There are many awful legacies of the Bush administration's criminal embrace of torture in the months and years following the 9/11 attacks. Among the most agonizing — for the torture victims themselves, and for the lawyers who have represented them — is that not a single one of those victims has had his day in court. And not a single court that has been faced with a torture suit has addressed the core question of whether the victims' legal rights were violated.

This is, of course, a tragedy for the victims, who must live with the twin traumas of having been tortured by the state and turned away by its courts. But it is also a grave threat to the rule of law. Without definitive adjudication of the legality of torture, we face the risk that the door has been left open to future abuses.

Of course, the courts are not alone in turning a blind eye to torture victims; both the Bush and Obama administrations have actively subverted victims' attempts to obtain compensation and redress. Indeed, each of the democratic institutions that should have provided a check on abuses — and a remedy for the abused — has instead engaged in a kind of accountability shell game.

ACLU client Khaled El-Masri's case is illustrative. In a notorious case of mistaken identity, El-Masri, a German citizen, was kidnapped by the CIA in Macedonia, "rendered" to a CIA black site in Afghanistan, detained and tortured for several months, then released without apology or explanation. When a German reporter asked Secretary of State Condoleezza Rice whether the United States would provide redress for its horrific abuse of El-Masri, she responded: "When mistakes are made, we work very hard to rectify them. I believe that this will be handled in the proper courts, here in Germany and if necessary in American courts as well."

El-Masri sought to bring his claims to those "proper courts," both in the United States and in Germany. But this was a bait and switch: rather than "handle" El-Masri's claims, the American courts told El-Masri, at the insistence of the executive, that he had come to the wrong place. "If El-Masri's allegations are true or essentially true," wrote a federal judge, "then all fair-minded people . . . must also agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy. Yet, it is also clear . . . that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch." We now know — through documents released by Wikileaks — that Secretary Rice's State Department expended considerable diplomatic resources in seeking to terminate El-Masri's judicial proceedings in Germany, as well.

El-Masri was not alone. When five other victims of the CIA's extraordinary rendition program, also represented by the ACLU, sought judicial redress against a government contractor that had knowingly profited from arranging their torture flights, the court told them, in effect, to look elsewhere: "Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs." The executive branch, the court insisted could "determine whether plaintiffs' claims have merit and whether misjudgments or mistakes were made that violated plaintiffs' human rights." And if that didn't work, "Congress also has the power to enact private bills." This was doubly absurd: Congress, of course, had already enacted public bills prohibiting torture — the very laws that the executive had violated and the courts had disregarded.

ACLU client Jose Padilla encountered a different version of the accountability shell game: two courts pointing the finger at each other. Padilla, an American citizen, was seized by the military from a New York jail, unilaterally designated an "enemy combatant" by the president, detained incommunicado without charge or trial in a Naval brig in Charleston, South Carolina, and subjected to vicious interrogations, chilling sensory deprivation, and total isolation. After three years and eight months of illegal military detention, Padilla was returned to the civilian justice system and prosecuted for crimes wholly unrelated to his dubious "enemy combatant" designation.

When Padilla sued his torturers, seeking one dollar in compensation as well as recognition that his rights had been violated, he was told, remarkably, that he had already had ample opportunity to air his grievances. "It is not as if the American judicial system has failed to afford [Padilla] significant opportunities to vindicate his legal rights," opined the judge. In particular, Padilla "was allowed in his criminal proceeding to raise issues of his detention in support of his motion to dismiss the criminal charges." But the judge declined to mention that when Padilla had attempted to raise those issues in his criminal case, he was told that he was in the wrong venue, and that he was "free to institute . . . an action for monetary damages or any other form of redress that he is legally entitled to pursue."

"It ain't me, babe," sings Bob Dylan in a famous lyric. "It ain't me you're looking for." This has been the unvarying response of our courts and our Presidents to the powerful legal and moral claims of torture victims. The best that can be said about this chronic institutional buck-passing is that it betrays a degree of shame.

That shame now belongs to all Americans. These terrible things were done in our name. And the failure to acknowledge the victims has been carried out in our name as well.

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Last month, the Supreme Court announced it would not hear the case we brought against Boeing subsidiary Jeppesen Dataplan on behalf of five victims of the CIA's extraordinary rendition program. Our lawsuit charged that the company knowingly provided direct logistical support to the aircraft and crews used by the CIA for the kidnapping and torture program.

We filed the lawsuit back in May 2007, and while the federal government wasn't named as a defendant in the suit, the government intervened in the case anyway to shield Jeppesen with the "state secrets" privilege, asserting that even allowing the case to be heard in a court of law would jeopardize national security. But as ACLU legal director Steve Shapiro said after the Supreme Court's refused to hear the case: "In a nation committed to the rule of law, unlawful activity should be exposed, not hidden behind a 'state secrets' designation."

