September 9, 2010 in Nation/World

9th Circuit Court rejects torture case

Rules national security outweighs right to sue over ‘extraordinary rendition’
Carol J. Williams Los Angeles Times

Five foreign men who say they were kidnapped and tortured by the CIA cannot sue the Boeing subsidiary that helped spirit them away for interrogations because of the risk of secret intelligence matters being exposed at trial, a sharply divided federal appeals court ruled Wednesday.

The decision in the closely watched case was a significant victory for the Obama administration because it recognized a president’s power to protect wartime actions from judicial scrutiny by invoking the state secrets doctrine.

The civil rights lawyer who represented the alleged victims of the Bush administration’s “extraordinary rendition” program said the ruling, if allowed to stand, means the United States has “closed its courtroom doors to torture victims.”

The majority in the 6-5 ruling of the 9th U.S. Circuit Court of Appeals “reluctantly” concluded that national security interests in the case were paramount to “even the most compelling necessity” to protect fundamental principles of liberty and justice.

The lawsuit brought by former Guantanamo Bay prisoner Binyam Mohamed and four others sought to hold Jeppesen Dataplan Inc. of San Jose, Calif., responsible for the alleged violations committed against them because of the company’s logistical support to the CIA. Jeppesen reportedly supplied the flight services and other assistance to CIA agents who whisked the men from Sweden, Pakistan, Jordan and Gambia to secret interrogation sites elsewhere overseas.

In exacting detail, the majority reiterated the men’s accounts of having been snatched off the streets in their resident countries or on business trips abroad, then blindfolded, shackled, stripped and transported to CIA “black sites.” They said they were beaten, starved, subjected to electrical shocks to the genitals and held in darkness and isolation for months at a time.

“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,” began the majority opinion written by Judge Raymond C. Fisher, appointed to the San Francisco-based appeals court by President Bill Clinton. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

The majority said the case couldn’t go forward even on the basis of unclassified evidence already disclosed to the public because those facts were part of a “mosaic” and the court cannot order the government to “disentangle” innocuous information from what is secret.

“Litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets,” the majority said.

A federal district court judge in San Francisco in 2008 granted the U.S. government’s motion to dismiss the lawsuit after President George W. Bush asserted his state secrets privilege, arguing that litigation of the case would reveal confidential national security practices and interrogation tactics.

A three-judge panel of the 9th Circuit last year reversed the district court, saying the men should be allowed to prove their case on the unclassified evidence they claimed would be sufficient for a trial court to reach a judgment on their behalf.

The five judges who dissented in the ruling deemed arbitrary imprisonment and torture “a gross and notorious act of despotism.” They called the majority decision to dismiss the lawsuit “premature.”

“This court should not determine that there is no feasible way to litigate Jeppesen’s liability without disclosing state secrets; such a determination is the district court’s to make,” read the dissent written by Senior Judge Michael Daly Hawkins, another Clinton appointee.

A Justice Department spokesman welcomed the appeals court action dismissing the men’s suit.

“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, director of public affairs.

An attorney for the plaintiffs disagreed.

“To date, not a single victim of the Bush administration torture programs has had a day in court,” said Ben Wizner, a staff attorney with the American Civil Liberties Union representing Mohamed and the other four men said in an interview. “If this decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”

Wizner said he will ask the U.S. Supreme Court to take the case.

Obama as a candidate vowed to rein in use of the state secrets privilege but has backed the Bush administration policy in several high-profile cases, including the rendition challenge. He also promised to abolish any resort to torture in handling terrorism cases.

In the 55-page opinion, replete with ambivalence, the six judges voting for dismissal pointed out that the plaintiffs could still pursue compensation or redress from the U.S. government or Congress. They alluded to the Japanese Americans interned during World War II who were later paid reparations for the violation of their civil rights.

“We do not reach our decision lightly or without close and skeptical scrutiny of the record and the government’s case for secrecy and dismissal,” said the majority.

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