9th Circuit Adopts "State Secrets" Defense Against Jeppensen Rendition-Torture Victims

In yet another outrage in the torture scandal, according to an ACLU press release, the 9th Circuit Court of Appeals, ostensibly the most liberal such court in the nation, has ruled Wednesday in an en banc hearing that the lawsuit of five men kidnapped and tortured by the United States government is dismissed, as trespassing upon "state secrets" privileges by the government. The ruling follows an appeal by the Obama administration, who has proven the worthy successor to the Bush/Cheney executive, striving to keep secret state actions of rendition and torture.

The five men include former prisoner Binyam Mohamed, whose case has been covered extensively by the press, and whose torture is a key reason the government of Great Britain recently announced that there would be an investigation of British collaboration with the United States on the torture and rendition programs. A UK Guardian story reported on protests by the legal charity Reprieve over the appointment of the intelligence-linked Sir Peter Gibson to head the inquiry. I'd made much the same exception to Gibson's appointment in my coverage of the announcement of the inquiry back in July. Of course, the British government claims no conflict of interest for the 76-year-old Gibson, who is Intelligence Services Commissioner, responsible for monitoring secret bugging operations by MI5, MI6 and GCHQ (Britain’s version of the NSA).

The 9th Circuit's final vote was tight, 6-5, and the decision and the dissents are well-worth reading (PDF). But this ruling is an outrage, and another indication of the anti-democratic nature of this supposed democratic state, made more ironic and sickening when you consider that the U.S. military spills the blood of hundreds of thousands, and makes refugees out of millions more, all in the name of spreading "Democracy." It would be funny, if it weren't so... so criminal and disgusting.

Consider this story from just one of the five defendants, Ahmed Agiza, seeking damages against Jeppesen DataPlan, Inc, the Boeing subsidiary that leased the planes used in some of the torture renditions. He was kidnapped by the CIA from Sweden and sent to Egyptian torturers three months after 9/11. Note, too, that Sweden had negotiated with Egypt guarantees of humane treatment (for all of you who believe the Obama administration's claims that getting guarantees regarding conditions of imprisonment and interrogation from "host" countries makes rendition "safe"). From the court's ruling:

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authori- ties, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and geni- tals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

From the ACLU press release:

SAN FRANCISCO – A federal appeals court today dismissed a case against Boeing subsidiary Jeppesen DataPlan, Inc. for its role in the Bush administration's extraordinary rendition program. The American Civil Liberties Union and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. The Bush administration intervened in the case, improperly asserting the "state secrets" privilege in an attempt to have the lawsuit thrown out.

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government must invoke the state secrets privilege with respect to specific pieces of evidence – not over an entire lawsuit. The Obama administration appealed that ruling, and in December the appeal was heard by an en banc panel of all 11 Ninth Circuit judges. According to the ACLU, today's ruling all but shuts the door on accountability for the illegal program. The ACLU intends to seek Supreme Court review of the decision.

The following can be attributed to Ben Wizner, staff attorney with the ACLU, who argued the case before the Ninth Circuit:

"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."

Attorneys on the case are Wizner, Steven Watt, Steven R. Shapiro and Jameel Jaffer of the national ACLU, Julia Harumi Mass 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.

Others are responding to this terrible decision by the Ninth Circuit, including Marcy Wheeler, Nick Baumann, Josh Gerstein, and Garrett at Daily Kos. For more on the rendition story, see my article at Firedoglake last July, UK on U.S. Rendition: “Is it clear that detention, rather than killing, is the objective of the operation?” For an even longer historical perspective, read The Real Roots of the CIA's Rendition and Black Sites Program by H.P. Albarelli and Jeffrey Kaye, published at Truthout.org last February.

Bottom line? Ben Wizner described it well, calling it a sad, sad day for all torture victims, as well as those who care about the rule of law. Marcy Wheeler put it more acerbicly:

So basically, the government can kidnap you and send you to be tortured – as they did with Binyam Mohamed – yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.

In a related story, see Adam Goldman's AP piece on the torture of Abd al-Rahim al-Nashiri at a CIA black site prison in Poland, where he had been sent via rendition back in 2002 and 2003. Al-Nashiri famously had both a gun and a drill held threateningly to his head during the torture. Ostensibly, according to the article, the torturer in question was an ex-FBI agent and CIA interrogator named "Albert." The article looks meant to warn DoJ prosecutor John Durham not to bother with a prosecution of the CIA agents involved, as doing so would open a can of worms, since previously DoJ declined prosecution, and "Albert" went on to work for the CIA for years after his "reprimand" in the Nashiri case.

