By William Fisher
The state board responsible for licensing – and disciplining -- psychologists in Louisiana is “fighting awfully hard to turn a blind eye to serious allegations of abuse” brought against one of its members, who is being accused of complicity in beatings, religious and sexual humiliation, rape threats and painful body positions during his service as a senior advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
That is the view expressed by Deborah Popowski, cooperating attorney with the Center for Constitutional Rights (CCR), part of the legal team representing Dr. Trudy Bond. Dr. Bond, an Ohio-based psychologist, is suing the Louisiana State Board of Examiners of Psychologists to compel it to investigate the behavior of Louisiana psychologist and retired U.S. Army colonel Dr. Larry C. James, a former high-ranking advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
“We wish the Board would devote its resources to investigating unethical conduct instead. Everyone, including the people of Louisiana, would be better served,” she told us.
The chairperson of the Board, Dr. Jillandra Rovaris, who also chairs the complaints committee, did not respond to telephone calls or emails seeking comment and clarification.
Popowski says that, according to Dr. James’ own statements, he played an influential role in both the policy and day-to-day operations of interrogations and detention at the prison camps. She claims that publicly-available information shows that “while Dr. James was at Guantanamo, abuse in interrogations was widespread, and cruel and inhuman treatment was official policy.”
In February 2008, Dr. Bond filed a complaint against Dr. James before the Board, the agency that issued and now regulates his psychology license. Dr. Bond alleged that Dr. James breached professional ethics by violating psychologists’ duties to do no harm, to protect confidential information and to obtain informed consent, and she called on the Board to investigate whether action should be taken against Dr. James.
Dr. Bond’s lawyers contend that the Board summarily refused to investigate her complaint, claiming that the statute of limitations had run, despite what they say is conclusive information to the contrary. Dr. Bond then filed suit against the Board in Louisiana’s 19th Judicial District Court, which in July 2009 dismissed her case without looking at the merits. Now, in a brief before the First Circuit Court in Baton Rouge, Dr. Bond argues that the District Court should have reviewed the Board’s “clearly wrong legal decision.”
Said Dr. Bond, “The five psychologists on the Louisiana Board were given plenty of credible evidence, but they chose not to investigate the head intelligence psychologist of prison camps notorious for their use of psychological torture. I don’t think Louisiana lawmakers intended to give five fellow professionals total, unchecked power to make arbitrary decisions that deeply affect the public welfare.”
Dr. Bond told us, “I began reading of the role of psychologists at detention sites such as Guantanamo and was horrified when the American Psychological Association, by way of the infamous PENS report in 2005, determined that the actions of the BSCT psychologists were ethical.”
She added, “In his biographical statement for the PENS report, Larry James stated that he was the ‘Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba’ starting in January 2003. When the Camp Delta Standard Operating Procedure Manual (dated February, 2003 and implemented March 27, 2003) was released in November of 2007 and included behavioral management of prisoners that violated our psychological ethics codes, that same ethics code required that I report such violations to the licensing board to be investigated. My complaint to the Louisiana Board of Psychologists was dated 2/29/08.”
Allegations of abuse during Dr. James’s January to May 2003 deployment include beatings, religious and sexual humiliation, rape threats and painful body positions.
Canadian citizen Omar Khadr, who is still imprisoned in Guantanamo, is one of the prisoners who has alleged brutal treatment in the spring of 2003, when he was only 16 years old.
Khadr was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan. He has spent seven years in the Guantanamo Bay detention camps charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.
A Canadian citizen born in Toronto, he is the youngest prisoner held in the Guantanamo Bay detention camp by the United States and has been frequently referred to as a child soldier. In April 2009, the Federal Court of Canada ruled that the Canadian Charter of Human Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court is expected to hear the case next month.
Dr. James was also stationed in Iraq’s Abu Ghraib prison in 2004 and returned to Guantanamo in 2007. In 2008, he was named Dean of the School of Professional Psychology at Wright State University in Dayton, Ohio.
The CCR says that, as Chief Psychologist of the Joint Intelligence Group and a senior member of the Behavioral Science Consultation Team (BSCT) at Guantanamo, Dr. James had access to the confidential medical records of people he was charged with exploiting for intelligence.
It adds that, according to former Guantanamo interrogators, BSCTs used information from patients’ records to help interrogators increase the patients’
psychological duress, including by exploiting their fears. The very purpose of these mental health professional teams, the interrogators said, was to help
“break” the prisoners. Dr. James denies that claim, but an extensive government paper trail supports the interrogators’ accounts, the organization contends.
The so-called “Biscuit Teams” have sparked controversy ever since their existence became public. The actions taken by team members have called into question the appropriate behavior for physicians, psychologists and other health care professionals who are team members.
The taken by the CCR is, “Despite their universally recognized duty to do no harm, doctors and psychologists have played a key role in the United States government’s policy of torture in its overseas prisons. Some have crafted and justified torture tactics, inflicted pain, overseen abuse and enabled and covered up cruel treatment.”
