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9th Circuit: No Relief for Ghost Air Detainees

Sixteen months ago, a three judge panel of the 9th Circuit Court of Appeals reversed a trial court's order dismissing the ACLU's lawsuit in Mohamed et al. v Jeppesen Dataplan, Inc. The ACLU sued the Boeing subsidiary in May, 2007 for its role in the Bush administration's unlawful extraordinary rendition program. Once Bush was gone, Obama stepped in and maintained the Bush position. The three judge panel rejected the Bush and Obama Administrations' "state secrets" claim, holding that the government must invoke the state secrets privilege with respect to specific evidence, not by moving to dismiss the entire suit.

The lawsuit was brought on behalf of five men, Binyam Mohamed, Al-Rawi, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah, who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated and tortured.

Today the 9th Circuit Court of Appeals, en banc, changed course and dismissed the lawsuit, based on the state secrets claim. In other words, the court denied the detainees, victims of the extraordinary rendition program, their day in court. Today's opinion is here. [More...]

The ACLU responds:

"This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history."

The lawsuit charged:

Jeppesen knowingly provided direct flight services to the CIA that enabled the clandestine transportation of the men to secret overseas locations, where they were tortured and subjected to other "forms of cruel, inhuman and degrading treatment" under the agency's "extraordinary rendition" program.

The ACLU pointed out that the U.S. stands alone in asserting a false state secrets claim and refusing to come clean:

“Governments around the world are coming clean about their participation in the rendition program by handing over relevant documents and even paying restitution to the victims. The U.S. government truly stands alone when insisting on hiding behind false claims of state secrets,” said Steven Watt, staff attorney with the ACLU Human Rights Program. “The extraordinary rendition program is well known throughout the world. The only place it’s not being discussed is where it most cries out for examination – in a U.S. court of law.”

Britain has blasted the U.S. for refusing to release information that would show whether British agents were complicit in Binyam's torture.

Binyam's background:

In July of 2002, Ethiopian native Binyam Mohamed was taken from Pakistan to Morocco on a Gulfstream V aircraft registered with the Federal Aviation Administration (FAA) as N379P. Flight and logistical support services for this aircraft were provided by Jeppesen Dataplan, Inc. In Morocco, Mohamed was handed over to agents of Moroccan intelligence who detained and tortured him for the next 18 months.

In 2004, Mohamed was rendered to a secret U.S. detention facility in Afghanistan. Flight and logistical support services for this aircraft, a Boeing 737 business jet, were also provided by Jeppesen. In Afghanistan Mohamed was tortured and inhumanely treated by United States officials. Later that same year Mohamed was rendered a third time by U.S. officials, this time to Guantánamo Bay, Cuba.

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  • Display: Sort:
    This decision... (5.00 / 7) (#1)
    by Romberry on Wed Sep 08, 2010 at 11:31:28 PM EST
    ...and the fact that the Obama admin pushed for it has left me so angry tonight that I am literally shaking with rage. It's just one more thing on top of so many, many things that I never, ever would have expected from a Democratic administration, much less Mr. Hope and Change himself.

    In the last few days I have really undergone a shift in my thinking. For more than three decades, pretty much since I was old enough to vote, I have regarded myself as a Democrat. I have been a fiercely partisan Democrat, and I have viewed the world through that lens.

    Now I do not self identify as a Democrat. I self ID as a liberal independent. And as a liberal independent, I can not abide what has happened in this case. It violates my political and moral sensibilities to see the United States Department of Justice in a Democratic administration go to court and use the state secrets doctrine to shut down cases against torturers, the enablers of torturers and those persons and/or companies which knowingly assisted in any way.

    I can't say what it is about this case that has set me off so. I think it was just the proverbial straw that broke the camel's back. I just know that I am incredibly disappointed, disillusioned and angry...all at once.

    I'm a veteran of the US armed forces. I served in a minor conflict, and I served in a conflict that was undeclared in which we were meddling. Things that happened then made me realize that a great deal of what I had been taught to believe about our nation was really just patriotic feel-good myth. But I got past all of that and in my gut, I still believed in what I was raised to think America stood for. We were flawed, but we were still the shining beacon for the world. I don't think we're all that shiny any more. And I know that I can't call myself a Democrat because to do so would be to imply that I support what this administration is doing. And I don't. And I won't.

    I try to imagine the ruckus that I would be seeing in some of the forums in which I have participated for years if the Bush admin had pushed this case in the same way through their DoJ. I imagine it would be intense. But with Obama doing it? Save for a voice here and there, it's mostly silence. How can there be silence? Does principle not matter? Is it only wrong when it's being done by "them"?

    I'm ranting, I know. And I apologize for the disjointed stream of consciousness that is this post. But I am so very, very angry. And so very, very disappointed. Where does it all stop? How far is too far? For me, it is past the line.

    Your post is excellent (5.00 / 2) (#3)
    by shoephone on Thu Sep 09, 2010 at 12:58:05 AM EST
    I think you speak for many.

    This decision leaves me disgusted. "State secrets" my a$$. It's no secret that the U.S. government took prisoners to Morroco, Egypt, Syria, Uzbekistan, and Afghanistan to be tortured -- in some cases, for months on end -- for absolutely no benefit to our intelligence services.

    And the very notion that Jeppesen employees did not know what they were doing, and did not know what was going to happen to those prisoners, was exposed as a lie by Jane Mayer in her New Yorker piece FOUR YEARS AGO.

    From the ACLU's court filing in May 2007:

    According to the declaration of Sean Belcher, who worked briefly for Jeppes