By One Vote, US Court OKs Torture and "Extraordinary Rendition"

Sometimes a story is so troubling that it takes some time to digest,
and the ruling delivered last Wednesday by the Ninth Circuit Court of
Appeals (PDF), in a lawsuit filed by the ACLU on behalf of five men subjected to "extraordinary rendition" and torture, is one such story. The men -- Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi
-- claim, with some justification, and with copious amounts of evidence
in their possession, that their rendition, and their torture in a
variety of countries, was facilitated by Jeppesen Dataplan, Inc., a
subsidiary of Boeing whose role as "The CIA's Travel Agent" was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.

In statements that were later submitted to the court, Sean Belcher, a
former employee, said that the director of Jeppesen International Trip
Planning Services, Bob Overby, had told him, "We do all the
extraordinary rendition flights," which he also referred to as "the
torture flights" or "spook flights." Belcher stated that "there were
some employees who were not comfortable with that aspect of Jeppesen's
business" because they knew "some of these flights end up" with the
passengers being tortured, but added that Overby had explained, "that's
just the way it is, we're doing them" because "the rendition flights
paid very well."

Last Wednesday, however, when asked to rule on whether these five men
should have their day in court, or whether the government should be
allowed to dismiss their lawsuit by claiming that the exposure of any
information relating to "extraordinary rendition" and torture threatened
the national security of the United States, American justice
contemplated looking at itself squarely in the mirror, telling truth to
power, and allowing these men the opportunity to address what had
happened to them in a court of law, but, at the last minute, flinched
and turned away. By six votes to five, the Court decided that, in the
interests of national security, the men's day in court would be denied.

As Judge Raymond C. Fisher stated in the majority opinion (in which
he was joined by Chief Judge Alex Kozinski, and Judges Richard C.
Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea):

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. On those rare occasions, we are
bound to follow the Supreme Court's admonition that "even the most
compelling necessity cannot overcome the claim of privilege if the court
is ultimately satisfied that [state] secrets are at stake." After much
deliberation, we reluctantly conclude this is such a case, and the
plaintiffs' action must be dismissed.

This is an extraordinarily depressing result, because the Jeppesen case, which had been dismissed by the District Court in 2008,
had then been won on appeal before three judges in the Ninth Circuit
Court of Appeals in April 2009. On that occasion the judges in question --
Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby,
Jr. -- had thoroughly demolished the government's claim -- first submitted
by the Bush administration, and then, to the judges' great surprise,
slavishly copied by President Obama's Justice Department -- that it could
dismiss the case by invoking the "state secrets" doctrine.

Unlike last Wednesday, when the majority agreed with the government
regarding the "state secrets" doctrine, the panel of judges in April
2009 had no hesitation, in reviewing what they described as the
"relatively thin history" of the doctrine, in dismissing the
government's reliance on two precedents because of their irrelevance to
the Jeppesen case. One, Totten v. United States, involved a secret agreement between the government and a spy in the nineteenth century, and the other,United States v. Reynolds, from 1953, dealt with the prevention of "discovery of secret evidence when disclosure would threaten national security."

As I explained in an article at the time:

[The judges, in an opinion written by Judge Hawkins] did
this first by pinpointing the "clear error" the District Court made when
it initially dismissed the case, when the court declared, "inasmuch as
the case involves 'allegations' about the conduct of the CIA, the
privilege is invoked to protect information which is properly the
subject of state secrets privilege," and also declared that "the very
subject matter of this case is a state secret." In contrast, the Appeals
Court judges insisted that "The subject matter ... is not a state secret,
and the case should not have been dismissed at the outset."

Dismissing the government's arguments, they concluded that, although
the government may be entitled to protect certain evidence in the
interests of national security, it has no justification for suppressing
judicial scrutiny of the case as a whole, particularly because some
information relating to the case is already publicly available, and also
because what the government is actually trying to do, with no legal
precedent whatsoever, is to impose a blanket ban on all discussion of
potential government wrongdoing.

In a particularly powerful passage, Judge Hawkins stated:

At base, the government argues ... 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 US citizens, not just foreign
nationals; and to secret conduct committed on US 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 (emphasis added).

Elsewhere, as I also explained:

[T]he judges drew on Boumediene [v. Bush,
the 2008 ruling granting the Guantanamo prisoners constitutionally
guaranteed habeas corpus rights], in which the Supreme Court stated
that, while "[s]ecurity depends upon a sophisticated intelligence
apparatus," it "subsists, too, in fidelity to freedom's first principles
[including] freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by the adherence to the separation of
powers." They also drew on Hamdi v. Rumsfeld,
another important Guantanamo case in the Supreme Court (in 2004), in
which the justices stated, "Separation-of-powers concerns take on an
especially important role in the context of secret Executive conduct. As
the Founders of this nation knew well, arbitrary imprisonment and
torture under any circumstance is a 'gross and notorious ... act of
despotism.'"

