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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    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 Jeppesen as a technical writer in San Jose, Calif. in 2006, the director of Jeppesen's International Trip Planning Service, Bob Overby, told new employees during an introductory breakfast that "we do all the extraordinary rendition flights."

    When some employees looked puzzled at the statement, Overby added that he was referring to "torture flights," according to Belcher's declaration.

    According to Belcher, Overby then said he understood some employees were not comfortable with that aspect of Jeppesen's business but added, "that's just the way it is, we're doing them," and that the rendition flights paid very well.

    Really -- none of this is a "secret" at all.


    You ask two great questions - in addition (5.00 / 3) (#12)
    by Anne on Thu Sep 09, 2010 at 09:11:28 AM EST
    to expressing what so many of us feel about where things are:

    Where does it all stop? How far is too far?

    I'm almost afraid to consider the answers to those questions, because it seems there is little interest on the part of the Congress, the judiciary or the people to put the brakes on; the Congress is too busy configuring legislation in order to get the most bang for the buck and make sure they can head through the revolving door into lobbying and special interest representation, the judiciary is showing us why advise and consent is supposed to matter, and the people are, I think, just worn out and worn down.  Out of work, or working harder than ever for the same amount of money, living in homes that have lost all kinds of value, or losing those homes to foreclosure, having their credit ruined by using HAMP to seek mortgage modification which has turned out to be a program that has been a boon to lenders but not the people who owe money on their homes, depressed and dejected because the much-vaunted promise of help for health "care" won't be available for years - if ever, really - worrying about Social Security in light of the Cat Food Commission, but no one doing much about the vast amounts being spent on wars and contractors and the military machine.

    The list is endless, but the patience, the will to effect change through the ballot box, is not, and many people have come to the conclusion that, regardless of how they cast their ballots, the politicians will continue to do what they want to do, and not what we want them to do.  Oh, they will start acting like they care, and promising us the moon in election season, they will deluge us with ads and mailers and requests for money to help them fight the good fight.  They will give impassioned speeches about why they sought public office, will say all the right things, and not understand our anger at being treated as if we are too stupid to see the disconnect between their words and their actions.

    The 9th Circuit ruling is a travesty; that the generally most liberal appeals court in the country has agreed with a Democratic Justice Department that has signed on to defend the crimes of the Bush Administration, and set precedent for more - and more extensive - executive power, is beyond disturbing to me.  It is, frankly, frightening, both for what it says about the state of mind of people who are supposed to be safeguarding the Constitution and the democracy, and for what it portends for the future.

    How much is too much?  Where does it all stop?  I don't believe anyone in power ever wants to be restrained from exercising it, so it is up to the other branches of government - and the people - to do it for them.  Congress and the Judiciary, in my opinion, have failed to exercise their responsibility to check executive power, so that means it's up to us.  But we no longer have as much freedom to confront our government as we used to; when people disappear, when they are put on assassination lists, when their privacy disappears, when whistle-blowers are prosecuted, when we have less and less ability to be informed about what our government is doing, the message is not hard to decipher: you don't matter, so shut up and let us do what we want...or else.

    No wonder people just check out of current events...it's getting to be the only way to maintain one's sanity - which works out quite well for those who can't get enough power.



    and so, (5.00 / 1) (#5)
    by cpinva on Thu Sep 09, 2010 at 06:14:12 AM EST
    the more things change, the more they remain the same. some smart person said that, sometime.

    simply by claiming "state secrets", the federal government can get the courts to roll over and play dead? pretty sweet deal. do they even have to disclose to the judge what, exactly, the "secrets" are, that if exposed, would potentially damage national security?

    yes, ultimately (5.00 / 1) (#16)
    by JamesTX on Thu Sep 09, 2010 at 10:59:11 AM EST
    I think question here should be, "what's the big secret?"

    What is this secret which is so compelling to keep to allow absolute disregard for the Constitution and basic human values?


    Apparently, from what (5.00 / 2) (#18)
    by JamesTX on Thu Sep 09, 2010 at 11:10:26 AM EST
    has transpired so far, the Obama administration thinks disclosure of any cruel and unusual behavior by U.S. agents is a "secret" because it will make the world mad at us. I've got a secret -- they already are. And we would do ourselves much more of a favor by coming clean and making sure the people who do these things do not get back into power. But nah -- the economy -- health care -- let's try them out one more time. I'm a little angry at the pace of change, so why not give it back to these people?

