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Give Torture Victims Their Day in Court

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April 21, 2009

Today, we sent a letter to a federal appeals court in San Francisco in our extraordinary rendition case against Boeing subsidiary, Jeppesen Data Plan, Inc. As you may recall, the government (under both the Bush and Obama administrations) has consistently and inappropriately asserted the “state secrets” privilege, arguing that allowing the case to go forward would be a threat to national security.

Because much of the evidence needed to hear the case has already been revealed to the public, we’ve never seen any merit to that argument. And, in light of the torture memos that the Justice Department released last week in another ACLU case, we think that argument has even less merit.

In our letter, we explain:

The government’s invocation of the state secrets privilege in this case is predicated on an October 18, 2007 declaration by former CIA Director Michael Hayden. General Hayden’s declaration asserts that, “[w]hile the President [Bush] acknowledged the existence of the CIA terrorist detention and interrogation program, the details of the program remain highly classified.”… General Hayden insisted that disclosing specific interrogation techniques “would degrade the effectiveness of the United States’ intelligence gathering activities by, for example, providing terrorists information about interrogation methods that would assist their interrogation resistance programs”…

That rationale no longer exists — because the methods are now public, and because they have been expressly prohibited. As President Obama explained upon declassification of the memos:

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program — and some of the practices — associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time.

It is long past due that the plaintiffs in the case Mohamed et al. v. Jeppesen — five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture — get their day in court. The lawsuit seeks to hold Jeppesen accountable for their knowing participation in the illegal extraordinary rendition program — and specifically the provision of critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to detention and interrogation. To date, no victim of the extraordinary rendition program (in this case or any other) has been granted their day in court, let alone been afforded any kind of redress from the U.S. for their injuries. Some are still detained.

In a statement we issued after the filing today, ACLU attorney Ben Wizner states, “The CIA and its contractors have used false claims of secrecy to avoid any judicial scrutiny for grave human rights violations. The notion that the extraordinary rendition program could be discussed everywhere in the world except in a U.S. courtroom has always been absurd.Now that the CIA’s detention and torture program has been publicly confirmed and officially terminated, there is no basis whatsoever for denying its victims their day in court.”