As al-Nashiri's attorney said about her client's case:

"Terrorizing a hooded, shackled prisoner is torture," [Nancy] Hollander said. "I will do everything in my power to make sure the world knows that agents of the U.S. government tortured my client and have now held him in violation of U.S. and international law for over eight years."

Bagram Interviews, ACLU Letter on Child Prisoners, Obama Seals Up Secrets

Yesterday [11/28], my [Daily Kos] diary on the Washington Post and New York Times articles regarding the existence of torture at a black-site, Special Operations-run prison at Bagram Air Base in Afghanistan, sparked a lot of comments. These spanned the spectrum from incredulity at the torture reports to speculations regarding Obama's place in this story.

I want to do a number of things with this follow-up diary. I'd like to highlight one of the New York Times prisoner interviews (long excerpts of which are now posted at the Times), that of Hamidullah, a 42-year-old poor farmer from rural Kandahar Province, who due to the war had to leave his farm, and now tries to make his living as a "spare auto-parts dealer".

I also want to take note of a letter from the ACLU to Secretary of Defense Robert Gates "on efforts to bring U.S. policy regarding the treatment, detention and trial of juveniles into compliance with international law." In addition, I think it's worth noting a special report at the Boston Globe on the struggle between the Obama administration and spy agencies over the declassification of decades of secret government documents.

The interview with Hamidullah

I've chosen to highlight this interview because the seizure, detention, interrogation, and release of this 42-year-old farmer took place entirely within Obama's months as commander-in-chief. Note that, per the earlier articles, the White House had no comment to make on this and other stories published over the weekend.

There can be, of course, no independent verification of Hamidullah's story. That would be impossible at this point. The existence of the Bagram black site prison is "classified." However, the New York Times noted that the interviews were conducted independently, and were consistent in their details with what other human rights workers interviewing detainees had reported. Since these prisoners were released, I'd add, and not considered ideological or organized opponents of the U.S., they don't, it seems to me, have any particular advantage in making the reports they do.

From the Hamidullah interview (as much as I believe fair use will allow - all bold emphases I have added):

I was in my house with my family, and we had a guest. It was night; about 11:30 p.m. They raided the house and arrested me and my guest. They tied my hands and blindfolded me. A kind of hood was put on my head. It was five and a half months ago in early June....

Then they put me in the Tor jail. I can’t remember the number of days I spent there because it’s hard to tell days from nights in the black jail, but I think every day they came twice to ask questions.

They took me to their own room to ask the questions. They beat up other people in the black jail, but not me. But the problem was that they didn’t let me sleep. There was shouting noise so you couldn’t sleep....

The black jail was the most dangerous and fearful place. It is a place where everybody is afraid. In the black jail, they can do anything to detainees.

Hamidullah notes that the Red Cross is not allowed "to see or communicate" with any of the prisoners. He reports his being stripped naked in front of the interrogators and interpreters. While he says he didn't literally see anyone tortured, he could hear "crying" and "moaning" of other prisoners.

When they took us they tied up our hands and blindfolded us and covered our ears....

When I was in the black jail it was very difficult. I couldn’t even think how I felt. If I wanted to go to the bathroom, I banged on the doors for hours and no one came. It was too difficult.

It may be easy for some to dismiss Hamidullah's tale, or the fact that he feared at the time he would never get out of the main Bagram prison, after transferred there from the black site, because he'd talked to other prisoners who had been there "for years." But for those who do, they should think of the moral burden carried by themselves for making such a dismissal, under these circumstances. What we need instead is a full investigation. No more secrets!

ACLU Asks Obama Administration to Comply with UN Protocol on Children in Armed Conflict

Before the Washington Post published their story on the Bagram black site, highlighting the torture of teenaged captives of U.S. Special Forces, earlier this month the ACLU had written a letter to Secretary of Defense Robert Gates, "requesting updated data on juveniles in U.S. military custody in Iraq and Afghanistan and information on efforts to bring U.S. policy regarding the treatment, detention and trial of juveniles into compliance with international law."

In May 2008, the United Nations Committee on the Rights of the Child conducted a review of U.S. compliance with the Optional Protocol on the Involvement of Children in Armed Conflict. The U.S. is a signatory of this protocol. The review found that 513 Iraqi children were imprisoned by the U.S. military as "imperative threats to security." Moreover, the U.S. "had transferred an unknown number of additional children to Iraqi custody." As of April 2008, approximately 10 juveniles were reported being held at the Bagram prison in Afghanistan.

We know now, thanks to the Washington Post article the other day, which interviewed two teenaged prisoners previously incarcerated at the Bagram black site, what kind of mistreatment, amounting to torture, in my opinion, these children and teens have experienced.