    Well, if anyone wondered how it is (5.00 / 3) (#32)
    by Anne on Thu Sep 09, 2010 at 12:54:23 PM EST
    that our government manages to get away with disappearing people for torture, they need look no further than some of the comments here, which seem stuck on the kind of minutiae that completely misses what is really at stake.

    I guess some people still have enough trust in the government that they can assume that we wouldn't be doing this kind of thing if we didn't have a reason to, but if the only oversight consists of the courts and the Congress taking the word of those involved, I don't know how it is even possible to believe that.  "Because we said so," and "if we tell you, we'll have to kill you," do not strike me as adequate in any way, shape or form.

    It just boggles my mind that people who live in a country where the presumption of innocence has been a bedrock principle have no problem throwing that out and automatically presuming guilt because the label "terrorist" or "enemy combatant" has been pasted on someone - and don't see the irony of the fact that that label was attached by the very people doing the disappearing.

    I mean, come on.  I don't know how it is even possible for any of us to opine about the guilt or innocence of anyone who hasn't been able to be heard by an independent third party.  We've gone to war to aid the citizens of countries where that is the entire system of justice, for heaven's sake, but suddenly, it's okay for our government to do it?

    I don't think so.  I don't think we should be normalizing that kind of thing, because the more normal it is, the greater the threat to everyone's freedom, the easier it is to extend the line, to lower the bar, to parse the details such that it would be okay for any one of us to be hustled away, never to be seen or heard from again.

    I will take my chances with "terrorists," thank you, if the alternative is wondering when my own government will decide the freedoms we still have mean nothing.

    even the ninth circuit!!! (none / 0) (#2)
    by diogenes on Wed Sep 08, 2010 at 11:33:57 PM EST
    If the entire panel of the Ninth Circuit, of all circuits, won't go along with the ACLU, then maybe the ACLU just doesn't have the law on it's side.
    Perhaps the current Democratic majorities in Congress can pass explicit laws to change this.

    Hahaha (none / 0) (#4)
    by PatHat on Thu Sep 09, 2010 at 04:23:02 AM EST
    yeah, right. I think this Dem Congress is motivated to do anything that anyone can possibly attack as being weak on something. We live in Bizarro world right now.

    Can someone explain (none / 0) (#6)
    by Abdul Abulbul Amir on Thu Sep 09, 2010 at 07:52:37 AM EST

    Can someone explain how a mere provider of transportation services should be the target of such lawsuits?  If there is a target at all its the feds.  Even if as asserted what the government did was unlawful, how would an air taxi service ever be able to reasonably make that determination on a case by case basis?

    Try driving around... (5.00 / 1) (#7)
    by kdog on Thu Sep 09, 2010 at 08:28:44 AM EST
    a kidnap victim...and see what happens Abdul:)

    You would be providing transportation services in aid of a felony...which last I checked is a crime.  If not charged criminally, you could be sued by that kidnap victim.  Just because Uncle Sam is the kidnapper doesn't mean you aren't liable for your actions aiding Uncle Sam in the kidnapping.



    Not the same (none / 0) (#9)
    by jimakaPPJ on Thu Sep 09, 2010 at 08:31:58 AM EST
    The same would be driving around someone the police has arrested after being hired by the police.

    No (5.00 / 3) (#11)
    by Romberry on Thu Sep 09, 2010 at 09:04:03 AM EST
    The same would be delivering someone to be tortured (a criminal act) on behalf of the police (who hired you to make the delivery.)

    It's all a crime. Jeppesen knew what they were doing and the reason they were the subject of this suit is because they were the only subject against which any way could be found to even potentially bring suit. The US government shielded itself from the rest. And now the Obama admin has succeeded in shielding Jeppesen as well.


    The CIA does not have arrest powers... (none / 0) (#10)
    by kdog on Thu Sep 09, 2010 at 08:53:31 AM EST
    unless I missed a change the last few years, which is quite possible.  

    Can anyone confirm?  Was the granting of arrest powers to the CIA buried in the Patriot Act or somthing or are they still "technically" just an intelligence gathering org?


    Can anyone confirm? (none / 0) (#21)
    by Abdul Abulbul Amir on Thu Sep 09, 2010 at 11:33:43 AM EST

    You confirm that it is damn near impossible for a civilian to know which flavor of federal officer is legally barred/allowed to escort a prisoner in transit.  

