President Barack Obama has cast doubt on his
promise to put an end to secret government by allowing his Justice Department
to follow a path frequently taken by his predecessor.
Before a federal appeals court in San Francisco Monday, lawyers from the Obama
Department of Justice invoked the same "state secrets privilege"
used by the administration of President George W. Bush to argue that a lawsuit
brought on behalf of Guantanamo Bay detainee Binyan Mohamed and four other
alleged victims of the CIA's "extraordinary rendition" program should
not go forward because revealing the evidence would harm national security
If the appeals court agrees, it will mean that the alleged victims will not
have their day in court. The court has not yet ruled on the case.
The defendant in the civil lawsuit is known as Jeppesen Dataplan, a subsidiary
of aerospace giant Boeing, which is alleged to have knowingly provided the
CIA with the chartered aircraft used to "render" terror suspects
to countries where they were tortured.
ACLU attorney Ben Wizner, who argued Monday on behalf of Mohamed and the other
appellants, told IPS, "To date, not a single alleged torture victim has
had his day in court. In this case, most of the evidence is already public.
There are no 'state secrets' here."
"And if there were, our federal courts are well prepared to handle this
issue," he added. "This is a betrayal of the rule of law. It is not
the standard we expected from the Obama administration."
The ACLU was encouraged to believe that the Obama Justice Department would
break from the practices of the Bush administration. Eric Holder, recently
confirmed as the new attorney general, said at his confirmation hearing, "I
will review significant pending cases in which DOJ has invoked the state secrets
privilege, and will work with leaders in other agencies and professionals at
the Department of Justice to ensure that the United States invokes the state
secrets privilege only in legally appropriate situations."
This appeared to be at odds with testimony by Obama's nominee for director
of the Central Intelligence Agency, who told senators at his confirmation hearing
that the practice of rendition would be continued, but that "extraordinary
rendition" sending terror suspects to countries where they are
likely to be tortured would end.
In a statement, Anthony D. Romero, ACLU executive director, said, "Eric
Holder's Justice Department stood up in court today and said that it would
continue the Bush policy of invoking state secrets to hide the reprehensible
history of torture, rendition and the most grievous human rights violations
committed by the American government. This is not change. This is definitely
more of the same."
He added, "Candidate Obama ran on a platform that would reform the abuse
of state secrets, but President Obama's Justice Department has disappointingly
reneged on that important civil liberties issue. If this is a harbinger of
things to come, it will be a long and arduous road to give us back an America
we can be proud of again."
The Mohamed case stems from a federal lawsuit filed in 2007 by the ACLU against
Jeppesen on behalf of five victims of the United States government's "extraordinary
rendition" program. The suit charged that Jeppesen knowingly participated
by providing critical flight planning and logistical support services to aircraft
and crews used by the CIA to forcibly "disappear" the five men to
detention and interrogation.
According to the ACLU, 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."
The case was dismissed in February 2008, and the ACLU then appealed to the
U.S. Court of Appeals for the Ninth Circuit in the San Francisco Bay area.
According to published reports, Jeppesen had actual knowledge of the consequences
of its activities. A former Jeppesen employee informed Jane Mayer of The
New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen
official stated, "We do all of the extraordinary rendition flights
you know, the torture flights. Let's face it, some of these flights end up
The case has also caused a furor in Britain and a problem for the U.S. State
Department. In a separate case brought on behalf of Mohamed, who is a legal
British resident, Britain's High Court refused to release seven paragraphs
that the court had redacted in an earlier opinion. The High Court said that
the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat
from the United States to reconsider sharing intelligence with the British.
But, in a highly unusual criticism, the High Court expressed dismay that a
democracy "governed by the rule of law" would seek to suppress evidence
"relevant to allegations of torture and cruel, inhuman, or degrading treatment,
politically embarrassing though it might be."
The court said the Bush administration had made the threat in a letter to
the Foreign Office last September. It called on the Obama administration to
reverse that position. The British foreign secretary, David Miliband, denied
that there was any threat from the U.S.
But, in a statement last week, the State Department said that the United States
"thanks the UK government for its continued commitment to protect sensitive
national security information" and that "the United States investigates
allegations and claims of torture, and cruel, inhuman, or degrading treatment
such as those raised by Binyam Mohamed."
After Mohamed was captured, then-Attorney General John Ashcroft said that
he had been complicit with Jose Padilla in a plan to detonate a "dirty
bomb" in the United States. Padilla was never charged with this plot,
but was convicted on other terrorism-related charges by a federal court in
Last year, the Justice Department said it was dropping the dirty-bomb charges
against Mohamed, and last October all charges against him were dropped.
The ACLU last week sent a letter to Secretary of State Hillary Rodham Clinton,
urging her to clarify the Obama administration's position on the Mohamed case
and to reject what it described as the Bush administration's policy of using
false claims of national security to avoid judicial review of controversial
The ACLU's Romero said, "The latest revelation is completely at odds
with President Obama's executive orders that ban torture and end rendition,
as well as his promise to restore the rule of law."
It has been 50 years since the United States Supreme Court last reviewed the
use of the "state secrets" privilege. During the Bush administration,
government lawyers invoked the "state secrets" privilege more often
than any prior administration to stop cases from proceeding.
Among such cases was that of whistleblower Sibel Edmonds, who was fired from
her position as a language specialist at the FBI's Washington Field Office
in March 2002, after she accused a colleague of covering up illicit activity
involving foreign nationals, alleging serious acts of security breaches, cover-ups,
and intentional blocking of intelligence, which, she contended, presented a
danger to U.S. security.
Her case was appealed all the way to the Supreme Court, which refused to hear
it. And in 2007, the Supreme Court refused to review the "state secrets"
privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent
German citizen who was kidnapped and rendered to detention, interrogation,
and torture in a CIA "black site" prison in Afghanistan.
(Inter Press Service)