by Jeremy Leaming
The federal appeals court decision rejecting a lawsuit brought by former prisoners charging the CIA with abducting and transporting them to secret prisons in other countries where they were tortured is garnering widespread derision as a dangerous continuation of unwieldy executive power.
In Mohamed et al. v. Jeppesen Dataplan, Inc., the full U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit lodged in 2007 on behalf of five men kidnapped by the CIA and sent to other countries for imprisonment and interrogation. The ACLU represented the men and argued that they had been tortured during their imprisonment. The Bush and Obama administrations argued that the lawsuit should be dismissed because it could uncover so-called "state secrets," undermining national security. The Ninth Circuit sided with the government, maintaining that it represented a "rare case" in which the government's claims to protect national security were stronger than considering whether human rights were violated.
The ACLU's Ben Wizner, who represented the former prisoners, said in a press release, "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."
The New York Times editorial board blasted the Ninth Circuit's decision, saying it "diminishes any hope that this odious practice [extraordinary rendition, where military captives are sent to secret prisons in other countries] will finally receive the legal label it deserves: a violation of international law."
The Atlantic blogger Andrew Sullivan writes:
The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.
The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.
For discussion on the history of the government's use of the "state secrets" privilege, see an ACS panel discussion, including Wizner, here.