Court allows landmark torture renditions case to proceed
Published: April 28, 2009
Updated 1 year ago
Ruling strikes major blow to Bush/Obama position on state secrets
A federal appeals court ruled Tuesday to reinstate an ACLU lawsuit against a Boeing subsidiary that allegedly helped the CIA transport terror war prisoners to so-called black sites where they were tortured. The Obama administration had argued the case’s very existence would endanger national security and pressed the court to dispose of it.
“Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ’secrets’ in a court of law,” said Ben Wizner, staff attorney with the ACLU National Security Project, in a media advisory.
“In a 26-page ruling, the 9th U.S. Circuit Court of Appeals found that the federal government failed to document how the lawsuit would reveal state secrets, sending the case back to San Jose U.S. District Judge James Ware for further proceedings,” reported Mercury News. “Ware dismissed the lawsuit last year, concluding that litigation over the controversial flight program could prompt the disclosure of CIA secrets.”
“The government finally urges us to affirm according to Reynolds because, in its view, there is ‘no possibility’ that plaintiffs can establish a prima facie case, or that Jeppesen can defend itself, ‘without using privileged evidence,’” the court ruled in a 26 page decision. “We are unpersuaded because acceding to the government’s request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered.”
“In a way, the ruling wasn’t un-expected,” wrote Marc Ambinder at The Atlantic. “The ninth circuit has been increasingly impatient with blanket assertions of the privilege even as they’ve been deferential to the government’s concerns about protecting national security information.”
“The court did not address the plaintiffs’ claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties,” reported the San Francisco Chronicle.
“The reason why this case is significant is that it appears to restrict the use of the state-secrets privilege to dismiss entire cases only if the plaintiff has a secret agreement with the government to withhold information, which obviously isn’t the case here,” noted the American Prospect. “Now the administration can appeal this decision, but if this ruling holds, what it essentially means is the end of the use of the states-secrets privilege to dismiss entire cases unless there is a prior agreement between the plaintiff and the government to keep that information secret. In other words, if Jeppesen were suing the government, the case could be dismissed. But otherwise, the use of the state-secrets privilege is restricted to withholding specific pieces of evidence, as it was originally intended. The administration won’t be able to dismiss entire cases except within a certain narrow criteria.”
“According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law,” ruled Judge Michael Daly Hawkins in the 3-0 decision.
“As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a ‘gross and notorious … act of despotism,’” he concluded.
“The Ninth Circuit’s decision in the Jeppesen case is the latest example of courts being skeptical of the government’s argument that entire cases should be dismissed based on the assertion of the state secrets privilege without any evidence being considered,” said Sen. Russ Feingold (D-WI) in a prepared statement. “It underlines the need for the State Secrets Protection Act, which puts in place a reasonable system for assessing state secrets claims. I urge the Obama administration to get behind the bill and help us pass it this year.”
Salon called it a “major defeat for the Bush/Obama position on secrecy.”
“Today’s decision is a major defeat for the Obama DOJ’s efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny,” wrote Glenn Greenwald. “Given how Obama recently emphasized how committed he is to defending government secrecy powers in court, it it highly likely the Obama DOJ will attempt to appeal this ruling further — to a full 9th Circuit panel and/or to the Supreme Court — but in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly ’secret’ (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.”
“I am happy to hear this news,” said Bisher Al-Rawi, a plaintiff in this case, in an ACLU press release. “We have made a huge step forward in our quest for justice.”
The case is Mohamed v. Jeppesen Dataplan (PDF link).
This story has been updated from a previous version.
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The transfer of power by peaceful means. Oh, how a star can shine!
There is a lot more to the Torture and Rendition Flights as they both need to be connected together!
I was in a family for more than 26 years who were directly involved in the CIA Rendition Flights.
Meet the Family:
Mexico drug plane used for US ‘rendition’ flights: report
Sep 4, 2008
http://afp.google.com/article/ALeqM5j6QonBKKMo2gw1e3ql-xUcQEZbVg
The Rendition Flights are one thing, the ~4TON’S of cocaine on board Clyde’s plane is another and if you research more, you’re going to find a lot more too. Clyde O’Connor is family to me. Clyde is my ex-sister-in-law’s brother. Her husband is my ex-wife’s brother and the two of them are Business partners! As I said above, don’t sit on the Rendition flights as this is only the tip of a very huge Iceberg! You won’t beleive what else is involved too.
