NY Times September 8, 2010
Court Dismisses a Case Asserting Torture by C.I.A.
By CHARLIE SAVAGE
WASHINGTON — A federal appeals court on Wednesday ruled that
former prisoners of the C.I.A. could not sue over their alleged
torture in overseas prisons because such a lawsuit might expose
secret government information.
The sharply divided ruling was a major victory for the Obama
administration’s efforts to advance a sweeping view of executive
secrecy powers. It strengthens the White House’s hand as it has
pushed an array of assertive counterterrorism policies, while
raising an opportunity for the Supreme Court to rule for the first
time in decades on the scope of the president’s power to restrict
litigation that could reveal state secrets.
By a 6-to-5 vote, the United States Court of Appeals for the Ninth
Circuit dismissed a lawsuit against Jeppesen Dataplan Inc., a
Boeing subsidiary accused of arranging flights for the Central
Intelligence Agency to transfer prisoners to other countries for
imprisonment and interrogation. The American Civil Liberties Union
filed the case on behalf of five former prisoners who say they
were tortured in captivity — and that Jeppesen was complicit in
that alleged abuse.
Judge Raymond C. Fisher described the case, which reversed an
earlier decision, as presenting “a painful conflict between human
rights and national security.” But, he said, the majority had
“reluctantly” concluded that the lawsuit represented “a rare case”
in which the government’s need to protect state secrets trumped
the plaintiffs’ need to have a day in court.
While the alleged abuses occurred during the Bush administration,
the ruling added a chapter to the Obama administration’s
aggressive national security policies.
Its counterterrorism programs have in some ways departed from the
expectations of change fostered by President Obama’s campaign
rhetoric, which was often sharply critical of former President
George W. Bush’s approach.
Among other policies, the Obama national security team has also
authorized the C.I.A. to try to kill a United States citizen
suspected of terrorism ties, blocked efforts by detainees in
Afghanistan to bring habeas corpus lawsuits challenging the basis
for their imprisonment without trial, and continued the C.I.A.’s
so-called extraordinary rendition program of prisoner transfers —
though the administration has forbidden torture and says it seeks
assurances from other countries that detainees will not be mistreated.
The A.C.L.U. vowed to appeal the Jeppesen Dataplan case to the
Supreme Court, which would present the Roberts court with a fresh
opportunity to weigh in on a high-profile test of the scope and
limits of presidential power in counterterrorism matters.
It has been more than 50 years since the Supreme Court issued a
major ruling on the state-secrets privilege, a judicially created
doctrine that the government has increasingly used to win
dismissals of lawsuits related to national security, shielding its
actions from judicial review. In 2007, the Supreme Court declined
to hear an appeal of a similar rendition and torture ruling by the
federal appeals court in Richmond, Va.
The current case turns on whether the executive can invoke the
state-secrets privilege to shut down entire lawsuits, or whether
that power should be limited to withholding particular pieces of
secret information. In April 2009, a three-judge panel on the
Ninth Circuit adopted the narrower view, ruling that the lawsuit
as a whole should proceed.
But the Obama administration appealed to the full San
Francisco-based appeals court. A group of 11 of its judges reheard
the case, and a narrow majority endorsed the broader view of
executive secrecy powers. They concluded that the lawsuit must be
dismissed without a trial — even one that would seek to rely only
on public information.
“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,” Judge Fisher wrote. “Although as judges we
strive to honor all of these principles, there are times when
exceptional circumstances create an irreconcilable conflict
between them.”
Ben Wizner, a senior A.C.L.U. lawyer who argued the case before
the appeals court, said the group was disappointed in the ruling.
“To this date, not a single victim of the Bush administration’s
torture program has had his day in court,” Mr. Wizner said. “That
makes this a sad day not only for the torture survivors who are
seeking justice in this case, but for all Americans who care about
the rule of law and our nation’s reputation in the world. If this
decision stands, the United States will have closed its courts to
torture victims while providing complete immunity to their torturers.”
Some plaintiffs in the case said they were tortured by C.I.A.
interrogators at an agency “black site” prison in Afghanistan,
while others said they were tortured by Egypt and Morocco after
the C.I.A. handed them off to foreign security services.
The lead plaintiff is Binyam Mohamed, an Ethiopian citizen and
legal resident of Britain who was arrested in Pakistan in 2002. He
claimed he was turned over to the C.I.A., which flew him to
Morocco and handed him off to its security service.
Moroccan interrogators, he said, held him for 18 months and
subjected him to an array of tortures, including cutting his penis
with a scalpel and then pouring a hot, stinging liquid on the open
wounds.
Mr. Mohamed was later transferred back to the C.I.A., which he
said flew him to its secret prison in Afghanistan. There, he said,
he was held in continuous darkness, fed sparsely and subjected to
loud noise — like the recorded screams of women and children — 24
hours a day.
He was later transferred again to the military prison at
Guantánamo Bay, Cuba, where he was held for an additional five
years. He was released and returned to Britain in early 2009 and
is now free.
There were signs in the court’s ruling that the majority felt
conflicted. In a highly unusual move, the court ordered the
government to pay the plaintiffs’ legal costs, even though they
lost the case and had not requested such payment.
Judge Fisher, who was a senior Justice Department official before
President Bill Clinton appointed him to the bench in 1999, also
urged the executive branch and Congress to grant reparations to
victims of C.I.A. “misjudgments or mistakes” that violated their
human rights if government records confirmed their accusations,
even though the courthouse was closed to them.
_
He cited as precedent payments made to Latin Americans of Japanese
descent who were forcibly sent to United States internment camps
during World War II. But the five dissenting judges criticized the
realism of that idea, noting that those reparations took five decades.
“Permitting the executive to police its own errors and determine
the remedy dispensed would not only deprive the judiciary of its
role, but also deprive plaintiffs of a fair assessment of their
claims by a neutral arbiter,” Judge Michael Daly Hawkins wrote.
After the A.C.L.U. filed the case in 2007, the Bush administration
asked a district judge to dismiss it, submitting public and
classified declarations by the C.I.A. director at the time,
Michael Hayden, arguing that litigating the matter would
jeopardize national security.
The trial judge dismissed the case. As an appeal was pending, Mr.
Obama won the 2008 presidential election. Although he had
criticized the Bush administration’s frequent use of the
state-secrets privilege, in February 2009 his weeks-old
administration told the appeals court that it agreed with the Bush
view in that case.
In September 2009, Attorney General Eric H. Holder Jr. issued a
new state-secrets privilege policy requiring high-level approval,
instructing officials to try to avoid shutting down lawsuits if
possible, and forbidding its use with a motive of covering up
lawbreaking or preventing embarrassment.
The administration told the court that using the privilege in the
Jeppesen Dataplan case complied with that policy.
Judge Fisher agreed that “the government is not invoking the
privilege to avoid embarrassment or to escape scrutiny of its
recent controversial transfer and interrogation policies, rather
than to protect legitimate national security concerns.”
Jeppesen Dataplan and the C.I.A. referred questions to the Justice
Department, where a spokesman, Matthew Miller, praised its new
standards.
“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,” Mr. Miller said.