By Dennis Loo
On June 12, 2009, Obama’s Department of Justice (DOJ) filed court papers seeking to overturn a landmark case that permitted the victims of torture to sue the Boeing subsidiary, Jeppensen Data Plan, for its role in “extraordinary rendition” and torture.
The case, Mohamed, et al v. Jeppesen Data Plan, et al was ruled upon in April 2009 by the Ninth Circuit. The Court’s decision Is summarized here by The Lift:
“The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect ‘state secrets.’ It did so by proclaiming an important role for judicial power ‘in the context of secret Executive conduct.’
“Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.
“Scotus: The Fourth Circuit said a lawsuit by one claiming to have been a ‘rendition’ victim can’t go forward if secrets form ‘the very subject matter’ of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.
“The ‘state secrets privilege,’ the Ninth Circuit ruled, applies only to evidence — one item at a time. If an item of evidence is a secret, it will be kept out of the case. But if the information about government action is not secret, it can be offered and tested in court, it said. ‘The state secrets doctrine,’ it said, ‘applies to evidence, not information.’
“Thus, it went on, even if the government claims that information about the ‘rendition’ program is classified, that is no bar to a court exploring specific evidence that is not itself a secret. ‘The question is which evidence is secret and may not be disclosed in the course of a public trial,’ the Circuit Court said.”
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Obama’s DOJ, in other words, is seeking to reinstate the blanket claim of “state secrets” invoked by the Bush White House to block any investigations and prosecutions for extraordinary rendition and torture.
As described on June 12 by the ACLU:
Justice Department Asks Court For Rehearing In Extraordinary Rendition Lawsuit Against Boeing Subsidiary
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court’s full panel of judges to rehear that decision.
"The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. "The CIA’s rendition and torture program is not a ‘state secret;’ it’s an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability."
In April, the appeals court reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration had intervened, improperly asserting the "state secrets" privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the "state secrets" privilege with respect to specific evidence, not to dismiss the entire suit.
"The extraordinary rendition program is well known throughout the world. The only place it hasn’t been discussed is where it most cries out for examination – in a U.S. court of law," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "Attempts to keep this case from moving forward fly in the face of Obama’s promise to reaffirm our commitment to domestic and international human rights law and restore an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
In recent years, the government has asserted the "state secrets" claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public not only about the rendition program, but also about illegal wiretapping, torture and other breaches of U.S. and international law. Mohamed et al. v. Jeppesen was brought on behalf of Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah.
In addition to Wizner and Watt, attorneys in the lawsuit are Steven R. Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.
More information about the case is available online at: www.aclu.org/jeppesen
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Who are the plaintiffs in this action? Here is some information about these five victims of rendition and torture, as described by the ACLU on 5/30/07:
In July 2002, Ethiopian citizen Binyam Mohamed, while in CIA custody, was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, where he still remains.
[Note: Mohamed was finally released in 2009. In addition to the above torture techniques used upon him, Mohamed also had his penis sliced 20-30 times with a scalpel. “They cut off my clothes with some kind of doctor’s scalpel. I was naked. I tried to put on a brave face. But maybe I was going to be raped. Maybe they’d electrocute me. Maybe castrate me.
They took the scalpel to my right chest. It was only a small cut. Maybe an inch. At first I just screamed … I was just shocked, I wasn’t expecting … Then they cut my left chest. This time I didn’t want to scream because I knew it was coming.
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. ‘I told you I was going to teach you who’s the man,’ [one] eventually said.
They cut all over my private parts. One of them said it would be better to cut it off, as I would only breed terrorists.”]
In May 2002, Italian citizen Abou Elkassim Britel was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents and where he is now incarcerated.
In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
In October 2003 Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.
In November 2002, Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely. No charges have ever been brought against him.
According to published reports, 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." (Jane Mayer, The New Yorker, Oct. 30, 2006.)
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The man who said that the U.S. “does not torture. That’s not who we are.”
The man who said that challenging your detention because you may be innocent “is a foundation of Anglo-American law.”
The man who said he would bring change and hope to the country and the world.
This man is seeking to protect those who kidnapped and tortured innocent people by invoking the very same arguments used by his predecessors.
This man is refusing to release photographs showing the terrible atrocities committed upon detainees.
This man is not who many people still believe him to be.
This man is shielding the perpetrators of crimes against humanity from justice while pronouncing platitudes about justice and fairness in oh so convincing ways.