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February 26, 2008

Renditions Clothed in State Secrets Mantle


by William Fisher

As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of "extraordinary rendition," a federal court bowed to pressure from the George W. Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.

The U.S. and British governments revealed last week that two U.S. "extraordinary rendition" flights carrying terrorism suspects refueled on British territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.

Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."

In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."

Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.

The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.

Meanwhile, a federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc., for the company's alleged role in the CIA's "extraordinary rendition" program.

The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.

The government successfully intervened to block the suit, arguing that litigation of the case would reveal "state secrets" and harm national security. The Bush administration has increasingly used the so-called "state secrets privilege" to block lawsuits.

The judge rejected the ACLU's claim that "abundant evidence" was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen's involvement. The ACLU plans to appeal the verdict.

In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts, and Pennsylvania Republican Arlen Specter, the committee's ranking member.

These developments came on the heels of congressional testimony by a controversial Justice Department lawyer, Steven G. Bradbury, during which he admitted that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.

President Bush has nominated Bradbury to head the Justice Department's Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as "simulated drowning."

OLC, one of the Justice Department's most influential offices, drafts legal opinions of the attorney general and also provides its own written opinions. The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding – simulated drowning – was used to compel disclosures by prisoners suspected of being al-Qaeda members.

He denied that the CIA's waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three "high value" prisoners who were subjected to the practice in 2002 and 2003.

Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.

He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but he added that this was not the case in 2002, when the CIA's interrogation program began. At that time, Justice Department lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.

Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Burma.

CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheikh Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by military commission.

Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.

Conducted by Seton Hall faculty and students, the study is based largely on U.S. government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.

In a 2005 case, a federal judge issued an order to the government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at [Guantánamo Bay] be preserved." But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.

The destruction of the two tapes has caused a firestorm of protest in Congress and among human rights advocates.

Gabor Rona, international legal director of the advocacy group Human Rights First, summed up the situation, telling IPS, "The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions."

He added, "The authorization, implementation, and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."

(Inter Press Service)

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  • William Fisher writes for Inter Press Service.

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