From the Post article:

The two teenagers -- Issa Mohammad, 17, and Abdul Rashid, who said he is younger than 16 -- said in interviews this week that they were punched and slapped in the face by their captors during their time at Bagram air base, where they were held in individual cells. Rashid said his interrogator forced him to look at pornography alongside a photograph of his mother.

The ACLU letter to Gates noted that the UN Committee on the Rights of the Child in its review had uncovered reports of juvenile mistreatment by the U.S. military, including length of detention and conditions of confinement of juvenile detainees, and lack of adequate access to education, legal services and physical and psychological recovery services.

The committee also was concerned that children were being charged and prosecuted for war crimes without consideration for their status as juveniles. Last Friday, Attorney General Eric Holder announced that the Canadian Guantánamo detainee Omar Khadr, who was 15 when he was captured by U.S. forces, will be charged in a military commission for allegedly throwing a hand grenade that killed an Army medic and wounded others in Afghanistan.

The human rights community and progressives in general should see to it that Gates' feet are held to the fire on this, and pressure put on the Obama administration to fulfill their obligations to the Protocol on Children in Armed Conflict.

The full letter to Gates can be found here. The full report of the U.N. CRC is here (PDF).

Report: Obama to Maintain Secrecy on Millions of Military/Intel Docs

While not specifically about torture or the Bagram base, not too tangentially, this story about the fight over state secrecy, in terms of ever finding out what this government does, is important. The Boston Globe has a special report by Bryan Bender on how the Obama administration, flummoxed by intelligence agency interference and obstinacy regarding the declassification of documents, many over 25 years old, has led Obama to decide to continue the secret hold on these materials, which originally were to be released on Dec. 31 of this year.

The release was an extension of earlier holds put on the declassification by both Clinton and Bush administrations. The Bender article describes the struggle within the state bureaucracy over these documents, and it's difficult to see anyone, including Obama, who to his credit has made some play for greater transparency and openness, looking good about what is unfolding. The Obama administration appears to not have just been defeated on this, but some of their new proposals apparently are contrary to earlier policies regarding openness made in the early days of the administration.

From the Boston Globe article:

WASHINGTON - President Obama will maintain a lid of secrecy on millions of pages of military and intelligence documents that were scheduled to be declassified by the end of the year, according to administration officials.

The missed deadline spells trouble for the White House’s promises to introduce an era of government openness, say advocates, who believe that releasing historical information enforces a key check on government behavior. They cite as an example the abuses by the Central Intelligence Agency during the Cold War, including domestic spying and assassinations of foreign officials....

The failure to meet the disclosure deadline “does not augur well for new, more ambitious efforts to advance classification reform,’’ said Steven Aftergood, a specialist on government secrecy at the Federation of American Scientists in Washington. “If binding deadlines can be extended more or less at will, then any new declassification requirements will be similarly subject to doubt or defiance.’’

Besides the larger picture around declassification and ever knowing our own history, the failure to declassify even old documents -- in this case, over 400 million pages of documents going back to World War II -- means that the scandals and abuses of the present day are also likely to never be fully understood or revealed, including the facts around U.S. use of torture.

It is time this country squarely face the momentous task of changing the direction we are headed. Recent events are clearly demonstrating the folly of putting all hope of change into one man, or even the electoral process alone, per se. We need powerful investigations, a vibrant and active press and citizenry, and a political leadership that is not afraid to make the hard choices.

If Obama makes a decision to escalate the war in Afghanistan, and not begin a withdrawal, it will be a decision as fateful as Bush's to illegally invade Iraq. It will be near-impossible to double-back on this path once launched (indeed, the fact that Obama is about to escalate the war is related to the instance of first invading that country).

As an example of how it otherwise could be, see Ray McGovern's excellent article at Truthout, discussing a different president's decision on a different war, and a sober assessment of how things could have been different.

Originally posted at Daily Kos

Per Obama: Torture Evidence Is "Protected" Against Release

This is what a Nobel Prize gives you the chutzpah to do. From Jason Leopold at Truthout:

On Thursday, the House approved a Department of Homeland Security spending bill that included a provision to amend the Freedom of Information Act (FOIA) and grant Defense Secretary Robert Gates the authority to withhold "protected documents" that, if released, would endanger the lives of US soldiers or government employees deployed outside of the country.

According to the bill, the phrase "protected documents" refers to photographs taken between September 11, 2001 and January 22, 2009, and involves "the treatment of individuals engaged, captured or detained" in the so-called "war on terror." Photographs that Gates determines would endanger troops and government employees could be withheld for three years.

Leopold quotes Democratic Congresswoman Louise Slaughter as saying "the language was quietly reinserted in recent weeks, 'apparently under direct orders from the administration.'" The bill's language is a cover for Obama, who was otherwise threatening an administration petition to the U.S. Supreme Court to stop the release of the controversial, unseen "torture photos."

