In a clear rebuke to the Obama Justice Department, the Ninth Circuit reinstates lawsuit brought by former torture victims against Boeing subsidiary involved in the CIA’s “extraordinary rendition” program.
A three judge panel of the Ninth Circuit Court of Appeals yesterday reversed a lower court decision that would have prevented a lawsuit brought by five torture victims from proceeding because the U.S. Government–first under George W. Bush and now under Barack Obama–invoked a “state secret” exemption that would have removed the case, entirely, from the justice system.
The ruling arose in the case of Binyam Mohamed, et al. v. Jeppesen Dataplan, Inc., in which five men, seized by the CIA under its “extraordinary rendition” program, seek to win civil damages against Jeppesen, a Boeing Company subsidiary. Jeppesen, under a CIA contract, flew the detainees to so-called “black sites,” on foreign soil where the men were allegedly subjected to horrific mental and physical abuse. The alleged abuse is vividly described in the complaint and includes severe beatings, electrocution applied to genitals, and multiple scalpel slashes into which “stinging liquids” were poured. It also includes descriptions of alleged mistreatment in U.S. custody including both physical and psychological torture. Three of the detainees were subsequently released.
The complaint alleges that Jeppesen either “actively participated” in forcible 
abduction and conspired in torture, or that it is guilty of “aiding and abetting” the plans, or at least acted with “reckless disregard” as to whether passengers on its flights were being subjected to torture and other “cruel, inhuman, and degrading treatment.”
The plaintiffs have presented a sworn affadavit by a former Jepson employee who states he was told by a top Jeppesen official that “we do all the extraordinary rendition flights,” which were also referred to as the “torture flights.”
New Yorker writer Jane Mayer detailed the existence of the CIA’s “extraordinary rendition” program in a February 2005 article entitled, “Outsourcing Torture.”
The U.S. Government intervened in the Mohamed case on behalf of Jeppesen to argue that the lawsuit was precluded by a “state secrets” claim. Arguing that even hearing the case against Jeppesen would be expected to cause the disclosure of information that “could be expected to cause serious–and in some instances exceptionally grave–damage to the national security of the United States,” the Justice Department persuaded a federal circuit court judge that the case should dismissed outright.
The Mohamed case is one of at three cases in which the Obama Administration has been sharply criticized by civil liberties groups and Wisconsin Senator Russell Feingold for continuing Bush-era “state secret” arguments to kill litigation, even after Obama made government “transparency” a central theme in his campaign for President.
The appeals court was sharply critical as well. It chided Jeppesen and the U.S. Government for misapplying facts and logic by invoking an 1875 case involving a private contract between a the government and a spy. Moreover, it hammered the Justice Department’s “sweeping characterization” of the state secrets exemption from the Supreme Court’s ruling in the 1953 case, United States v. Reynolds.
“At base,” wrote Judge Michael Daly Hawkins, “the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it ‘involves allegations about [secret] conduct by the CIA.’ This sweeping characterization of the ‘very subject matter’ bar has no logical limit–it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. 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.”
“We reject this interpretation of ‘the very subject matter’ concept,” he continued, “not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty ‘to say what the law is,” and the Executive’s constitutional duty “to preserve the national security.”
Within the Reynolds framework, Judge Hawkins wrote, the court has to work very carefully given “the circumstances of the case” to weigh the plaintiff’s need for the evidence against any showing by the government that the evidence is covered by the state secret privilege. Such an exercise, he continued, can only be done on an “item-by-item basis rather than foreclosing litigation at the outset,” which is what Jeppesen and the Justice Department have argued.
“Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct,” Judge Hawkins added, citing the Supreme Court’s 2004 ruling in Rumsfeld v. Hamdan. “As the Founders of the Nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious…act of despotism.’”
Judge Hawkins’s decision also delved into the historically documented instances where the government had invoked secrecy for national security reasons only to later have the facts show that the motivation was not national security but political expediency.
The judge approached this in a section of his opinion responding to the Justice Department’s use of Freedom of Information Act (FOIA) case law to argue that material “classified” by the government to prevent disclosure under FOIA should be considered “secret” within the provisions of the state secrets privilege.
Judge Hawkins: “A rule that categorically equated ‘classified matters with ‘secret’ matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.”
The above clause was tied to a remarkable long footnote explaining how the “abuse of the Nation’s information classification system is not unheard of.” Even in the Reynolds case itself, the footnote recorded, the Court had simply accepted the government’s assertion that the release of the secret accident report on a military plane should be prevented because the report might contain references to secret electronic equipment. Citing a new book by Garry Wills, “Why the Government Can Legally Lie,” the footnote reported that the formerly secret accident report on the crash was eventually declassified in 1996 included no details of any secret project. What it did contain instead “‘was a horror story of incompetence, bungling, and tragic error.’”
The Appeals Court decision remands the Mohamed case back to the district court with instructions for the judge to evaluate any specific claims by the Justice Department that the “state secrets” provision applies.
“We simply can’t resolve whether the Reynolds evidentiary privilege applies,” Judge Hawkins wrote, “without (1) an actual request for discovery of specific evidence, (2) an explanation from plaintiffs of the need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain confidential.”
–CFJ
Postscript April 30th. President Obama was asked by Time Magazine’s Michael Sherer to explain the contradiction between his campaign position on the use of the state secrets privilege and the Justice Department’s position in the Mohamed case and others. This is from the White House transcript of yesterday’s press conference:
Michael Scherer of TIME.
Q Thank you, Mr. President. During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?
THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.
I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.
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