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ABC just reported that at court hearing this morning, the Obama administration stated that it will adopt the Bush administration’s arguments on an extraordinary rendition case:

A source inside [the courtroom] tells ABC News that a representative of the Justice Department stood up to say that its position hasn’t changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

Information about this case is below the fold from diary I wrote yesterday.

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On Monday, the Obama administration may answer some lingering questions about the parameters of our torture policies now that Bush is history. Oral argument is scheduled to address whether Boeing subsidiary Jeppesen Dataplan can face trial on civil liability for torture based on its role in extraordinary rendition flights (pdf file).  Five men claiming that they were tortured by the US alleged that Jeppesen transported the rendered prisoners to countries known for torture or to CIA black site prisons. A federal district court dismissed the lawsuit when Bush invoked the state secrets privilege. The issue is now on appeal before the 9th Circuit. This is not an either/or issue: The courts have authority to protect our national security, promote governmental transparency and redress harms to torture victims.

The complaint alleges that the US rendered Ethiopian citizen Binyam Mohamed first to a Moroccan prison and then to a secret CIA prison in Afghanistan. He was tortured at both prisons.  Mohamed is now at Guantánamo. Additional plaintiffs include Italian citizen Abou Elkassim Britel, who was rendered from Pakistan to Moroccan agents who tortured him and Egyptian citizen Ahmed Agiza was rendered from Sweden to Egypt, where he was tortured.

Please listen to families telling what happened to these men:

This case raises a few questions:

(1)  Do torture victims have a right to a trial to determine the civil liability of a company that knew it was aiding or abetting torture?

A former Jeppesen employee quit after learning first hand that he worked in the outsourcing torture business. During an internal corporate meeting, Bob Overby, a managing director, stated:

"We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way."

The Jeppsen employee was informed that two of its trip planners worked on the rendition flights, or, as another employee stated, "We do the spook flights."

(2)  Should a company be allowed to profit as a business for torture?

As Jane Mayer reported in 2006, Jeppesen is a publicly traded company that managed the "logistical and navigational details for these trips, including flight plans, clearance to fly over other countries, hotel reservations, and ground-crew arrangements."  Jeppesen specializes in aeronautical charting or Jepp charts.

For Jeppesen, torture rendition flights were a business, indeed, a very profitable business. As Overby stated:

"It certainly pays well. They"—the C.I.A.—"spare no expense. They have absolutely no worry about costs. What they have to get done, they get done."

There are financial benefits and power associated with the status of publicly traded company. Should a company complicit in torture be entitled to those benefits but none of the liabilities flowing from inhumane, immoral, and unethical actions?

(3)  Should our government invoke state secrets privilege to dismiss lawsuits even when much of the information has been publicly disclosed?

The Bush team argued that  state secrets privilege was appropriate based upon the "purported harm to foreign relations that would flow if the participation of foreign governments in CIA intelligence activities" (pdf file) was confirmed by civil lawsuits. However, the ACLU brief cites case law holding that published information does not constitute state secrets.

There has been a vast reservoir of public disclosures:

Simply put, the core allegations of this lawsuit - that the CIA seizes foreign nationals and transports them to foreign or U.S.-run detention facilities; that other nations cooperate in these activities; that corporations, including Jeppesen, play an integral role in the CI A' s rendition program- are matters of public knowledge, not "state secrets."

Other nations have already publicly disclosed in their own proceedings "precisely the relationships and information" that Bush characterized as state secrets:

At the time this suit was erroneously dismissed, several nations - including the United Kingdom, Egypt, Sweden, Yemen, and Jordan - had already provided documentation confirming their roles in the capture and/or detention of the plaintiffs in this case.

Just last week, we learned about the British-US relationship regarding Mohamed’s torture. The British government claimed that its court was wrong in its belief that Bush threatened to terminate intelligence sharing if secret CIA documents were publicly revealed. The media then published letters by the US government documenting the cooperation between the US and British governments and Bush’s threats. This same British court also stated that the CIA documents gave
"credence" to Mohamed’s torture allegations.

Moreover, the Swedish government has already agreed to pay $450,000 in damages to Agiza for its role in the CIA’s rendition of him to Egypt for torture, which was confirmed by Sweden and the UN.

President Obama wants to reestablish our moral authority in the world:  A good place to start is following Sweden’s lead of accountability and restitution for the victims.

UPDATE 1 thanks to smileysam and other commenters as my mouse will not copy and paste from ABC site:

The ACLU says the Obama administration reneged on civil liberties, offers "more of the same."

 

 Anthony D. Romero, Executive Director of the ACLU said of the decision: "Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs said, "We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture.

UPDATE2: thanks to srkp23 in comments:

   Miller said that Attorney General Eric Holder has started a review of all state secret privilege matters. "The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations. It is vital that we protect information that, if released, could jeopardize national security."

   "The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.

UPDATE 3: ACLU press release

Justice Department Stands Behind Bush Secrecy In Extraordinary Rendition Case (2/9/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The Justice Department today repeated Bush administration claims of "state secrets" in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. 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 Bush administration intervened in the case, inappropriately asserting the "state secrets" privilege and claiming the case would undermine national security. Oral arguments were presented today in the American Civil Liberties Union's appeal of the dismissal, and the Obama administration opted not to change the government position in the case, instead reasserting that the entire subject matter of the case is a state secret.

UPDATE 4: Bloomberg news is reporting the same:

A Boeing Co. unit was joined by the Obama administration in opposing reinstatement of a lawsuit claiming Jeppesen Dataplan falsified flight plans to disguise the CIA’s delivery of suspected terrorists to secret prisons where they were tortured.

...The administration of President Barack Obama hasn’t changed position on that issue, Douglas Letter, a Department of Justice attorney, told the judges.

UPDATE 5: San Jose Mercury News via AP reporting same story, adding that Obama administration wants the lawsuit dismissed:

Obama lawyers maintain Bush position in suit

An Obama administration lawyer is urging a federal appeals court panel to throw out a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA secretly fly terrorism suspects overseas to be tortured.

The Justice Department said Monday that national security would be threatened if the lawsuit moved forward.

In arguing for the suit to be tossed, the Obama White House maintained the same position as the Bush administration on the case—disappointing the American Civil Liberties Union and others, who had called on the Obama administration to change its position.

UPDATE 6: Glenn Greenwald talked to ACLU lawyer about hearing today: Obama's DOJ reviewed case, vetted bush's position, and then adopted Bush's position on state secrets privilege in this case

I just spoke with Wizner about today's court hearing.  It's really remarkable what happened.  One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case.  Letter emphatically said it did not.  Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.

UPDATE 7: Glenn has provided more information about why the Obama DOJ is invoking state secret privilege: To protect the rendition and interrogation practices from Bush that Obama does not support.

Finally, Wizner noted one last fact that is rather remarkable.  The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court.  In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist.  How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?

UPDATE 8: Glenn has another update from the NY Times:

The New York Times' article by John Schwartz on today's hearing contains the quotes from the exchange which I described in the Update above:

   [A] lawyer for the government, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the panel of the United States Court of Appeals for the Ninth Circuit.

   "Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

   "No, your honor," Mr. Letter replied.

   "The change in administration has no bearing?" she asked.

   "No, your honor," he said once more. The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said.

Originally posted to Patriot Daily News Clearinghouse on Mon Feb 09, 2009 at 12:26 PM PST.

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