The group adds, “Freedom of Information Act litigation and a U.S. Senate Armed Services Committee (SASC) inquiry into the treatment of detainees have yielded shed light on the specific role of military intelligence psychologists and psychiatrists at the Guantánamo Bay detention center in Cuba. The names and licensing information of several individuals who may have been involved in prisoner abuse are publicly known. Yet, when presented with credible information that licensees within their jurisdiction may have committed gross breaches of ethics, state licensing boards have refused to take action. To date, not one health professional has been held accountable for their role in torture.”
Monday, November 02, 2009
Justice Delayed…
By William Fisher
The long road to the proverbial “day in court” just got longer for five men who claim they were ‘disappeared’ and tortured by the U.S. Central Intelligence Agency.
The men, who say they were victims of the ‘extraordinary rendition’ program conducted during the administration of President George W. Bush, have been trying since 2007 to get their cases heard on the merits.
But it is now far from clear that the merits of these cases will heard any time soon – if ever. The reason is that the Department of Justice – first through Bush Administration lawyers, now through Obama Administration lawyers -- has invoked the so-called ‘state secrets’ privilege, claiming that a public trial would endanger U.S. national security.
The latest development in the case came last week, when the Ninth Circuit Court of Appeals set aside an earlier ruling by three of its own judges and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. The request to rehear the case, now scheduled for December 15, came from the Obama Administration.
That decision put on hold the earlier findings of the three-judge panel, which had reinstated the Mohamed suit in April. That 3-0 ruling rejected arguments by the Bush and Obama administrations that the case concerned secrets too sensitive to disclose in court.
In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller – involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence-sharing among allies if the abuse was publicly disclosed.
The case is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident who, while in CIA custody in 2002, 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.
In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, from which he was released without charge in February.
The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to “render” terror suspects to countries where they were disappeared and tortured.
A Council of Europe report in 2007 described Jeppesen as the CIA's aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights." And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
The three-judge appeals court panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. The judges said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."
Ben Wizner, an attorney with the American Civil Liberties Union (ACLU), which represents the plaintiffs, told us, “Much is at stake in this case. If the CIA's overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
He said he was "disappointed that the Obama administration continues to stand in the way of torture victims having their day in court."
He added, "This case is not about secrecy. It's about immunity from accountability."
"We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a ‘state secret.' In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law," Wizner said.
The fear is that the 11-judge appeals court panel may agree with the DOJ that disclosure in a trial in a public courtroom would compromise national security. Then, the five petitioners would probably ask the U.S. Supreme Court to review the case – an action the government too would probably take if it lost in the appeals court. If the high court declined to hear the case, that would be the end of the legal road for Mohamed and his co-plaintiffs.
Wizner told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."
The San Francisco Chronicle is reporting that six of its 27 judges have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.
Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American Civil Liberties Union's executive director in Southern California, also disqualified himself. The ACLU represents the plaintiffs in the case.
Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.
Binyam Mohammed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the U.K. He claims that up until the time of his release, he was being asked to agree to a no-disclosure agreement in return for charges not being brought against him.
The position taken by the new administration of President Obama took ACLU lawyers by surprise. In their presentation to the Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that the lawsuit brought on behalf of Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security.
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, then only recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
But that appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, Leon Panetta, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.
In the past, the U.S. has received “diplomatic assurances” from countries on the receiving end of the extraordinary rendition trips that their new “guests” would not be tortured. These assurances have proved to be demonstrably worthless.
The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K. But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But the U.S State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
In the latest ruling from the U.K., the British High Court found that while Mohamed, a British resident, was in American custody, the CIA told British intelligence agents how he was being treated. British agents then wrote memos to record what they were told. Last year, the High Court ruled that Mohamed -- who was then at Guantanamo -- had the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-product of coercion.
The High Court's original ruling in Mohamed's favor contained seven paragraphs which described the torture to which Mohamed was subjected.
The ACLU has written to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security.
Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.
Ironically, in what is believed to be the first use of the state secrets privilege, it was invoked to cover up a falsehood. In a 1953 case known as United States v. Reynolds, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. Rather, they contained information about the poor condition of the aircraft itself, which would have compromised to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.
Meanwhile, Congress is being pressured to seriously consider legislation to limit the use of the state secrets defense. Major civil rights and open government organizations have written to leaders of the House and Senate Judiciary Committees urging them to pass legislation to restrict the government’s ability to use the privilege to dismiss litigation charging government wrongdoing.
Although the Obama administration yesterday announced a new policy in which it essentially promised to use of the state secrets privilege more sparingly, that promise is not good enough, the organizations wrote.
“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.
However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”
The seven organizations which signed the letter include the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.
The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).
