Okay, if your idea of a "vacation to an exotic locale" is to spend time in some CIA-run or foreign prison in, say, remote North Africa, Central Asia or Guantánamo, you might find this encouraging. For everyone else who hasn't completely lost their sanity, the latest underhanded moves by the Bush Administration to prevent any examination of its rendition programs are pretty much what we've come to expect.
Following through on its presumed intention noted in this space two months ago, the Administration has now formally sought to assert the state secrets privilege to dismiss a private party lawsuit brought on behalf of five individuals who were "arrested, transported, detained, and interrogated as part of the CIA’s terrorist detention and interrogation [a/k/a extraordinary rendition] program". The similar case brought by Khaled El-Masri against the Gov't was dismissed by use of the privilege, but this suit, Mohamed v. Jeppesen Dataplan, names only the corporation as a defendant, not government agencies or officials.
This is not the first time the Bush Administration has attempted to (ab)use the privilege to scuttle litigation in which it isn't even directly a party (though it's obviously implicated as the contractor). And if their claim here ends up being successful, it most certainly won't be the last. As it has done in the other suits, a high government official (here, CIA Director Gen. Michael Hayden) has asserted that any further proceedings in this lawsuit cannot occur "without risking serious--and in some instances, exceptionally grave--danger to the national security." Sure, we'll just take your word for it, General. According the the Bush Administration, the world has become far too scary and dangerous a place for We the People to be allowed to know what is taking place in our names.
A Bit of Background
In May of this year, the ACLU brought this lawsuit in the Northern District of California under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, which permits civil actions by non-U.S. citizens/non-residents for violations of customary international law (a vague term that federal courts around the country are currently struggling to define). Jeppesen Dataplan, a subsidiary of the Boeing Company, was revealed earlier this year to have provided vital travel services (logistical and flight support) to the CIA, without which their rendition program might never have been possible. As noted by the ACLU in a Fact Sheet, among the services provided by Jeppesen were
furnishing aircraft crew with flight planning services including itinerary, route, weather, and fuel planning; responsibility for the preparation of flight plans; facilitation of customs clearance and arrangements for ground transportation, catering, and hotel accommodation for aircraft crew upon landing; and provision of physical security for aircraft and crew.
The Amended Complaint alleges that Jeppesen was directly liable for plaintiffs' forced disappearance because it "actively participated in numerous aspects of the logistical planning and implementation of the extraordinary renditions of Plaintiffs, with actual or constructive knowledge that its involvement would result in the secret apprehension and detention of Plaintiffs." First Amended Complaint ¶ 254. Additionally, Jeppesen is alleged to be indirectly liable for torture and other cruel, inhuman or degrading treatment because it "conspired with agents of the United States . . . aided and abetted agents of the United States . . . [and/or] demonstrated a reckless disregard by providing flight and logistical support to aircraft and crew it knew or reasonably should have known would be used in the extraordinary rendition program." Id. ¶¶ 262-64.
Back on September 6, shortly before Jeppesen was scheduled to move against the Amended Complaint, the Department of Justice filed an initial Statement of Interest, indicating that it wanted some time to consider whether to intervene in the lawsuit. Jeppesen, as the defendant, was happy to go along with this idea (shocking, isn't it?), while counsel for plaintiffs were not. Judge James Ware, however, granted the extension of time, and we now have the government's papers. [Even though it's been several weeks now since they were filed with the court, I still have not been able to locate a publicly posted version of the documents, so you'll all have to take my word that the quotes are accurate, since I don't have a place to post the PDF files.]
The Details of the Filing
According to the brief in support of the Government's motion to dismiss (or, in the alternative, for summary judgment), in his public declaration,
Gen. Hayden, the Director of the Central Intelligence Agency, has formally asserted the military and state secrets privilege, and has also asserted a claim of privilege under the National Security Act. Those privilege claims identify four categories of information . . . that cannot be inquired into in court proceedings without risking serious--and in some instances, exceptionally grave--danger to the national security:
- Information that may tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with any alleged clandestine intelligence activities, including the CIA terrorist detention and interrogation program;
- Information that may tend to confirm or deny any alleged cooperation between the CIA and foreign governments regarding clandestine intelligence activities;
- Information concerning the scope and operation of the CIA terrorist detention and interrogation program, such as: the locations where detainees were held; whether or not the CIA cooperated with particular foreign governments or private entities in conducting this program; the interrogation methods used in the program; and the identities of any individuals detained by the CIA that have not already been publicly acknowledged; and
- Any other information concerning CIA clandestine intelligence activities that would tend to reveal any intelligence activities, sources, or methods. (Motion at 4-5; citations omitted.)
In addition to this public declaration, there is a classified declaration which has been lodged with the DOJ's Security Officer in Washington, DC, available for the judge to view, but not plaintiffs' counsel. This "secret" declaration purports to set forth the full basis for the assertion of the privileges.
Later in their brief, the Government makes the claim that the "CIA is not
free to disclose who it does or does not work with, in what capacity, and to what extent, in connection with clandestine activities, because that information constitutes one of the sources and methods of intelligence gathering that must be protected." (Motion at 17.)
Thus, according to the argument put forth by the DOJ in its submission here,
Under well-established precedent, if the Court upholds Gen. Hayden’s privilege assertions, the information covered by the privileges must be "completely removed from the case." Where, as here, that information is central to the case, and where it is apparent now that plaintiffs’ claims cannot be litigated absent this information, dismissal is required. Proceeding with this case would require plaintiffs to prove that they were detained and interrogated by the CIA; that they were subjected to the treatment they allege; and that the CIA cooperated with defendant and particular foreign governments in carrying out plaintiffs’ detention and interrogation. Because this is the very information over which Gen. Hayden has asserted the privilege, "the very subject of this litigation is itself a state secret," and "no amount of effort and care on the part of the court and the parties will safeguard privileged material." Additionally, because the absence of this information deprives the plaintiffs of the ability to make out a prima facie case in support of their claims, and similarly deprives the defendant of information necessary to defend against these claims, the state secrets privilege would require dismissal of this suit even if its "very subject matter" were not a state secret. (Motion at 2; citations omitted.)
