Background to the Case
Three months after 9/11, Ahmed Agiza was captured by the CIA on the street in Sweden.
Hooded men cut off his clothes with scissors. They put a suppository in his anus. They diapered him, shackled him, hooded him, and then trussed him inside a small jet. The jet took him to Egypt.
In Egypt, Agiza was severely beaten, and he was subjected to electric shocks through electrodes attached to his ear lobes, nipples and genitals.
Abou Elkassim Britel was turned over to Americans in Pakistan. He was diapered, shackled, and blindfolded, and then put inside a small jet. The jet took him to Morocco.
In Morocco, Britel was beaten and threatened with sexual torture, including sodomy with a bottle and castration.
Binyam Mohamed was turned over to Americans in Pakistan. He was stripped, blindfolded, shackled, and strapped to the seat of a small jet. The jet took him to Morocco.
In Morocco, Mohamed was routinely beaten and had his bones broken. He got a monthly schedule of scalpel cuttings all over his body, with a concentration of scalpel cuts to his penis. Hot stinging liquid was poured into the open wounds.
Later he was sent to the Dark Prison in Afghanistan. He was kept in near permanent darkness, and subjected in the darkness to loud nightmarish noise, such as the recorded screams of women and children, 24 hours a day. He was starved, and in four months he lost between 40 and 60 pounds.
Bisher al-Rawi was turned over to Americans in Gambia. He was diapered and shackled and placed in a small jet. The jet took him to Afghanistan.
In Afghanistan, al-Rawi was held in the same Dark Prison as Mohamed. Loud noises were played 24 hours per day to deprive him of sleep.
Later he was sent to Bagram, where he was subjected to humiliation, degradation, beating, and sleep deprivation, and was threatened with death.
Farag Ahmad Bashmilah was turned over to Americans in Jordan. He was beaten, kicked, diapered, hooded, handcuffed, and loaded into a small jet. The jet took him to Afghanistan.
In Afghanistan, Bashmilah was held in 24-hour darkness, subject to deprivation, and shackled in painful positions. In another cell, he was subjected to 24-hour light and loud noise.
Later, he was sent to an unknown CIA black site, and subjected to sensory manipulation through constant exposure to white noise alternating with deafeningly loud music, and 24-hour light.
Mohamed v. Jeppesen Dataplan
Mohamed, Britel, Agiza, Bashmilah, and al-Rawi have sued Jeppesen Dataplan, the company that owned the airplanes and ran the rendition service. The suit was first filed in 2007.
The suit is under the Alien Tort Statute, which was enacted in 1789. The statute provided an enforcement mechanism for breaches of international law.
The plaintiffs have two claims, one for forced disappearance, the other for torture and other cruel, inhuman or degrading treatment.
State Secrets and the United States
The United States is an intervenor in the case. The government says that renditions and torture, the whole subject matter of the case and of the tort, are State Secrets.
It is no secret that Binyam Mohamed had his penis sliced with a scalpel. It is no secret that we have a rendition program, flying people around between nominally foreign prisons and our own.
Current government policy is that we will be looking forward on torture, not looking back. Evidence of torture in court most strongly brings in international law requirements that we investigate and prosecute torture. Government policy is that we will not. As necessary consequence of the policy, evidence of torture in court must be suppressed.
The intervention was supported by two declarations by General Michael Hayden, then-Director of the CIA. One of these declarations is secret. The other redacted and unclassified.
Disclosure of the information covered by this privilege assertion reasonably could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States and, therefore, the information should be excluded from any use in this case." It further asserts that "because highly classified information is central to the allegations and issues in this case, the risk is great that further litigation will lead to disclosures harmful to U.S. national security and, accordingly, this case should be dismissed.
Declaration of Michael Hayden
The government claim is that the whole case should be stopped. The case should not proceed to facts and admissions.
The Ninth Circuit Decision
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." United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.
Mohamed v. Jeppesen Dataplan
This is a 6-5 decision by an 11-member en banc panel of the Ninth Circuit.
The panel's decision is that the whole case should be stopped. The case will not proceed to facts and admissions.
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.
Dissenting opinion
If the decision stands, no evidence of the slicing of Binyam Mohamed's penis need be introduced in court, and no official government admissions on the matter need be considered. International law requirements to investigate and prosecute torture are evaded. The administration policy of looking forward may proceed.
Though, the slicing of Binyam Mohamed's penis; the electrocution of Ahmed Agiza's; the threatened castration of Abou Britel's; the experiences of Bisher al-Rawi and Farag Ahmad Bashmilah at U.S. black sites, are not really secret.
News and Blog Coverage
The case relied in part on a statement by Sean Belcher, a former employee at Boeing’s Jeppesen Dataplan Inc. unit, that a senior company official told workers that Jeppesen did "all the extraordinary rendition flights" for the CIA. Belcher said the "torture flights" were profitable, according to the ACLU.
Boeing's Jeppesen Unit Wins Dismissal of Lawsuit Alleging Torture Flights, Bloomberg.
The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.
Court Sides With C.I.A. on Seizure of Terror Suspects, New York Times.
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.
emptywheel
Wading into the government's controversial use of the state secrets privilege to ward off lawsuits, a sharply divided federal appeals court on Wednesday tossed a legal challenge to the CIA's so-called "torture flights," concluding that allowing the case to proceed against a San Jose-based company could expose critical national security secrets.
In siding with the Obama administration's privilege arguments, the 9th U.S. Circuit Court of Appeals ruled that a lawsuit could not proceed that alleges five former terrorism suspects were transported to foreign countries and subjected to brutal CIA interrogation tactics. The lawsuit was filed against Jeppesen Dataplan, a Boeing subsidiary accused of carrying out the flights under a contract with the government.
Federal appeals court tosses lawsuit over CIA 'torture' flights, Mercury News
A Boeing spokesman referred a call seeking comment to the Justice Department. "The attorney general adopted a new policy last year to ensure the state-secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case," said Matthew Miller, a Justice Department spokesman.
Attorney General Eric Holder issued a memorandum last year setting what he said were more stringent standards to be met before the government would invoke its state-secrets privilege.
Suit Against Boeing Over Rendition Program Dismissed, Wall Street Journal.
In recent years, the government has invoked the state secrets privilege in a number of cases, including various suits concerning the National Security Agency's wiretapping program.
A spokesman for the Justice Department said the government would have no comment on the ruling.
Previously, the department has said that it will invoke the state secrets privilege "only in legally appropriate situations" and that the Justice Department "will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know."
U.S. appeals court dismisses suit against firm in 'extraordinary rendition' case, Washington Post.
The outcome underscores that, at least insofar as the state secrets privilege is concerned, President Barack Obama has taken the same path of his predecessor, despite claims he would limit his use of the privilege. President Obama has continued to invoke the privilege in cases left over from the Bush administration, and has argued for it in newer cases as well.
Attorney General Eric Holder acknowledged a year ago that the government was continuing with pending Bush privilege assertions, but claimed it would only invoke the privilege when there’s a possibility of "significant harm" to the country, and wouldn’t use it to hide embarrassing or illegal government programs.
The state secrets privilege is a defense first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are tossed by judges at the government’s request.
Citing Obama’s State Secrets Privilege, Court Tosses Torture Case, Wired.