In addition to Mohamed, the four other appellants in the Jeppesen case include:
• Italian citizen Abou Elkassim Britel, who In May 2002, 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 and where he is now incarcerated.
• Egyptian citizen Ahmed Agiza, who In December 2001, 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.
• Mohamed Farag Ahmad Bashmilah was taken into custody in October 2003 by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.
• Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped in November 2002 and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi 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 in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely.
No charges have ever been brought against him.
The long road to the proverbial “day in court” just got longer for five men who claim they were ‘disappeared’ and tortured by the U.S. Central Intelligence Agency.
The men, who say they were victims of the ‘extraordinary rendition’ program conducted during the administration of President George W. Bush, have been trying since 2007 to get their cases heard on the merits.
But it is now far from clear that the merits of these cases will heard any time soon – if ever. The reason is that the Department of Justice – first through Bush Administration lawyers, now through Obama Administration lawyers -- has invoked the so-called ‘state secrets’ privilege, claiming that a public trial would endanger U.S. national security.
The latest development in the case came last week, when the Ninth Circuit Court of Appeals set aside an earlier ruling by three of its own judges and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. The request to rehear the case, now scheduled for December 15, came from the Obama Administration.
That decision put on hold the earlier findings of the three-judge panel, which had reinstated the Mohamed suit in April. That 3-0 ruling rejected arguments by the Bush and Obama administrations that the case concerned secrets too sensitive to disclose in court.
In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller – involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence-sharing among allies if the abuse was publicly disclosed.
The case is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident who, while in CIA custody in 2002, 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.
In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, from which he was released without charge in February.
The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to “render” terror suspects to countries where they were disappeared and tortured.
A Council of Europe report in 2007 described Jeppesen as the CIA's aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights." And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
The three-judge appeals court panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. The judges said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."
Ben Wizner, an attorney with the American Civil Liberties Union (ACLU), which represents the plaintiffs, told us, “Much is at stake in this case. If the CIA's overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
He said he was "disappointed that the Obama administration continues to stand in the way of torture victims having their day in court."
He added, "This case is not about secrecy. It's about immunity from accountability."
"We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a ‘state secret.' In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law," Wizner said.
The fear is that the 11-judge appeals court panel may agree with the DOJ that disclosure in a trial in a public courtroom would compromise national security. Then, the five petitioners would probably ask the U.S. Supreme Court to review the case – an action the government too would probably take if it lost in the appeals court. If the high court declined to hear the case, that would be the end of the legal road for Mohamed and his co-plaintiffs.
Wizner told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."
The San Francisco Chronicle is reporting that six of its 27 judges have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.
Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American Civil Liberties Union's executive director in Southern California, also disqualified himself. The ACLU represents the plaintiffs in the case.
Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.
Binyam Mohammed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the U.K. He claims that up until the time of his release, he was being asked to agree to a no-disclosure agreement in return for charges not being brought against him.
The position taken by the new administration of President Obama took ACLU lawyers by surprise. In their presentation to the Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that the lawsuit brought on behalf of Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security.
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, then only recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
But that appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, Leon Panetta, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.
In the past, the U.S. has received “diplomatic assurances” from countries on the receiving end of the extraordinary rendition trips that their new “guests” would not be tortured. These assurances have proved to be demonstrably worthless.
The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K. But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But the U.S State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
In the latest ruling from the U.K., the British High Court found that while Mohamed, a British resident, was in American custody, the CIA told British intelligence agents how he was being treated. British agents then wrote memos to record what they were told. Last year, the High Court ruled that Mohamed -- who was then at Guantanamo -- had the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-product of coercion.
The High Court's original ruling in Mohamed's favor contained seven paragraphs which described the torture to which Mohamed was subjected.
The ACLU has written to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security.
Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.
Ironically, in what is believed to be the first use of the state secrets privilege, it was invoked to cover up a falsehood. In a 1953 case known as United States v. Reynolds, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. Rather, they contained information about the poor condition of the aircraft itself, which would have compromised to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.
Meanwhile, Congress is being pressured to seriously consider legislation to limit the use of the state secrets defense. Major civil rights and open government organizations have written to leaders of the House and Senate Judiciary Committees urging them to pass legislation to restrict the government’s ability to use the privilege to dismiss litigation charging government wrongdoing.
Although the Obama administration yesterday announced a new policy in which it essentially promised to use of the state secrets privilege more sparingly, that promise is not good enough, the organizations wrote.
“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.
However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”
The seven organizations which signed the letter include the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.
The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).
In addition to Mohamed, the four other appellants in the Jeppesen case include:
• Italian citizen Abou Elkassim Britel, who In May 2002, 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 and where he is now incarcerated.
• Egyptian citizen Ahmed Agiza, who In December 2001, 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.
• Mohamed Farag Ahmad Bashmilah was taken into custody in October 2003 by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.
• Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped in November 2002 and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi 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 in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely.
No charges have ever been brought against him.
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