One More Shot at Justice

By William Fisher

In a move legal experts are calling unusual, the one-vote court majority that tossed out the lawsuit brought by five men who claim they were tortured under the “extraordinary rendition” program of the U.S. Central Intelligence Agency departed from customary practice in suggesting several other ways the victims might obtain justice.

This departure from the judicial norm is being seen by some as an indication of the extent to which the Ninth Circuit Court of Appeals “was
anguished by the treatment alleged by the plaintiffs,” according to Mike Doyle, legal reporter for McClatchy Newspapers.

Writing in his blog, “Suits and Sentences,” Doyle adds, “Another remarkable aspect of this split decision was the decision by the five dissenters to publish a 58-page appendix, spelling out the publicly available
evidence.”

The suit has gone through several years of litigation before various federal courts. Following yesterday’s narrow dismissal, the case is now headed for the U.S. Supreme Court. It has been more than 50 years since the Supreme Court issued a major ruling on the state secrets privilege.

The case accused Boeing subsidiary Jeppesen DataPlan, Inc. of participating in the Bush administration's “extraordinary rendition program.” Under this program, terrorism suspects are kidnapped from a location, turned over to intelligence services in another country, where they are imprisoned, abused and tortured.

The suit charged that Jeppesen “knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.”

According to published reports cited by the ACLU, “Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed 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 Bush administration intervened in the case, asserting the "state secrets" privilege in an attempt to have the lawsuit thrown out and preventing the evidence – including evidence already in the public domain – from ever heard in court.

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government must invoke the state secrets privilege with respect to specific pieces of evidence – not over an entire lawsuit. The Obama administration, following exactly the same legal reasoning as its predecessor, appealed that ruling, and in December the appeal was heard by an en banc panel of all 11 Ninth Circuit judges. The result was yesterday’s decision.

According to the ACLU, that ruling “all but shuts the door on accountability for the illegal program.” The ACLU intends to seek Supreme Court review of the decision.

The majority decision, written by Judge Raymond Fisher, states, “This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

However, Judge Fisher continued, “That the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice."

The opinion cited reparations made to Japanese-Americans interred during World War II as an example. It also suggested that Congress should investigate the torture allegations, reminded the plaintiffs that Congress has the power to pass private bills aiding individuals, and noted that Congress could also enact remedial legislation.

Ben Wizner, a senior ACLU lawyer who argued the case before the appeals court, said the group was disappointed in the ruling. “The world is watching closely to see whether torture victims will have any possibility of redress in U.S. courts. If the answer is no – if this decision is allowed to stand – then foreign judges and prosecutors will almost certainly reinvigorate their own criminal investigations into illegal U.S. practices,” he told IPS.

He added, “To this date, not a single victim of the Bush administration’s torture program has had his day in court,” he said. “That makes this a sad day not only for the torture survivors who are seeking justice in this case, but for all Americans who care about the rule of law and our nation’s reputation in the world. If this decision stands, the United States will have closed its courts to torture victims while providing complete immunity to their torturers.”

Once little-used, the state secrets doctrine became a favorite tactic of the Bush Administration to keep its national security cases out of court and away from judicial review. In 2007, the Supreme Court declined to hear an appeal of a similar rendition and torture ruling by the federal appeals court in Richmond, Virginia.

According to The New York Times, “The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.”

It added, “The Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program . . . .”

When he was a U.S. Senator from Illinois, and later as a candidate for president, Obama was sharply critical of the Bush administration’s use of the state-secrets privilege. His administration began channeling Bush Administration policies during its first few weeks.

Many view the current actions of the Obama Administration as part of its assertion of increased authority by the Executive Branch of Government.