    You said it... (none / 0) (#24)
    by kdog on Thu Sep 09, 2010 at 11:46:05 AM EST
    I did a little googling, it appears as of 2008 CIA agents still had no arrest powers, though it had been debated whether to give them that power.  Not that laws apply to the CIA or anything.

    Im thinking its fairly safe to say every time the CIA picks somebody up they commit kidnapping, depending on the laws of the country/locality where they pick somebody up...I think they're supposed to call in the FBI if suspect is in the US, local law enforcement if abroad...but in practice, they do whatever they f8ck they want, we just pay the tab.


    Well, the CIA sure (none / 0) (#22)
    by jimakaPPJ on Thu Sep 09, 2010 at 11:40:11 AM EST
    captured the main 9/ll planner/terrorist and waterboarded him.

    But I think you understood my analogy.


    kidnap (none / 0) (#20)
    by Abdul Abulbul Amir on Thu Sep 09, 2010 at 11:28:50 AM EST

    You would be providing transportation services in aid of a felony...which last I checked is a crime.

    The point remains, how is one to determine that say two federal officers with what appears to be legit paperwork and passports are kidnapping as opposed to lawfully transporting a prisoner?


    It appears difficult... (5.00 / 1) (#25)
    by kdog on Thu Sep 09, 2010 at 11:49:00 AM EST
    no doubt, but difficulty in following the law, or ignorance of the law, is no defense...also last I checked.

    The prisoners involved (none / 0) (#28)
    by jimakaPPJ on Thu Sep 09, 2010 at 11:56:15 AM EST
    were captured outside the US.

    Some at the behest of the US.

    What's next? Lawyers for people captured in battle??


    Treatment of "people captured in battle" (none / 0) (#30)
    by sj on Thu Sep 09, 2010 at 12:06:56 PM EST
    equals treatment of "prisoners of war".  The Geneva conventions spells that out quite clearly.  It appears you're just throwing sh!t at the wall right now to see what sticks.

    POW and Geneva Convention deals (none / 0) (#31)
    by BTAL on Thu Sep 09, 2010 at 12:13:57 PM EST
    with enemy combatants of foreign nations, not terrorist organizations.

    If that was the case (5.00 / 1) (#13)
    by CST on Thu Sep 09, 2010 at 10:13:50 AM EST
    that was made that would be one thing.  That's not what we got.  What we got is the government telling us we're not even allowed to challenge that notion in court.

    Just curious, how did you feel about the case against Osama Bin Laden's driver?


    et tu (none / 0) (#14)
    by diogenes on Thu Sep 09, 2010 at 10:52:41 AM EST
    Well, how do YOU feel about the case against Osama Bin Laden's driver?

    he got (5.00 / 1) (#19)
    by CST on Thu Sep 09, 2010 at 11:15:16 AM EST
    5.5 years.  The #1 thing that I feel about the case against Osama Bin Laden's driver is that I'm glad he got his day in court.  I didn't see all the evidence and I didn't pay extremely close attention to the case so I don't have a firm opinion on the verdict.

    On a gut level 5.5 years for a low level operative feels in the range of normal for a sentance of "providing material support for terrorism".  Which I would say is pretty much exactly what this driver did as well.

    Bottom line is, the government was able to make their case against him, and he was able to defend himself in court.  And I would not have tried to prevent that from happening, no matter what the verdict was.


    Chiming in... (none / 0) (#17)
    by kdog on Thu Sep 09, 2010 at 11:00:46 AM EST
    since I kinda see the CIA and AQ as similar outfits...what's good for the goose should be good for the gander.  If Osama's driver(s) are liable for everything evil Osama and AQ do, so should the CIA's drivers...and vice versa.  A terrorist org is a terrorist org...even if they're "our" terrorists.

    Personally I'd rather go after the big fish...Osama and AQ leadership, CIA & US leadership...not the low-level employees or sub-contractors...though I'm not opposed to some prosecution for aiding and abetting the dirty deeds, just not down with making them the fall guys taking the whole rap.


    AQ and the CIA the same?? (1.00 / 1) (#26)
    by jimakaPPJ on Thu Sep 09, 2010 at 11:49:29 AM EST
    Come on, man. You know better than that and I am totally surprised at you.

    Giving any kind of equivalence between an non-governmental terrorist organization that stones women,claims women cause their rape, hangs gays, denies schooling for females, approves of honor killings and our government is unbelievable.