Marty Didier
Northbrook, IL
Damn those activist judges! Sticking to the rule of law, how DARE they!
It’s about bloody time this moves forward.
“Today’s decision is a major defeat for the Obama DOJ’s efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny,”
Orwellian change we can’t believe in. Obama’s “looking forward, not backwards” is the equivalent of Pelosi’s “impeachment is off the table”. Both statements are antithetical to Democracy and cancerous to the concept of Justice.
So Obama, are you going to fight the American people back and appeal the case? Your SS is on the line. Are you going to accept the decision, or will you deserve a big “Sieg Heil, mein fuhrer” later this week?
This secrecy shit is for the birds! I’m SICK AND TIRED of it!
*adjusts tinfoil hat*
That Obama has embraced, continued, and sometimes even expanded some of the Bush administration’s most dark and un-American policies is subtly and deeply disturbing. He was once a professor of Constitutional Law but becoming president seems to have disconnected that knowledge and experience from his current decision making process. He is not the hateful, warmongering, idiocracy that is made flesh in the neo-conservative movement and yet there are similar foundational stances in his domestic and foreign policy.
Maybe it really is true that the American system of government at its core runs autonomously from The People it was initially designed to serve. Maybe that disconnect happened gradually and quietly a long time ago. Perhaps it really is true that whether we select a Democrat or Republican we are only emotionally moved by the drama of the theater of their play but the real writers of the lines of both protagonists have never come out for a curtain call.
Whether you perceive a White Hat or a Black Hat being worn by the characters in this movie is inconsequential. They are all just actors and you will never see the producer.
Obama’s 100 days
29 April 2009
Since President Franklin Roosevelt’s fabled “Hundred Days,” a new US administration’s 100th day has served as an occasion for media comparisons to Roosevelt—usually at the expense of history and truth. This year, such comparisons abound, in part because Barack Obama’s first months have been dominated by a global economic crisis of a scale not seen since the Great Depression, and in part because Obama’s liberal supporters have sought to credit Obama with launching a modern version of Roosevelt’s reformist New Deal.
But Obama’s first 100 days have made clear the right-wing character of his administration and the class interests it serves.
As the World Socialist Web Site noted upon Obama’s inauguration, “the mounting contradictions of American capitalism abroad and the sharpening social divisions at home” would sooner rather than later disabuse millions of their illusions in Obama. (See: “On the eve of Obama’s inauguration”).
If the polls are to believed, there are still many workers and youth who, while opposing the policies coming from Washington, maintain the hope that Obama will bring about the “change” he promised in his campaign. Yet there is a growing sense that, whatever the shifts in style—which, as it turns out, have been less dramatic than anticipated—the substance remains largely the same.
In foreign policy, Obama has continued the militarist and aggressive thrust of the Bush administration’s policies.
The war in Iraq continues, with troop levels virtually unchanged. Now, as the security situation deteriorates, top US generals openly state that Obama’s plan for a limited withdrawal is unviable. At the same time, Obama has not only expanded the war in Afghanistan, but, in violation of international law, extended it to neighboring Pakistan. His budget proposal includes the largest appropriation for military spending in history.
Obama has done nothing to curtail the anti-democratic policies, programs and institutions built up during the Bush years in the name of the “war on terror.”
His administration has intervened in court cases to lock away as state secrets information about the massive government spying operation directed against the population—the better to continue and expand it, and block the efforts of victims of US crimes such as “extraordinary rendition” to hold accountable those who participated in such actions.
In the name of “moving on,” Obama has sought to block any investigation, much less criminal prosecution, of those in the Bush administration and the spy agencies and military who ordered and carried out torture against detainees.
