Bob Egelko / San Francisco Chronicle & The New York Times – 2010-09-11 00:37:23
Court Dismisses Suit Alleging ‘Torture Flights’
Bob Egelko / San Francisco Chronicle
SAN FRANCISCO (September 9, 2010) — Torn between claims of national security and pleas for redress for torture victims, a federal appeals court reluctantly dismissed a lawsuit Wednesday accusing a Bay Area aviation-planning company of arranging CIA flights of suspected terrorists to overseas dungeons.
Although much of the so-called extraordinary rendition program has been publicly disclosed, including the alleged role of Jeppesen Dataplan of San Jose, allowing the suit to proceed “would present an unacceptable risk of disclosing state secrets,” the Ninth US Circuit Court of Appeals in San Francisco said in a 6-5 ruling.
The ruling is a victory for both President George W. Bush’s administration, which directed the rendition program and acknowledged its existence, and the Obama administration, which promised to curb the program’s excesses but argued that it was too sensitive to be litigated in court.
The American Civil Liberties Union said it would appeal to the Supreme Court. The high court has refused to review two rulings by other appeals courts dismissing suits against the government by men who said they were abducted by the CIA and flown to foreign torture chambers.
“Not a single victim of the Bush administration’s torture program has had his day in court,” ACLU lawyer Ben Wizner said.
The Justice Department emphasized that the Obama administration limited government invocations of secrecy in court last year by requiring a department committee to review all such claims, with Attorney General Eric Holder having the last word.
The policy is meant to “ensure that the state-secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case,” said department spokesman Matthew Miller.
Extraordinary rendition is the practice of abducting suspected terrorists and taking them for interrogation to CIA prisons or foreign countries, including nations that the United States has condemned as human rights violators. The Bush administration said it always insisted on a guarantee that the prisoner would not be tortured.
Jeppesen, a Boeing Co. subsidiary, was described in a 2007 Council of Europe report as the CIA’s aviation services provider. In a court declaration in the current suit, a company employee quoted a director as telling staff members in 2006 that Jeppesen handled the CIA’s “torture flights.”
The five plaintiffs accused the company of arranging their flights to foreign or CIA prisons, where they said they had been interrogated brutally. Two of the men are still being held in Egypt and Morocco, while the others have been released without US charges.
Wednesday’s ruling overturned an April 2009 decision by a three-judge appeals court panel that reinstated the suit. After a hearing that included a closed-door session with a government lawyer, and a private review of classified documents, the court majority said key elements of the case — such as Jeppesen’s alleged relationship with the CIA — could not be examined without compromising US security.
Judge Raymond Fisher wrote in the majority opinion that he could not publicly discuss the reasons for the court’s conclusion, but was satisfied that the government was not invoking secrecy to “avoid embarrassment.”
Fisher also said the plaintiffs could seek reparations from the administration or aid from Congress.
Dissenting Judge Michael Hawkins said the courts should decide legal disputes rather than “permitting the executive to police its own errors.” He also said the court should have kept the case alive and required the government to show why specific evidence should remain secret.
The ruling can be read at sfgate.com/ZKGQ.
Â© 2010 Hearst Communications Inc.
Torture Is a Crime, Not a Secret
Editorial / The New York Times
(September 8, 2010) — Five men who say the Bush administration sent them to other countries to be tortured had a chance to be the first ones to have torture claims heard in court. But because the Obama administration decided to adopt the Bush administration’s claim that hearing the case would divulge state secrets, the men’s lawsuit was tossed out on Wednesday by the full United States Court of Appeals for the Ninth Circuit. The decision diminishes any hope that this odious practice will finally receive the legal label it deserves: a violation of international law.
The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan, that the plaintiffs said had arranged the rendition flights that took them to Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed, had his bones broken in Morocco, where security agents also cut his skin with a scalpel and poured a stinging liquid into his wounds.
But the merits of the case were never considered because the Bush administration argued that even discussing the matter in court would violate the state secrets privilege. Barack Obama told voters in 2008 that he opposed the government cult of secrecy, but once he became president, his Justice Department also argued that the case should be dismissed on secrecy grounds.
The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and overturn a decision to let it proceed that was made by a panel of three circuit judges last year.
The majority said it reached its decision reluctantly and was not trying to send a signal that secrecy could be used regularly to dismiss lawsuits. But even though it is public knowledge that Jeppesen arranged the torture flights, the majority said any effort by the company to defend itself would pose “an unacceptable risk of disclosure of state secrets.”
That notion was demolished by the five-judge minority that dissented from the ruling, pointing out that the plaintiffs were never even given a chance to make their case in court using nonsecret evidence, including a sworn statement by a former Jeppesen employee about the company’s role in what he called “the torture flights.” The case should have been sent back to the district court to examine which evidence was truly secret; now it will have to be appealed to a Supreme Court that is unlikely to be sympathetic to the plaintiffs.
The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.”
All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.
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