    And the way you break any criminal organization is to arrest/convict and hopefully turn the smaller fish.


    C'mon Jim... (5.00 / 1) (#27)
    by kdog on Thu Sep 09, 2010 at 11:54:39 AM EST
    the decades long list of crimes against humanity committed by the CIA is well documented...up to and including terrorism and murder.

    Argue their crimes are necessary if you must, but don't play dumb.


    If you want to (none / 0) (#29)
    by jimakaPPJ on Thu Sep 09, 2010 at 12:02:52 PM EST
    separate the "crimes" of the CIA from AQ that works.

    But when you compare them you are giving their actions against us, and others both non-Muslim and Muslim, equivalence.

    Has the CIA paramilitary arm been involved in some nasty work?


    Did they over reach?

    Here you are going to have to be specific and look at the situation.

    For example, we were involved in placing the Shah of Iran in power. The alternative was letting a Soviet puppet win and give the Soviets a warm water port in the middle east.


    The action... (5.00 / 1) (#33)
    by kdog on Thu Sep 09, 2010 at 12:59:25 PM EST
    of being terrorized or murdered are equivalent old buddy...terrorized is terrorized, dead is dead.

    All it takes to see the striking similarities between both organizations is a little objectivity.


    "warm water port" (none / 0) (#35)
    by jondee on Thu Sep 09, 2010 at 01:30:19 PM EST
    jesus, with company man-lap dog friends like you, BP will never need...more friends.

    shorter Jim (and his ilk) (none / 0) (#36)
    by jondee on Thu Sep 09, 2010 at 01:42:07 PM EST
    all that torture, subverting of the will of the people, assassinations etc was in the service of opposing any commies who ITT, Bank of America and BP said were commies..

    There's always a rationale, even if (5.00 / 1) (#38)
    by Anne on Thu Sep 09, 2010 at 01:56:00 PM EST
    it's weak and easily countered.

    But as long as there are those willing to rationalize what the government does - things that are plainly antithetical to the principles and freedoms it purports to be protecting - overreaching will always be possible - especially if the goverment provides generous financial incentive.


    A rose by any other name smells the same (none / 0) (#23)
    by jimakaPPJ on Thu Sep 09, 2010 at 11:41:39 AM EST
    Call it what you like, that is one of its effects.

    Speaking of smells.. (none / 0) (#34)
    by jondee on Thu Sep 09, 2010 at 01:26:43 PM EST
    Mossedeq was a "Soviet puppet" has the smell of covering-for-corporate-crime b.s all over it. And if you have any solid evidence to the contrary lets see it.

    Mossedeq's crime was being democratically elected and threatening to nationalize some of BP's oil fields in Iran; for which crime British Intel and CIA goons decided he had to pay. It's pretty much that simple.


    Not the point (5.00 / 1) (#15)
    by ruffian on Thu Sep 09, 2010 at 10:54:03 AM EST
    Whether the suit would be won or lost on the merits is for another day. But you can't try the case if the information is sealed.

    They couldn't (none / 0) (#8)
    by jimakaPPJ on Thu Sep 09, 2010 at 08:30:07 AM EST
    This was a variation of the "slap suit."

    Glenn Greenwald, felled by the flu, (none / 0) (#37)
    by oculus on Thu Sep 09, 2010 at 01:51:42 PM EST
    addresses this case today.

    And here's a link... (none / 0) (#39)
    by Romberry on Thu Sep 09, 2010 at 02:05:43 PM EST
    ...to Greenwald's take.

    Obama wins the right to invoke "State Secrets" to protect Bush crimes

    As usual, Glenn knocks it out of the park. I posted a link and excerpt to that article in the Obama thread and a few others at Salon's Table Talk last night and was essentially greeted with a collective shrug, a few "yeah, but think how much worse it would be if the Republicans were in power" and at least one guy who, even given that I have been a staunch liberal and Democratic partisan on that forum for a dozen years, has decided that I am actually a very stealthy undercover Republican operative in the pay of the Koch family.

    The whole damn thing has depressed me to the point that I dug out an old Starland Vocal Band cover of Paul Simon's "American Tune" from their 1976 debut album. And then I decided to put the lyrics and an embedded YouTube up on a page (An American Tune) that makes use of some personal web space. Great song. Depressing, but a great song.