And while Obama has pledged to eventually close the prison camp at Guantánamo Bay, it remains open, and its inmates face the prospect of being shipped to other US military prisons, such as those in Iraq and Afghanistan. Meanwhile, the Obama administration has intervened in court cases to deny habeas corpus rights to prisoners at US camps in Afghanistan and uphold the president’s “right” to declare individuals enemy combatants and imprison them indefinitely, without recourse to judicial appeal.
The Obama administration’s class orientation has been established by its response to the economic crisis.
Over the past year, the majority of the population has witnessed a rapid erosion of its social position, the result of mounting layoffs, wage cuts and precipitous declines in home values and retirement savings. The epidemic of home foreclosures continues unabated. Hunger and homelessness are rampant. After decades of spending cuts, government programs have proven to be more sieve than safety net.
Obama’s response to this calamity has been to appropriate hundreds of billions of dollars in public funds and hand them over to the finance industry. The central focus of his actions and pronouncements has been to reassure Wall Street of his determination to protect its wealth and power.
The message has been received. The run-up in share values on the major American exchanges that began in early March reflects, more than anything else, the confidence of rich investors that in Obama they have a president who will do their bidding.
Even prior to assuming office, Obama accepted the framework of the Bush administration’s approach to the crisis. In October, as the Democratic nominee for the presidency, Obama lobbied vigorously for passage of the Troubled Asset Relief Program (TARP). As president-elect, he urged Congress to appropriate the second $350 billion installment of TARP. As president, he choose for his treasury secretary Timothy Geithner. As president of the Federal Reserve Bank of New York, Geithner had established the closest ties to the Wall Street elite. When the financial crisis hit, he served as the point man for the Bush administration’s bailout program. His appointment by Obama was the surest signal to the bankers that they had a friend in the White House.
Last month, Geithner announced the details of the Public-Private Investment Program, the next phase of the government bailout, by which the government will subsidize and virtually guarantee handsome profits to hedge funds and private investment firms that purchase toxic assets from the banks at inflated prices.
It is estimated that between cash infusions, loans and guarantees on debt, the federal bailout of Wall Street now exceeds $10 trillion. This dwarfs Obama’s $787 billion stimulus package, which will do next to nothing to relieve the suffering of millions.
The transfer of taxpayer funds to the banks has failed to free up credit and “kick-start” lending, as promised. Instead, the banks have hoarded their government cash, while doling out a large share of it to the very executives whose reckless and fraudulent policies precipitated the economic crash.
In the wake of public anger over revelations that the bailed out insurance giant, American International Group (AIG), was paying tens of millions of dollars in bonuses to the top traders and executives at its financial products division, Obama, after declaring his “outrage,” came out against congressional legislation that would have imposed a surtax on some bonuses awarded by firms receiving TARP funds.
Yet Obama has had no compunction in demanding that the contracts of auto workers be ripped up and massive job cuts and reductions in wages and benefits be imposed. Obama’s intervention in the auto industry demonstrates his ferocious prosecution of class warfare in the interests of the financial oligarchy.
After only 100 days of the new administration, workers and youth are coming face to face with the fact that Obama represents no change from the anti-working class, anti-democratic and militaristic polices of his predecessor. His presidency has already established the impossibility of effecting real change in government policy by means of elections within the framework of the existing two-party system, or through appeals to the Democratic Party.
The defense of the interests of working people is the task of the working class itself. It must mobilize its strength in social and political struggle independently of the two parties of the ruling elite, fight to break the stranglehold of the financial aristocracy on society, and advance its own socialist alternative to the bankrupt capitalist system.
Tom Eley
http://www.wsws.org/articles/2009/apr2009/pers-a29.shtml
Very comprehensive and well put. You refer to them as ruling elite, or aristocracy. I just call them the Plutocracy.
I agree with everything you said up until the last sentence. Pure socialism is just as fucked up as pure capitalism. Office politics replaces greed. The guy that gets to live in the big house at the beach is just the best schmoozer; the most gifted of the corrupt ones.
The solution is a well-regulated free enterprise system with the critical elements only (health care, energy, utilities) nationalized. Government run factories to build refrigerators is a really bad idea.
If you say the goal is socialism in America, you will lose the war before the first battle begins.
We shall see if this goes anywhere.