In a little-noticed filing yesterday, the Bush Administration tipped its hand as to how it plans to scuttle yet another lawsuit that could otherwise expose details of one of the many the nefarious policies it has been carrying out behind our backs: extraordinary rendition (which is really nothing more than a euphemism for "kidnapping") to secret CIA prisons overseas.
Some of you might recall that at the end of May 2007, the ACLU announced that it had brought a lawsuit on behalf of several individuals against Jeppesen Dataplan, Inc., a subsidiary of the Boeing Company, for its role in providing travel services (logistical and flight support) for the CIA to clandestinely transport terrorism suspects to prisons abroad where they are routinely tortured and otherwise abused.
Now, the government has effectively indicated that it intends to get Jeppesen off the hook before the case can get underway: the Administration will intervene for the purpose of invoking the military and state secrets privilege, and would seek dismissal of the lawsuit in its entirety on those grounds.
Setting the Stage
A good layman's overview of the facts behind the lawsuit against Jeppesen is provided in this short piece by Jane Mayer, published in October 2006 in The New Yorker. In that article, an attorney for the ACLU hinted at the likelihood of bringing an action against Jeppesen for its role.
Although it took another seven months after Mayer's article appeared, the complaint in Mohamed v. Jeppesen was finally filed in federal court for the Northern District of California on May 30, 2007, and was amended on August 1. The case is assigned to Judge James Ware. The Amended Complaint (74-page PDF file) makes claims under the Alien Tort Statute ("ATS"), which has been a part of U.S. law since pretty much the beginning of the Republic, having been adopted as part of the first Judiciary Act in 1789. The ATS permits non-citizens/non-residents to bring suit in United States courts for violations "of the law of nations or a treaty of the United States."
The Supreme Court has recently concluded that the ATS recognizes as federal common law those international norms that have definite content and acceptance among civilized nations. Sosa v. Alvarez Machain, 542 U.S. 692 (2004). Notably, however, the Supreme Court has never addressed the issue of whether the ATS can form the sole basis for jurisdiction in suits against private, non-governmental entities such as corporations -- a point raised in a footnote in the Sosa opinion, 542 U.S. at 732 fn.20.
Jeppesen obviously falls into this latter category, which is what distinguishes this case from the similar matter brought on behalf of Khaled El-Masri against George Tenet in his capacity as (former) director of the CIA. (That case, El-Masri v. United States, was dismissed on state secrets grounds, and that ruling was upheld by the Fourth Circuit Court of Appeals. El-Masri's petition for a writ of certiorari is currently under consideration by the Supreme Court to decide whether they will hear the appeal sometime during the 2007-08 Term. The Administration's opposition to the petition was just filed this past Wednesday. Ben Winograd of Akin Gump has a nice summary of that over at SCOTUSblog.)
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The Current Situation
The two claims for relief made in Jeppesen, both invoking the ATS, were for (1) forced disappearance and (2) torture and other cruel, inhuman, and degrading treatment. While I am not aware of other ATS cases that have successfully pled a forced disappearance claim, torture claims have held up in a number of cases as viable causes of action to survive a motion to dismiss.
As currently scheduled, Jeppesen is supposed to respond to the lawsuit no later than September 19. But then yesterday, the Department of Justice (what a sad joke they've become) filed an initial Statement of Interest with the district court. The document hasn't been posted anywhere that I can see, but it's available via PACER/ECF from the court at case no. 07-2798, doc. #34. In its Statement, the DOJ says that it wishes
to advise the Court that the United States is considering whether and how to participate in this action, including whether it will assert the military and state secrets privilege, and if so whether it will intervene to seek dismissal of this case. The United States anticipates making that decision, and filing any submissions, by October 19, 2007.
The government thus seeks a delay until it has a chance to submit its papers. (The possibility that the Administration would ultimately choose to sit this one out and not file anything further is extremely remote.) Not surprisingly, Jeppesen, as the defendant, was willing to stipulate to the delay, while the plaintiffs were not.
Continuation of the lawsuit, the Administration will doubtless claim in its subsequent submission, would require delving into clandestine activities the government does not want examined by anyone. Indeed, the government has already admitted as much in the Statement of Interest:
Plaintiffs contend that Defendant assisted the United States government to conduct clandestine intelligence activities abroad. As a general rule, the United States does not – and cannot – confirm or deny allegations of clandestine intelligence activities. Where such allegations are true, the government cannot confirm them for the simple reason that doing so would reveal the very secret the government is required to protect. The government similarly cannot deny such allegations because that denial, in and of itself, might provide information about the scope of intelligence activities to foreign analysts, and because a denial would create a negative inference in other instances where the government refuses to confirm or deny an alleged clandestine activity.
The fact that the United States is not named as a defendant in the Amended Complaint does not obviate the need for it to avoid confirmations or denials of alleged clandestine intelligence activities. It is well-established that even in cases where the United States is not named as a defendant, its interests may be implicated when the very purpose of the litigation is to prove an alleged relationship between the government and private individuals or corporations.
The DOJ filing then goes on to note that El-Masri v. Tenet was dismissed when the government asserted the state secrets privilege:
The court specifically found that the action could not go forward, and defendants could not be required to answer, in light of the government’s assertion of the state secrets privilege. The court noted that "any answer to the complaint would potentially disclose information protected by the privilege," and that "special procedures [. . .]" would be "plainly ineffective" because "the entire aim of the suit is to prove the existence of state secrets."
We've seen this tactic employed by the government in case after case now, both when it finds itself as a defendant, but also -- and far more perniciously -- when it tries to swoop in to prevent suits against private entities from proceeding. Most recently, the state secrets privilege took center stage last month at the oral argument in Hepting v. AT&T (the warrantless wiretapping case) before the Ninth Circuit, as reported at Wired and on dKos here and here.
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Essentially, the Bush Administration, with increasing frequency, has been employing the state secrets privilege as its ultimate Get Out of Jail Free card. But unlike in the game, they get to keep using the card over and over again. We can only hope that in this case, Judge Ware ends up following his colleague in Hepting in refusing to dismiss this matter. He may also get some assistnce if the Ninth Circuit rules quickly in the Hepting appeal, as the Circuit Court panel of judges sounded rather skeptical of the government's arguments, with one of them noting that there was an Alice in Wonderland quality to the Administration's position.
In the short-term, though, it is equally important that the Administration also not be permitted to run out the clock through the use of delaying tactics. The government has clearly signaled its intention to intervene on behalf of Jeppesen, so there doesn't seem to be any reason to push the schedule back any further. Justice delayed is justice denied.