Will we hear much protest from the progressive blogosphere? Not likely, as the torture issue slips off the radar, and the trudging submission of the progressive punditry to Democratic Party faux-ameliorism continues (there are exceptions, and you know who they are). Millions more on unemployment. Wall Street dances in blue chips. War continues apace, and the torture industry revs up for more high-tech adventures in breaking individuals down. No pictures of war. Nothing messy. Just bright baubles, Nobel Prizes, and proud words about equality... some day. No one in a position of power must lose a wink of sleep: that's how change is measured in America these days.

Congress Fails, But Justice Speaks Out

Meanwhile, over in Great Britain, per the UK Guardian, some very welcome news:

In a devastating judgment, two senior judges roundly dismissed the [British] foreign secretary's claims that disclosing... evidence would harm national security and threaten the UK's vital intelligence-sharing arrangements with the US.

In what they described as an "unprecedented" and "exceptional" case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born [Binyam] Mohamed before he was secretly interrogated by an MI5 officer in 2002.

"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."

Readers might remember the case of Binyam Mohamed, who was seized by the United States in Pakistan in 2002, secretly renditioned to Morocco, and later held at Bagram and Guantanamo "terror" prisons, suffering torture in all these sites. He is one of the plaintiffs in the Jeppesen case, a suit brought by the ACLU. That case engendered a decision last summer by the Ninth Circuit Court, which was one of the last legal victories in the U.S. in the struggle for accountability for torture.

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five victims of the United States government's unlawful "extraordinary rendition" program. The suit charges that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to detention and interrogation. Shortly after the suit was filed, the government intervened and inappropriately asserted the "state secrets privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. In April 2009, the Ninth Circuit Court of Appeals reversed a lower court dismissal of the case, ruling that the government must invoke the state secrets privilege with respect to specific evidence, not to dismiss the entire suit. The case is remanded back to district court, providing the first opportunity for Bush-era torture victims to have their day in court.

New "State Secrets" Policy? More Lipstick on the National Security Pig

The New York Times reports:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

But the Obama administration believes it's enough now that any claim of "state secrets" privilege by the executive branch be reviewed now by the Attorney General. The ACLU notes with some derision that "on paper" there is some purported progress, while Marcy Wheeler at FDL reports that Center for Constitutional Rights is calling the proposed policy "smoke and mirrors." Ben Wizner at the ACLU had more to say (emphasis added):

In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.

Writing also at FDL, bmaz sees the timing of the "new" policy as related to government attempts to bury the evidence of government misdeeds in the wiretapping al-Haramain case:

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous "John Ashcroft hospital scene"....

Tack in the distinct possibility that the government made material misrepresentations about their data mining and warrantless surveillance to the FISA Court and that illegally information thusly obtained inappropriately made its way into the affidavit for the search warrant executed on the al-Haramain Foundation in Oregon, and you see the veritable cornucopia of problems the government could be so determined to stop inquiry into in the al-Haramain litigation before Judge Walker....

There is a lot the government has to hide in al-Haramain, and they are desperate to do just that. It would be a perfect time to whip out a ruse in the form of a "new state secrets policy". Even if there is nothing at all new about it.

The spanking new proposed policy only raised spitting disgust from civil liberties legal blogger Glenn Greenwald:

...the so-called "new state secrets policy" which the Obama DOJ is set to unveil is such a self-evident farce -- such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing -- that I couldn't even bring myself to write about it. It would not have altered a single one of the controversial uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

For those who haven't gotten the picture yet, let me draw it as simply as possible: when it come to defending U.S. military and national security interests, there's not a cent's worth of difference between the Bush/Cheney and Obama/Biden administrations. Those waiting for the confirmation of Dawn Johnson to change things might as well be waiting for the Second Coming (or the Messiah, if you're Jewish).

And as an aside -- and switching topic somewhat -- those waiting for the Congressional bill to slap down Acorn as somehow being used in some sort of progressive jujitsu to bring down the entire military-industrial complex (see the Greenwald link above), let's not waste our time with such utopian fantasies. Some poor naive activists might believe it, and only demoralization results from pursuing such pipe dreams. The MIC will not be brought down by a trick.

Meanwhile, for readers pursuing other items of interest, this appears promising:

In an interview with former CIA officer Phillip Giraldi, FBI translator turned whistleblower Sibel Edmonds named Douglas Feith, Paul Wolfowitz, and Richard Perle as having been wiretapped and recorded discussing plans with the Turkish ambassador in the Summer of 2001 to invade Iraq and occupy the Kurdish region bordering Turkey.