Interrogation Memos Provide Further Reason to Give Torture Victims Day in Court, Says ACLU

The
American Civil Liberties Union today alerted a California federal
appellate court that the government's assertion of the "state secrets"
privilege in an extraordinary rendition case has even less merit given
last week's Justice Department release of four "torture memos."

In a letter sent to the U.S. Court
of Appeals for the Ninth Circuit today, the ACLU asserted that the
recently released memos graphically describe several illegal
interrogation techniques that were used by the CIA against some of the
plaintiffs in its lawsuit against Boeing subsidiary Jeppesen DataPlan,
Inc. for its role in the CIA's extraordinary rendition program. The
government intervened and halted that case asserting "state secrets,"
relying upon former CIA Director Michael Hayden's declaration that
disclosing specific interrogation techniques "would degrade the
effectiveness of the United States' intelligence gathering activities
by ... providing terrorists information about interrogation methods."

"That rationale no longer exists,
because the methods are now public, and because they have been
expressly prohibited," said Ben Wizner, ACLU National Security Project
attorney, in today's letter. "A program that does not exist cannot be
'degraded' by disclosures of information that is already public."

The case, Mohamed et al. v. Jeppesen,
is now on appeal. Because of the government's overbroad and improper
use of the state secrets privilege, no CIA torture victim yet has had
his day in court.

"The CIA and its contractors have
used false claims of secrecy to avoid any judicial scrutiny for grave
human rights violations," said Wizner. "The notion that the
extraordinary rendition program could be discussed everywhere in the
world except in a U.S. courtroom has always been absurd. Now that the
CIA's detention and torture program has been publicly confirmed and
officially terminated, there is no basis whatsoever for denying its
victims their day in court."

A full copy of the letter is shown below and available online at: www.aclu.org/safefree/torture/39407res20090421.html

More information on the ACLU's extraordinary rendition case against Jeppesen DataPlan is available online at: www.aclu.org/safefree/torture/29921res20070530.html

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April 21, 2009

Molly Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939

Re: Mohamed et al v. Jeppesen Dataplan, Inc., No. 08-15693 (argued February 9, 2009)

Dear Ms. Dwyer:

Plaintiffs-Appellants submit
this letter pursuant to Federal Rule of Appellate Procedure 28(j), to
advise the Court of supplemental authority that bears directly on the
issues on appeal.

On April 16, 2009, President
Obama declassified four legal memoranda prepared by the Department of
Justice's Office of Legal Counsel that purported to authorize the CIA's
use of abusive interrogation techniques. (The four memos are available
at www.aclu.org/olcmemos.)
The memos confirm the CIA's use of a range of coercive techniques,
including prolonged sleep deprivation, forced nudity, dietary
manipulation, and stress positions, as well as specific techniques used
to set the "initial conditions" for interrogation through preparation
and flight to CIA facilities. These techniques were employed by U.S.
personnel against some of the plaintiffs in this litigation.

The government's invocation of
the state secrets privilege in this case is predicated on an October
18, 2007 declaration by former CIA Director Michael Hayden. General
Hayden's declaration asserts that, "[w]hile the President [Bush]
acknowledged the existence of
the CIA terrorist detention and interrogation program, the details of
the program remain highly classified." Hayden Decl. P 9 n.4, ER 738.
General Hayden insisted that disclosing specific interrogation
techniques "would degrade the effectiveness of the United States'
intelligence gathering activities by, for example, providing terrorists
information about interrogation methods that would assist their
interrogation resistance programs." Id. at P 24, ER 748.

That rationale no longer exists,
because the methods are now public, and because they have been
expressly prohibited. As President Obama explained upon
declassification of the memos:

First, the interrogation
techniques described in these memos have already been widely reported.
Second, the previous Administration publicly acknowledged portions of
the program - and some of the practices - associated with these memos.
Third, I have already ended the techniques described in the memos
through an Executive Order. Therefore, withholding these memos would
only serve to deny facts that have been in the public domain for some
time.

Statement of President Barack Obama on Release of OLC Memos, April 16, 2009, available at https://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Release-of-OLC-Memos/.
Indeed, the Executive Order issued by President Obama not only
prohibited abusive interrogation techniques; it also directed that the
"CIA shall close as expeditiously as possible any detention facilities
that it currently operates and shall not operate any such detention
facility in the future." Exec. Ord. 13,491, 74 Fed. Reg. 4893 (Jan 22,
2009). A program that does not exist cannot be "degraded" by
disclosures of information that is already public.

Respectfully submitted,

Ben Wizner
Counsel for Plaintiffs-Appellants

cc: Douglas Letter
Michael P. Abate
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave., NW, Room 7318
Washington, DC 20530

Daniel P. Collins
Munger, Tolles & Olson LLP
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071-1560