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On Jeppesen, Part 1: Our Very Public "Secrets"

Larry Siems,
The Torture Report
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October 8, 2010

Last month, in a bitterly disappointing 6-5 decision, the 9th Circuit Court of Appeals pulled the plug on the lawsuit brought by Binyam Mohamed and four others against Boeing subsidiary Jeppesen Dataplan for assisting the CIA in delivering them into the hands of foreign governments to be tortured.

The government argued, and the court narrowly agreed, that trying the case risked revealing state secrets. But so much of what Binyam Mohamed and his coplaintiffs endured is no longer a secret — a point vividly illustrated by this appendix to Judge Michael Daly Hawkin’s forceful dissenting opinion. Judge Hawkin’s chart lays out 112 pieces of publicly available information and evidence establishing that Jeppesen both operated the rendition flights and knew or should have known the purpose of the flights was to render the men to be tortured. The entries range from flight records and invoices to press clippings to official reports by the European Parliament and the government of Sweden; together, they are reminder of how much we — and the rest of the world — know about our government’s supposedly secret extraordinary rendition program.

In the opinion to which he attached this damning list, Judge Hawkins wrote,

Plaintiffs have alleged facts… that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

The court’s majority acknowledged that the nonsecret, publicly-available evidence was probably sufficient for Mohamed and his coplaintiffs to press at least some of their claims without the need for materials in the hands of the government. But Judge Raymond Fisher’s majority opinion held that “even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because — privileged information being inseparable from nonprivileged information that will be necessary to the claims or defenses — litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”

So what are these “state secrets”? In documents submitted to the court, the government claimed the state secrets privilege — a privilege the U.S. Supreme Court has held covers “matters which, in the interest of national security, should not be divulged” — with respect to four categories of evidence:

[1] information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities; [2] information about whether any foreign government cooperated with the CIA in clandestine intelligence activities; [3] information about the scope or operation of the CIA terrorist detention and interrogation program; [or 4] any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods.

The majority insisted that just revealing which of these categories might be implicated by the classified government materials it examined could risk revealing state secrets. However, Fisher wrote, “We can say…that the secrets fall within one or more of the four categories identified by the government and that we have independently and critically confirmed that their disclosure could be expected to cause significant harm to national security.”

In other words, granting Binyam Mohamed and his four codefendants their day in court might result in official confirmation, or new revelations, of the CIA’s relationship with Jeppesen; of the cooperation and complicity of foreign governments in rendition and torture; about the Rendition, Detention, and Interrogation program in general; and about the CIA’s practices and methods — all matters which, our government insists and the narrowest of majorities of the 9th Circuit Court of Appeals agrees, “in the interests of national security should not be divulged.”

But when you look at the quantity of information about the treatment of Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi that is publicly available — which is vividly illustrated by Judge Hawkins’ appendix and which is more than sufficient to reconstruct the basic outlines of their ordeals (as we have done, in Binyam Mohamed’s case, in Chapter 4 of this report) — it seems to me the question becomes whether there isn’t a point at which, in the interests of national security, the government should be forced either to officially acknowledge or challenge the growing body of public evidence.

Do we really strengthen our security and standing as a nation by letting the evidence mount that the United States repeatedly, deliberately, and egregiously violated U.S. and international laws against torture and forced disappearance, and then compounding the obvious lawlessness by failing, as we are required by the Convention Against Torture , to prosecute those who carried out these policies and to make restitution to its victims?