One of the victims of the rendition program, Canadian citizen Maher Arar, who also asked the Supreme Court to hear his case and was also refused, is among the subjects of Amnesty International's 50 Years of Human Rights campaign, marking the 50th anniversary of the organization's founding. (You guys are just babies! We turned 90 last year!) This cool infographic encapsulates Arar's story (click to enlarge):

Today is the first day of Torture Awareness Month. Ask President Obama to honor those who stood against rendition, torture and abuse by sending a letter to the White House today.

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Last Friday, in yet another example of other countries pursuing justice for the victims of the U.S. rendition and torture program, the European Court of Human Rights announced that it will review Macedonia's role in the CIA's kidnapping and subsequent torture of German citizen Khaled el-Masri. The case was brought before the court by the Open Society Justice Initiative.

El-Masri was kidnapped from Macedonia in 2003 at the behest of the U.S. government and transferred to the "Salt Pit," a secret prison in Afghanistan, where he was held for four months and tortured. He was then dumped, "like a piece of luggage," on a hillside in Albania. He was never charged with a crime, and despite ample evidence, the U.S. has never admitted its involvement with el-Masri's abduction and torture.

The ACLU represented el-Masri in a lawsuit brought in 2005 charging then-CIA director George Tenet violated U.S. and universal human rights laws when he authorized agents to abduct and torture el-Masri. The "merits" of the case—whether Tenet did indeed break the law by authorizing el-Masri's rendition—were never heard in a court of law. Instead, the case was dismissed on state secrets grounds in the district and appeals courts, and the U.S. Supreme Court declined to hear the case.

So while el-Masri's case will never see the light of day in a U.S. court, Germany, Spain and Poland are investigating his rendition. Poland, Lithuania, and the U.K. are also engaged in investigations about extraordinary rendition more broadly.

But back here in the U.S., not so much.

Today, the English Court of Appeals ordered the publication of previously secret information pertaining to the abuse of Binyam Mohamed, a former British detainee who was held in U.S. custody. Today's decision affirmed an earlier High Court ruling that ordered the release of seven paragraphs that the British government sought to suppress. The paragraphs reveal what the whole world already knew: the British government's complicity with the United States in the torture of Mohamed.

As the Court of Appeals noted in their decision, the information at issue had already been placed in the public domain through a U.S. court decision in November 2009. In that case the judge, after reviewing extensive evidence of Mohamed's allegations of torture, noted that the government did "not challenge or deny the accuracy of Binyam Mohamed's story of brutal treatment."

Larry Siems discusses this particular decision in detail over at The Torture Report.

As Larry also reminds us today, the reason the U.K. government sought the suppression of those seven paragraphs is because the Obama administration "explicitly threatened that publishing the information would harm the intelligence-sharing relationship between the two nations." British Foreign Secretary David Miliband argued that the publication of those seven paragraphs would endanger Britain's national security.

While Mohamed's case has wound its way through the English courts, he has also sought justice in American courts as the lead plaintiff in the ACLU's lawsuit against Jeppesen DataPlan. That lawsuit, Mohamed v. Jeppesen, charges that Jeppesen, a wholly owned subsidiary of the Boeing Aerospace company, knowingly participated in the CIA's forced disappearance and torture of Mohamed and four other men through the provision of critical flight planning and logistical support services to the aircraft and crews used by the CIA in its "extraordinary rendition" program.

The Obama administration has sought to dismiss the Jeppesen case at the very outset by invoking the state secrets privilege, claiming that allowing this case to proceed will endanger national security.  Last December, the case was reheard by an en banc panel of 11 judges in the 9th Circuit Court of Appeals. We await their decision.

Binyam Mohamed was under the control or in the custody of U.S. authorities for seven years before his release back to his home in England in February last year.  For those seven long years he was subjected to torture and other horrific abuse.  And, as the English Court of Appeals notes in today's judgment:

There is no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities. We are no longer dealing with the allegations of torture and ill-treatment: they have been established in the judgment of the court, publicly revealed by the judicial processes within the USA itself.

Although we learned nothing new from the publication of the seven paragraphs in the U.K., what their publication confirms is that in the case against Jeppesen,  the U.S. government's invocation of the state secrets privilege is not about protecting our national security; rather it's all about our government side-stepping any legal accountability for the torture and abuse.

You can take action today to let the Obama administration know that its victims of torture — and the American public — deserve to know why prisoners were tortured in America's name.