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The State Secret That Everyone Knows

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February 5, 2009

Today, The New York Times ran an editorial about one of the ACLU’s rendition cases — Mohamed et al. v. Jeppesen. On Monday, February 9 the U.S. Court of Appeals for the 9th Circuit in San Francisco is scheduled to hear oral arguments in our case against Boeing subsidiary Jeppesen Dataplan, Inc., for its role in the illegal extraordinary rendition program.

The Bush administration inappropriately invoked the “state secrets” privilege, claiming that hearing the case in court would undermine national security interests (even though much of the evidence needed to try the case is already available to the public). The case was dismissed in February 2008, and our appeal of that decision next week will present the Obama administration with their first opportunity to break away from the Bush legacy of abuse and secrecy.

The editorial, entitled “Unraveling Injustice,” states:

The Bush administration’s claim is that the “very subject matter” of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.’s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

It is also contrary to Mr. Obama’s stated views…Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.

Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The suit 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 for their injuries. Some are still detained.

As the editorial points out, the case is the first test of the Obama administration’s commitment to transparency and his willingness to make a clean break from Bush policies of torture and extraordinary rendition.

Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy. That certainly does not fit principles that the new president has so often articulated.

In the comments section, one reader notes, “Four and a half years in detention, then released without any charges filed. I’d say the man has a case.”

We couldn’t have put it better ourselves.

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