On June 12, 2009, Obama’s DOJ filed court papers seeking to overturn a landmark case that permitted the victims of torture to sue the Boeing subsidiary, Jeppensen Data Plan, for its role in “extraordinary rendition” and torture.
The case, Mohamed, et al v. Jeppesen Data Plan, et al was ruled upon in April 2009 by the Ninth Circuit. The Court’s decision Is summarized here by The Lift:
“The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect ‘state secrets.’ It did so by proclaiming an important role for judicial power ‘in the context of secret Executive conduct.’
“Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.
“Scotus: The Fourth Circuit said a lawsuit by one claiming to have been a ‘rendition’ victim can’t go forward if secrets form ‘the very subject matter’ of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.
“The ‘state secrets privilege,’ the Ninth Circuit ruled, applies only to evidence — one item at a time. If an item of evidence is a secret, it will be kept out of the case. But if the information about government action is not secret, it can be offered and tested in court, it said. ‘The state secrets doctrine,’ it said, ‘applies to evidence, not information.’
“Thus, it went on, even if the government claims that information about the ‘rendition’ program is classified, that is no bar to a court exploring specific evidence that is not itself a secret. ‘The question is which evidence is secret and may not be disclosed in the course of a public trial,’ the Circuit Court said.”
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Obama’s DOJ, in other words, is seeking to reinstate the blanket claim of “state secrets” invoked by the Bush White House to block any investigations and prosecutions for extraordinary rendition and torture.
As described on June 12 by the ACLU:
Justice Department Asks Court For Rehearing In Extraordinary Rendition Lawsuit Against Boeing Subsidiary
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration's unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court's full panel of judges to rehear that decision.
"The Obama administration has now fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. "The CIA's rendition and torture program is not a 'state secret;' it's an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability."
In April, the appeals court reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration had intervened, improperly asserting the "state secrets" privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the "state secrets" privilege with respect to specific evidence, not to dismiss the entire suit.
"The extraordinary rendition program is well known throughout the world. The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "Attempts to keep this case from moving forward fly in the face of Obama's promise to reaffirm our commitment to domestic and international human rights law and restore an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
In recent years, the government has asserted the "state secrets" claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public not only about the rendition program, but also about illegal wiretapping, torture and other breaches of U.S. and international law. Mohamed et al. v. Jeppesen was brought on behalf of Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah.
In addition to Wizner and Watt, attorneys in the lawsuit are Steven R. Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.
More information about the case is available online at: www.aclu.org/jeppesen
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Who are the plaintiffs in this action? Here is some information about these five victims of rendition and torture, as described by the ACLU on 5/30/07:
In July 2002, Ethiopian citizen Binyam Mohamed, while in CIA custody, was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, where he still remains.
[Note: Mohamed was finally released in 2009. In addition to the above torture techniques used upon him, Mohamed also had his penis sliced 20-30 times with a scalpel. “They cut off my clothes with some kind of doctor’s scalpel. I was naked. I tried to put on a brave face. But maybe I was going to be raped. Maybe they’d electrocute me. Maybe castrate me.
They took the scalpel to my right chest. It was only a small cut. Maybe an inch. At first I just screamed … I was just shocked, I wasn’t expecting … Then they cut my left chest. This time I didn’t want to scream because I knew it was coming.
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. ‘I told you I was going to teach you who’s the man,’ [one] eventually said.
They cut all over my private parts. One of them said it would be better to cut it off, as I would only breed terrorists.”]
In May 2002, Italian citizen Abou Elkassim Britel was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents and where he is now incarcerated.
In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
In October 2003 Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.
In November 2002, Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely. No charges have ever been brought against him.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed 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 that way." (Jane Mayer, The New Yorker, Oct. 30, 2006.)
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The man who said that the U.S. “does not torture. That’s not who we are.”
The man who said that challenging your detention because you may be innocent “is a foundation of Anglo-American law.”
The man who said he would bring change and hope to the country and the world.
This man is seeking to protect those who kidnapped and tortured innocent people by invoking the very same arguments used by his predecessors.
This man is refusing to release photographs showing the terrible atrocities committed upon detainees.
This man is not who many people still believe him to be.
This man is retaining rendition, reserves the right to use techniques beyond the Army Field Manual on "high value detainees," (and the AFM's Appendix M itself allows techniques that amount to torture), and wants to formalize indefinite detention under the name "prolonged detention," holding people indefinitely without recourse to habeas corpus on the grounds not of what they've done but what they might do.
This man is shielding the perpetrators of crimes against humanity from justice while pronouncing platitudes about justice and fairness in oh so convincing ways.