I was also particularly impressed by the following passage:

If the simple fact that information is classified were
enough to bring evidence containing that evidence within the scope of
the [state secrets] privilege, then the entire state secrets inquiry --
from determining which matters are secret to which disclosures pose a
threat to national security -- would fall exclusively to the Executive
branch, in plain contravention of the Supreme Court's admonition that
"[j]udicial control over the evidence in a case cannot be abdicated to
the caprice of executive officers" without "lead[ing] to intolerable
abuses." ... 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.

As I also explained:

What was notable about this passage was that it
succinctly encapsulated the entire approach to "classified" information
that was maintained by the Bush administration, and also mentioned
invoking national security to prevent embarrassment -- or, it could be
said, to prevent the disclosure of crimes.

Sixteen months on, it is clear from reviewing Judge Hawkins' opinion
that nothing has fundamentally changed, and that therefore the majority
that prevailed last week has simply repeated the "clear error" the
District Court made when it initially dismissed the case, and has
endorsed the President's right to "classify politically embarrassing
information simply to place it beyond the reach of judicial process,"
albeit with more obvious hand-wringing.

If justice does still mean anything under the cowardly Obama
administration, then the Jeppesen case will proceed to the Supreme
Court, although, since Justice John Paul Stevens retired (PDF),
there is no longer much hope for justice there either. Justice Stevens'
replacement, Obama's former Solicitor General Elena Kagan, is contaminated by her involvement
in national security arguments on behalf of her former boss, and will
have to recuse herself from anything touching on the Bush
administration's toxic legacy. As a result, the Supreme Court is likely
to split 4-4 on issues like the Jeppesen case, handing victory back to
the senior administration officials who so desperately crave blanket immunity for the Bush administration's torturers.

This is a profoundly depressing thought, especially as so many
commentators have expressed their disgust at last week's ruling. In an
editorial entitled, "Torture Is a Crime, Not a Secret," the New York Times
lamented, "The decision diminishes any hope that this odious practice
["extraordinary rendition"] will finally receive the legal label it
deserves: a violation of international law," and the Los Angeles Times
declared, "The decision to short-circuit the trial process is more than
a misreading of the law; it's an egregious miscarriage of justice.
That's obvious from a perusal of the plaintiffs' complaint. One said
that while he was imprisoned in Egypt, electrodes were attached to his
earlobes, nipples and genitals. A second, held in Morocco, said he was
beaten, denied food and threatened with sexual torture and castration. A
third claimed that his Moroccan captors broke his bones and cut him
with a scalpel all over his body, and poured hot, stinging liquid into
his open wounds."

For the ACLU, Ben Wizner stated:

This is a sad day not only for the torture victims whose
attempt to seek justice has been extinguished, but for all Americans who
care about the rule of law and our nation's reputation in the world. To
date, not a single victim of the Bush administration's torture program
has had his day in court. If today's decision is allowed to stand, the
United States will have closed its courtroom doors to torture victims
while providing complete immunity to their torturers. The torture
architects and their enablers may have escaped the judgment of this
court, but they will not escape the judgment of history.

Moreover, on Monday, Scott Horton of Harper's Magazine not only pointed out that the facts of the case "were established beyond any reasonable doubt without the need to turn to classified information," but also reminded readers that, "Under the International Convention for the Protection of All Persons from Enforced Disappearance,
which adopts the position that the US Justice Department took in 1946,
the crime of disappearance connected to torture is a crime against
humanity, with no statute of limitations and no defense of superior
orders applicable." Horton also reminded readers that, by signing the UN Convention Against Torture
in 1987, the United States "made an unequivocal commitment to the
international community to compensate those who are tortured by its
agents" -- and also, it should be noted, to bring the perpetrators to
justice.

In addition, Horton pointed out that, in February this year, the Court of Appeal in London, which "had already viewed the formidable evidence"
in Binyam Mohamed's case, had brought to an end 18 months of
Obama-style stonewalling by foreign secretary David Miliband regarding
British knowledge of Mohamed's torture by US agents, and had ordered the information to be publicly released, leading to a criminal investigation, which is ongoing, and, with a change of government, the announcement of a judicial inquiry into British complicity in torture
-- something that many of Obama's supporters had hoped would happen in
the US. As Horton explained, "The British court concluded, just as the
Ninth Circuit was legally obligated to do, that state-secrecy claims
could not be used to block discovery of evidence of crimes."

