Civil Liberties Torture

9th Circuit Tells DOJ “Secrets” Claim Not Good Enough

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On Monday, the California-located U.S. Ninth Circuit Court of Appeals
, rejected the Executive Branch’s claim that the “very subject matter” of a case alleging torture is a state secret. The 9th Circuit Court reversed the district court’s dismissal of the lawsuit, and said that the case, Mohamed v. Jeppesen Dataplan, can proceed.

The suit—brought on behalf of the plaintiffs by the ACLU— alleges that American defense contractor Jeppesen—a subsidiary of Boeing—-knowingly flew five people to various foreign countries where they were tortured as part of the CIA’s “extraordinary rendition” program.

The details of the Jeppesen allegations are instructive to read:

In two of the five cases the men were handed over to countries known to torture—namely Egypt and Jordan, where according to the suit, they were indeed tortured severely—with electricity, beatings, and other forms of physical and psychological torment.

In two more cases, the defendants were allegedly tortured–physically and psychologically (the suit has the details)— by Americans at one of the CIA’s “black sites” in Kabul, Afghanistan—then eventually released, with no terrorism charges ever leveled against them.

In the fifth case, the defendant was captured and flown to Morocco, allegedly tortured there, then flown to the US black site in Kabul, then eventually transferred to Bagram Air
Base, where he was where he was “subjected to humiliation, degradation,
and physical and psychological torture by U.S. officials.” Finally he was transferred to Git’mo. Now he is back in London, where he is a permanent UK resident, while he waits for an appeal.

So, given the fact that three of the men at least
, are walking around free, two of them with no charges whatsoever, the third released on appeal, we can guess that these were not “high value” prisoners whom we must subject to whatever torments we deem necessary to prevent the death of thousands of Americans and head off some ticking-time-bomb of apocalypse.

Following the 9th Circuit decision, the lower trial court must now evaluate which evidence in the case is actually subject to the state secrets privilege and whether there is sufficient non-privileged evidence available to fully litigate the case.

Since the knowledge of the extraordinary rendition program has long been out in the open, I’m betting that the secrets being protected are the identities of CIA agents. Fine. So find a way around that.

The truth is, if this case goes forward, it will open the door for many more like it. Jeppesen allegedly had 15 aircraft making these secret flights.

I’m in the middle of reading Jane Mayer’s The Dark Side, a brilliantly and meticulously reported work that concerns itself with just these issues.

In fact, a former Jeppesen employee, Sean Belcher, informed Mayer that, at an internal corporate meeting, a senior Jeppesen official 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.” Belcher’s sworn statement is now part of the lawsuit.

Based on the book, and on the material in the lawsuit,
we can be sure that these five are the tip of the torture and extraordinary rendition iceberg.

Now the ice is melting. The Obama administration must let the floodgates open.


PS: Before the February oral argument in the case, the Constitution Project called on Attorney General Holder to reverse the litigation position previously taken by the Bush administration in this case, and to consent to have the trial judge review the evidence at issue.

(Here’s the letter that the Constitution Project sent Holder.)


  • As everyone should know, California’s Ninth Circuit Court of Appeals is a branch of the ACLU. Their rulings usually get reversed.

  • Unexpected Consequences

    As with most things that the ACLU touches it is likely to have unexpected consequences.

    With fewer interrogation options left to the CIA, it is just plain human nature that less suspects will be taken prisoner, and more suspected terrorists and their families if in proximity will just be killed.

    Because these interrogation tools are being taken away from the CIA, I expect that they will instead expand the use of new tools, such as Killer Drones which allow operators to eliminate an entire group of suspected terrorists while sipping a Starbucks Cappuccino.

    Since any useful interrogation information is becoming harder and harder to obtain, it will make much more sense to ruthlessly kill ALL groups of suspected terrorists as you find them.

    Another real advantage of using these un-manned drones (besides the Cappuccino) it that they can be ordered to kill just like any other Nintendo game avatar, but will never be called to testify before a hostile congress.

  • Celeste, in a cyberspace show of civil-disobedience towards Woody, I throw my shoe-as-missile-of-discontent straight at him. The shoe is the weapon of the common man!!!
    Vaya con Dios Chief Judge Alex Kozinski!

  • Pokey, I am really all for Killer Drones, which would allow its operators to eliminate entire groups of suspected terrorists while sipping a Starbucks Cappuccino as you say, only I would prefer to be gulping down ice cream and pumpkin pie while playing with the swithes. This is no joke. Its just the racism that Woody exibits that I object too. But here we both agree on how to deal with terrorists.

  • Did it say whether it was Clinton’s extraordinary rendition or Bush’s that ensnared these guys.

    Bush didn’t start that program.

    BTW, the secrets that are alleged probably include the identities of agents (which any Bush hater has to agree should be kept secret – re: Valerie Plame), and information that would prove embarrassing to allies who helped us out.

    By all means, let’s continue the left wing work to keep America from defending itself.

  • Randy, you want an example? Get it yourself. I’m not wasting time with your wanting proof of something and then proof for the source and then proof of that source’s source back to the beginnings of recorded history, and even that wouldn’t be enough for you when you don’t want to admit something that is common knowledge and can be easily checked.

  • Carlos, you’re insane. This post and the comments had nothing to do with race, yet you’ve somehow taken offense to nothing that was said. You better keep on your shoes rather than throw them. You may need them, as it’s a long walk back across the border.

  • Get it yourself. I’m not wasting time with your wanting proof of something and then proof for the source and then proof of that source’s source back to the beginnings of recorded history, and even that wouldn’t be enough for you when you don’t want to admit something that is common knowledge and can be easily checked

    You just make shit up.

  • Randy, prove to me that you’re a person, and I might discuss this with you. Of course, like you, I reserve the right to determine if you meet MY definition of person.

    I didn’t make anything up. The Ninth Circuit Court of Appeals is often overruled. Since you’re incapable of looking up one example, here’s some help. The article is old, but it is still accurate and the situation has only gotten worse over more years.

    Ninth Circuit Court Often Overruled

    When the Pledge of Allegiance was deemed unconstitutional by a federal court of appeals, few legal observers were surprised to learn that it came from the Ninth Circuit.

    Considered the nation’s most liberal and oft-reversed federal court, its decisions have been struck down by the Supreme Court five times this year alone. The federal appeals court’s rulings have so angered some that a number of congressmen once tried to abolish it.

  • So seven years ago they were struck down five times by May.

    That, by the way, is for the entire ninth circuit, not just the nnth circuit court of appeals.

    Five times out of how many decisions? What specifically were the decisons struck down? How does that compare to the other ten circuits?

    These are reasonable questions, that go beyond glittering generalities.

  • Obviously, you didn’t read the article and didn’t do any further research. You asked for an example. Five should have done it.

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