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And, as an example of what people can do in the face of these betrayals of justice:
Apl.de.ap sporting the tee shirt “Wanted: For War Crimes and Crimes Against Humanity.” Black Eyed Pea’s new single “Boom Boom Pow” is the current #1 selling song on ITunes, and is also #1 in the U.K. and Australia. Props to the Peas, and to Apl.
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Comments
They flew the "torture flights." They knew that's what they were doing.
What is it here that doesn't make sense to you?
I could not be more supportive of your passion to end torture and prosecute the perpetrators.
IMO Torture is both abhorrent and totally unproductive. Except, that it can easily produce “fictitious” evidence to support an ideology. It does THIS very well.
Personally I don't abhor Mr Obama, because I cannot see a viable alternative. I know little about the man apart from his public profile – within his “public profile” he appears (to me) to be a pretty decent fellow. Please remember I am not an American hence my views are from afar..
What is (would be your) the alternative? Or should I ask "who" Is the alternative??? I don't see this question raised by any of Mr Obama's detractors. Perhaps it should not be part of the debate??
Now for a little on/off topic?? if you will allow...
ON: because it talks about those in power making decisions and not being answerable Governments “withholding” information as you rightly point out, is done in many ways.
OFF: Because I want to visit your country one day and I am afraid to express my point of view.
WHY am I afraid?: Because of the "ideological exclusion" policy – I may never get a visa to cycle around America, if my points of view are not acceptable. I use my own name on my “blog” and I know these are “flagged”... It's frightening!!
A couple of examples of this policy, easily found on the net, include:-
In June, 75 South Korean activists were denied visas as U.S. and South Korean officials met for free trade negotiations in Washington, DC. The South Korean farmers and trade unionists had hoped to voice their opposition to the draft free trade agreement.
In June, Professor Yoannis "John" Milios of the National Technical University of Athens was blocked from presenting a paper entitled "How Class Works" at the State University of New York at Stony Brook. Though he visited the United States as recently as 2003, upon arriving at JFK airport in New York he was detained and interrogated about his politics. After several hours, he was told that he would have to return to Athens.
In May, London-based Hip Hop artist M.I.A. revealed that she was denied a visa to come work with American music producers on her next album. News reports indicate that the Sri Lankan-born artist was excluded because government officials concluded that some of her lyrics are overly sympathetic to the Tamil Tigers and the Palestinian Liberation Organization.
In Spring 2006, Dr. Waskar Ari, a scholar of race and ethnic studies and a member of the Aymara indigenous people in Bolivia, was blocked from assuming a teaching position at the University of Nebraska-Lincoln. Dr. Ari, who earned a Ph.D. in history from Georgetown University, applied for a work visa after accepting the Nebraska offer in June 2005. More than a year later, U.S. immigration officials have yet to act on his visa application, but have since revoked his student visa, leaving Dr. Ari inadmissible to the country. The State Department recently said that Dr. Ari is being excluded on national security grounds, but it has not offered any evidence to support this allegation.
In 2005, Dora Maria Tellez, who served as a Parliamentary leader and Minister of Health in Nicaragua in the 1980s, was forced to abandon her teaching post at Harvard University after the government rejected her visa application. Tellez, who had visited the United States several times up to 2001, was reportedly excluded because of her role in the 1979 Nicaraguan revolution that overthrew the dictator Anastasio Somoza.
Does this sort of stuff fall within your areas of interest? (ie. WCW)
Warm Regards and a sincere heartfelt thank you for caring about all those people oppressed within our world. You have far more courage and tenacity than I could ever dream about.
Mal
I think that in the longer run the criticism of the criminal activities of the administration of America will have an effect.
"According to a report in the London Times, Hussein Onyango Obama, Barack Obama’s paternal grandfather was arrested in 1949 by the British during the Mau-Mau uprising in Kenya and subjected to horrific violence which left him permanently scarred and embittered against the British. He worked as an army cook but became involved in the independence movement aimed at overthrowing colonial rule.
"'The African warders were instructed by the white soldiers to whip him every morning and evening till he confessed,' Sarah Onyango, 87, Hussein Onyango’s third wife, the woman President-elect Obama refers to as 'Granny Sarah' said. 'He said they would sometimes squeeze his testicles with parallel metallic rods. They also pierced his nails and buttocks with a sharp pin, with his hands and legs tied together with his head facing down,'"
Mal: To respond to your question about alternatives to what we now have - it's not a "who," it's a what, although in a sense we could pose the question as a "who:" Who will step forward now and demonstrate - in the many ways possible - that they will not tolerate torture, rendition, the murder of abortion providers, the national security state, the unjust and ongoing wars, and demand the prosecution of torturers and release of the torture photographs? Who will insist that justice be done?