Horton also explained that, although the position taken by Eric
Holder's Justice Department -- that it is "protecting state secrets
essential to our security" -- is "risible, and half of the court saw
through it," what is really at stake is the possibility that evidence
produced in the US could be used elsewhere. As he stated:

Twenty-three US agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants
for a further 13 US agents involved in a botched rendition case that
touched on Spanish soil. Prosecutors in Germany have opened a criminal
investigation into the use of Ramstein [Air Force Base] in connection
with torture and illegal kidnappings. Prosecutors in Poland
are pursuing a similar matter. And Prime Minister David Cameron was
recently forced to brief President Obama on his decision to direct a
formal inquiry which could lead to prosecutions tied directly to the
subject matter of the Mohamed case. This is the remarkable
background to the case decided by the Ninth Circuit, and remarkably not a
single word about this appears anywhere in the opinion -- or even in
most of the press accounts about it.

While we wait to see what -- if anything -- happens next, I'd like to
leave you with some sensible words regarding the legitimate scope of the
"state secrets" doctrine, as written by Judge Hawkins in the opening
paragraphs of his dissenting opinion last week, in which he was again
joined by Judges Schroeder and Canby, and also by Judges Sidney R.
Thomas and Richard A. Paez:

The majority dismisses the case in its entirety before
Jeppesen has even filed an answer to Plaintiffs' complaint. Outside of
the narrow Totten context, the state secrets privilege has
never applied to prevent parties from litigating the truth or falsity of
allegations, or facts, or information simply because the government
regards the truth or falsity of the allegations to be secret. Within the
Reynolds framework, dismissal is justified if and only if
specific privileged evidence is itself indispensable to establishing
either the truth of the plaintiffs' allegations or a valid defense that
would otherwise be available to the defendant.

This is important, because an approach that focuses on specific
evidence after issues are joined has the benefit of confining the
operation of the state secrets doctrine so that it will sweep no more
broadly than clearly necessary. The state secrets doctrine is a judicial
construct without foundation in the Constitution, yet its application
often trumps what we ordinarily consider to be due process of law. This
case now presents a classic illustration. Plaintiffs have alleged facts,
which must be taken as true for purposes of a motion to dismiss, that
any reasonable person would agree to be gross violations of the norms of
international law, remediable under the Alien Tort Statute.
They have alleged in detail Jeppesen's complicity or recklessness in
participating in these violations. The government intervened, and
asserted that the suit would endanger state secrets. The majority
opinion here accepts that threshold objection by the government, so
Plaintiffs' attempt to prove their case in court is simply cut off. They
are not even allowed to attempt to prove their case by the use of
non-secret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets
doctrine has become embedded in our controlling decisional law.
Government claims of state secrets therefore must be entertained by the
judiciary. But the doctrine is so dangerous as a means of hiding
governmental misbehavior under the guise of national security, and so
violative of common rights to due process, that courts should confine
its application to the narrowest circumstances that still protect the
government's essential secrets. When, as here, the doctrine is
successfully invoked at the threshold of litigation, the claims of
secret are necessarily broad and hypothetical. The result is a maximum
interference with the due processes of the courts, on the most general
claims of state secret privilege. It is far better to require the
government to make its claims of state secrets with regard to specific
items of evidence or groups of such items as their use is sought in the
lawsuit. An official certification that evidence is truly a state secret
will be more focused if the head of a department must certify that
specific evidence sought in the course of litigation is truly a secret
and cannot be revealed without danger to overriding, essential
government interests. And when responsive pleading is complete and
discovery under way, judgments as to whether secret material is
essential to Plaintiffs' case or Jeppesen's defense can be made more
accurately. [...]

This is an appeal from a Rule 12 dismissal, which means that the
district court was required to assume that the well-pleaded allegations
of the complaint are true, and that we "construe the complaint
in the light most favorable to the plaintiff[s]." The majority minimizes
the importance of these requirements by gratuitously attaching
"allegedly" to nearly each sentence describing what Plaintiffs say
happened to them, and by quickly dismissing the voluminous publicly
available evidence supporting those allegations, including that Jeppesen
knew what was going on when it arranged flights described by one of its
own officials as "torture flights." Instead, the majority assumes that
even if Plaintiffs' prima facie case and Jeppesen's defense did
not depend on privileged evidence, dismissal is required "because there
is no feasible way to litigate Jeppesen's alleged liability without
creating an unjustifiable risk of divulging state secrets." But Jeppesen
has yet to answer or even to otherwise plead, so we have no idea what
those defenses or assertions might be. Making assumptions about the
contours of future litigation involves mere speculation, and doing so
flies straight in the face of long standing principles of Rule 12 law by
extending the inquiry to what might be divulged in future litigation.