Reliance on Other Recent State Secrets Cases
The brief submitted here by the DOJ is replete with citations -- up, down and sideways -- to the Fourth Circuit decision in El-Masri v. United States, which is not at all surprising given that the Supreme Court just declined to hear the appeal in that case less than two weeks earlier.
Since this case is somewhat different from El-Masri in that it isn't against the Government directly, the DOJ makes very clear in its brief that the "privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party." (U.S. Motion at 7) Thus, it doesn't matter what Jeppesen may want to do with any documents within its possession, including relying upon them for its own defense.
In another prominent cite to the Fourth Circuit decision, the Government notes,
Similarly, in El-Masri, the court found that a tort suit against government officials and corporate defendants arising out of an alleged "extraordinary rendition" as part of the CIA terrorist detention and interrogation program--the very same program at issue in this case--could not proceed, even though the government officially acknowledged the program’s existence, because such litigation would necessarily probe the program’s still-classified operational details.
Moreover, where the "very subject matter" of a suit is a state secret, a plaintiff’s alleged personal knowledge of the facts set forth in a complaint is irrelevant if those allegations cannot be litigated without threatening the disclosure of state secrets.
(Motion at 10.)
And in a cite to another recent case involving telecom involvement in domestic surveillance, Terkel v. AT&T (not the case currently under appear before the Ninth Circuit, about which more in just a bit), the brief asserts:
The fact that the United States is not named as a defendant in the First Amended Complaint does not lessen its need to avoid disclosures of information covered by the privilege assertions. Courts have recognized that development of factual issues surrounding allegations of clandestine intelligence activities--even if conducted by private parties--can nonetheless encroach upon state secrets that the privilege is designed to protect. "Because requiring such disclosures would therefore adversely affect our national security, such disclosures are barred by the state secrets privilege." (Motion at 17)
The Government also cites extensively to a 1998 state secrets case from the Ninth Circuit, Kasza v. Browner. It seems that they are doing this for two reasons beyond the standard one of citing circuit precedent.
First, this is very likely a realization that a ruling by a Ninth Circuit panel could come down soon in Hepting v. AT&T, the illegal wiretapping/domestic surveillance case (which would be first on the chopping block should Congress approve telecom immunity as part of any FISA revisions). Based on the skepticism expressed by the appellate judges in that matter (see Wired and dKos stories here and here), it is reasonable to assume that the Ninth Circuit panel will uphold Judge Vaughn Walker's district court opinion which rejected the Government's assertion of the state secrets privilege (along with the corporate defendants' motions to dismiss). Should this happen -- and it could occur fairly soon -- Judge Ware would effectively be obligated to apply the new standard to the Jeppesen case as well.
Second, Kasza was a case in which the state secrets privilege was asserted by the Clinton Administration, so it looks much better politically for the Bush-era DOJ to cite favorably to a similar tactic employed by the "other side".
Summing It All Up
The date currently set for the hearing on the Government's motions (both to intervene and to dismiss) is Monday, February 4, 2008 (and with all the primaries the next day, I wouldn't expect widespread media coverage, traditional or otherwise). Under a stipulation regarding the briefing schedule, and ordered by Judge Ware this past week, the ACLU's papers in opposition are due December 14, with the Government to reply on January 18. By all appearances, Jeppesen, the actual defendant here, is sitting this out on the sidelines, perfectly content to let the DOJ stop the lawsuit for them.
The penultimate paragraph of the DOJ brief pulls the essence of the Administration's argument together into one neat little package:
Simply put, the parties cannot litigate whether plaintiffs suffered the alleged torts if they cannot adduce information concerning whether these plaintiffs were part of the CIA terrorist detention and interrogation program and whether the defendant assisted the United States in that program. Moreover, even if--indeed, especially if--plaintiffs could establish that they were a part of that program, the parties cannot be permitted to litigate over the details of how that program is or was carried out. As in El-Masri, the information necessary to proceed cannot be disclosed without risking serious--and, in some instances, exceptionally grave--damage to national security. (Motion at 23.)
I certainly believe, however, that even more grave damage to our Constitution should this transparent effort to shield patently illegal and immoral activities from any possibility of liability, whether public or private.
In a piece that was posted on his behalf at Huffington Post shortly after the Administration's filing, Mohamed's brother had this to say:
It is no secret that my brother was kidnapped, shackled and flown to secret prisons. It is no secret that he was repeatedly tortured and humiliated. It is no secret that he's now holed up in Guantánamo with no relief in sight. And I can tell you personally that it's no secret that he and his family have suffered immeasurable pain.
Binyam's story and that of the CIA's extraordinary rendition program have been told the world-over, as I tell it to you now. It simply cannot be that the one place this story cannot be told -- this "open secret" -- is where it needs to be heard most: in an American courtroom.
The Bush Administration is terrified of even the slightest chance of examination of its nefarious and illegal activities, no matter the forum. As is often said, sunlight is the best disinfectant, so it is no surprise that this Administration continues to seek to hide in the shadows. We can only hope that, in this instance, the courts not allow them to bury this under a rock, and permit the lawsuit against Jeppesen to proceed. Even if the case does get to move forward, there will still be many obstacles that could keep Jeppesen from being held accountable for its complicity in the rendition programs, but at least the suit can be contested on the merits, which is how it should be.