The alternative is that people step out of everyday existence and take the stage of history and play an indispensable role in helping to bring forth the power of the people in a mass movement. This is what can make a difference. Anything else is illusion, as the election of Obama who carried so many millions of people's (naive) hopes on his shoulders demonstrates.
As for the problem of ideological exclusion - it's a real problem as you detail with your excellent examples. I don't think, by the way, that you are a coward. Not in the least. You show this by your courage to post these comments.
Thank you Hannu.
Now, change their names to Al Rogers, Bennie Moore, Elvis Bright, Andre Agassi and Andy Bass, and I wonder if the public would be more sympathetic? If they don't wake up, it may soon be people with names like these. I wonder if those who think torture is a good idea understand that one day merely making a comment like this could get me (or anyone else) a one-way ticket to a "dark prison" somewhere.
I wrote a post some time back about principles, and how difficult it is to contend with the punishment when you know in your heart it was the right thing to do.
This habit we have of allowing people to break the law or threaten the well being of others is mirrored in our workplaces. This is the symptom of a much larger problem, I think.
As Leslie correctly notes, stepping out of the group and doing the right thing can be scary and can have consequences. The status quo has been radically changed and the main political leadership of this country has adopted new norms in which open reactionary actions are considered the "mainstream." This means that those like Leslie and Tom and so on who have a conscience and an intact brain must engage in a fight for the future.
Maybe somebody should have blown the whistle if they knew, not thought, what was going on, but they are not responsible for the actions of another that took place.
From their website: "Whether traveling by sea or by air, Jeppesen is committed to getting you there safely. With a dedicated Office of Aviation and Marine Safety, we employed a Safety Management System (SMS) that establishes stringent and reliable safety policies. Jeppesen's SMS is a systematic and integrated approach to being proactive in managing aviation and marine safety."
Where is it unclear that Jeppesen flew, with "safety," as they brag, detainees who had been kidnapped and hooded by the US government to locales where they were sadistically tortured? Jeppesen knew that this is what those flights were for. A company official describes them as the "torture flights."
How are you not responsible for that?
To make more accurate CapnLion's analogy here: If you rent your house out to crack dealers and you know that you are renting it out to crack dealers and there are tortures committed by your tenants and in fact, you assist in these tortures by personally transporting people to the house where they are tortured, are you not criminally liable?
The problem in part is that if I say "secret for national security," then no outsider can assess how real the threat is, which undermines national security in the long run because government bureaucracies being what they are, no one says'
"Does this make any sense?"
Did the plane crash? Then they flew with safety. Their statement has to do with the movement of the aircraft, which is what the government contracted them to do.
Where is it unclear that Jeppesen flew detainees who had been kidnapped and hooded by the US government to locales where they were sadistically tortured? Jeppesen knew that this is what those flights were for. A company official describes them as the "torture flights."
I strongly recommend the book, "Eight O'Clock Ferry to the Windward Side," by Clive Stafford Smith, a lawyer with dual US & UK citizenship who worked with Guantanamo prisones.
Among them was Binyam Mohamed. His story is so powerful, his courage in the face of American-outsourced torture, and ongoing beatings once at Gitmo so inspiring.
And, Dennis, as you may well realize, I doubt that Catnlion or ocularnervisa are really as dense as they make themselves appear.
Although, you never really know.
Leslie, we must keep asking the questions and making the skeptical comments, so that more and more people start questioning what our government does.
The DOJ, by the way, filed a brief Thursday defending the Defense of Marriage Act. So, everything this administration touches turns to shit.
The brief can be downloaded (PDF) here.
My post is here.
Cartouche: You raise a very good point. The trajectory of things is in that direction. It's extremely important, this can't be overstated, that people speak out and act now...
As always this was a very good post. Leslie, I'm emailing you now about how to get started in doing the work that's needed to keep challenging the conscience of many to resist the torture state.
Jill
Legitimacy is a very important question here not just for us but also for the government. They devote a tremendous amount of attention, necessarily so, to promoting their legitimacy because it is the key prop for their continued rule.
Governments use two tools to stay in power: coercion and persuasion.
Persuasion = their legitimacy.
Coercion = we will force you to do what we want, even if you don't want to and even if you refuse to. We will make you.
Guns are pretty persuasive instruments, but they only force people to do certain things, they can't change your mind. There are only so many cops, soldiers, guns, jails, etc. If enough people don't see them as legitimate there is a limit to how much they can extract co-operation through coercion.
People's minds are the key thing. When enough people come to see a government as illegitimate, then that government is in a heap of trouble.
Building up the necessary critical mass of people who come to the conclusion that their government itself is illegitimate doesn't happen spontaneously for the most part. It requires that people actively expose what's going on, provide people an analysis of what's going on, why, and a path forward to an alternative.
What do you think?