence ever odder. The odder coincidence is that in the same week as the President was arguing for more transparency in government and railing against the idea of protecting information “merely because it reveals the violation of a law or embarrasses the government” – he was invoking it yet again.

In a bid to squelch a U.K. court case involving alleged British complicity with the CIA in the rendition, imprisonment and torture of a British resident, the Foreign Office presented a letter urging continuing secrecy from – yes, you guessed it -- the Obama Administration.

From an ‘unnamed official’ in the Obama Administration.

The Foreign Office refused to disclose to the British High Court judges who the letter was from or to whom it was written, to say nothing of its contents, which were heavily redacted. The Foreign Office refused to explain why. They simply said their reasons for secrecy must also remain suppressed.

Here’s the back-story:

In 2002, an Ethiopian citizen and British resident named Binyam Mohamed became one of the CIA’s “frequent flyers.” He was arrested in Pakistan, allegedly 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 allegedly 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. He was eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo.

Mohamed was released from GITMO in February 2009, while he was on a hunger strike. He claims he was offered his freedom earlier if he agreed to confess to terror-related crimes. He refused.

He is currently attempting to sue the British Government, and specifically its intelligence service, MI5, for being complicit with the CIA in helping to facilitate his rendition.

When Mohamed’s case first came to the British courts, British Foreign Secretary David Miliband said the U.S. threatened to stop sharing intelligence with the Brits if details of the case were to be disclosed. He later denied there was any such threat.

But by this time, the case had caused a firestorm in Britain, with the Loyal Opposition accusing the government of doing a great job of living up to its caricature of being America’s poodle.

The British High Court judges were equally outraged. They said the refusal by U.S. to disclose evidence that could prove a British resident held at Guantánamo Bay was tortured was"deeply disturbing."

The court said there was "no rational basis" for the American failure to reveal the contents of documents essential to the Mohamed’s defense.

In a particularly damning passage, Lord Justice Thomas and Justice Lloyd Jones said the documents provided the "only independent evidence" capable of helping Mohamed and his defence. Suppressing the material "would be to deny him the opportunity of timely justice in respect of the charges against him," which was a principle dating back to "at least the time of Magna Carta and which is a basic part of our common law and of democratic values."

The Court ordered the British Government to turn over 42 documents, which it has thus far largely failed to do. When Mohamed’s lawyer, Clive Stafford Smith, pressed the issue by going back to Court for another hearing, Miliband’s lawyers continued to oppose disclosing any documents that might reveal the extent of U.K. government complicity in Mohamed’s treatment.

There will be another hearing in about a month, at which time the judges will finally decide whether Mohamed’s suit can go forward.

Stafford Smith says, “This official secrecy is becoming increasingly ridiculous, and way out of line with what the public expects from their democratically elected government.”

“The British people rightly expect to be able hold their government accountable for any wrongdoing, and this deliberate secrecy is preventing them from doing that. If this letter truly represents the view of the Obama Administration, why not reveal the author? Why are both governments so afraid of basic transparency in this matter?”

Why indeed?

The back-story gets even more complicated.

In 2007, the American Civil Liberties Union filed a lawsuit in the U.S. on behalf of five men, including Mohamed, who claimed they were victims of rendition, torture and imprisonment without charge.

The suit charged that a company known as Jeppesen Dataplan, a Boeing subsidiary, helped the CIA to facilitate the renditions by providing it with support and logistical services. It charged that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to CIA aircraft and crews.

Lawyers for the Bush Administration intervened in the case in 2007, invoking the so-called “state secrets privilege.” It argued that the suit could not go forward because it would involve presenting evidence that would compromise U.S. national security. The court agreed, and halted the suit.

The case bounced around on appeal until 2008, when the Ninth Circuit Court of Appeals heard arguments for and against going forward with the suit. Human rights advocates were shocked when Obama Justice Department lawyers declined to change the Bush-era position and followed the same road as its predecessor.

But the appeals court disagreed. In what may yet become a landmark decision, the judges finally ruled that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, not to dismiss an entire suit.

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.

Following the Appeals Court decision, Ben Wizner, a staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs, told me, "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.”

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 U.S. 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.

Meanwhile, as the Binyam Mohamed fire continues to burn out of control in the U.K., the Obama Administration is nearing completion of its review of use of the State Secrets practice. Obama says, “I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.”

The importance of telling us – and the British High Court – took on added significance yesterday, thanks to a Sunday New York Times piece by Eric Schmitt and Mark Mazzetti desribing how the U. S. is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan.

Obama continues to insist that “we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable.”

Well, I would say the Binyam Mohamed story is about as uncomfortable as it gets. It’s time for the President to fess up. That will be change we can believe in.