Federal Court to Obama DOJ: 'State Secrets' Excuse is Bogus, Torture Victims' Lawsuit Can Proceed

Posted by Liliana Segura, AlterNet at 1:39 PM on April 28, 2009.

In February, lawyers for the Obama administration dismayed many of his supporters by attempting to block a lawsuit on behalf of five victims of  extraordinary rendition on the same bogus "state secrets" grounds so often invoked by his predecessor.
"This case cannot be litigated," Department of Justice lawyer Douglas Letter argued at the time. "The judges shouldn't play with fire in this national security situation."
This claim, a throwback to the shameless secrecy and fearmongering of the Bush era, was devastating to those who had hoped that the Obama presidency would mark a shift towards seeking justice for the countless men wrongfully swept up in the early days of the so-called "war on terror" -- and accountability for those who sanctioned their torture.
As I explained at the time:

The case was Mohamed et al. v. Jeppesen Dataplan, a lawsuit originally brought in 2007 by the ACLU on behalf of five victims of extraordinary rendition, the notorious CIA program in which terror suspects are kidnapped, thrown on a plane and flown to another country to be tortured and interrogated.

Jeppesen Dataplan, a subsidiary of Boeing, is said to have provided the logistical support for the rendition of all five plaintiffs, among them, Binyam Mohamed, an Ethiopian national who, in July 2002, was taken from Pakistan to Morocco, where for 18 months he was imprisoned and brutally tortured, including being cut with razorblades on his testicles. Mohamed was later sent to Guantanamo Bay, where he supposedly awaits imminent plans for his release. He has never stood trial.

Two weeks later -- and seven years after his initial capture -- Binyam Mohamed was finally released.

"The very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers," he said in a statement released upon his arrival to Britain.

Likewise, the same administration many hoped would finally allow torture victims to have their day in court instead has followed the Bush administration's footsteps by seeking to block their lawsuits.
Today, however, the U.S. Court of Appeals for the Ninth Circuit came down on the side of Mohamed and his fellow plaintiffs, ruling that the ACLU case against Jeppesen Dataplan can move forward.
"The Executive's national security prerogatives are not the only weighty constitutional values at stake," the court concluded, quoting the U.S. Supreme Court's landmark opinion in Boumediene v. Bush that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."

According to the court's decision, the government can only use the state secrets privilege with respect to specific evidence, not to throw out the lawsuit itself.
In a statement released today by the ACLU, staff attorney Ben Wizner, who argued the case for the plaintiffs, said, "This historic decision marks the beginning, not the end, of this litigation. Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."
"I am happy to hear this news," said Bisher Al-Rawi, a plaintiff in this case who was released from Guantánamo last year without ever having been charged with a crime. "We have made a huge step forward in our quest for justice."

The ACLU has more.

Tagged as: torture, extraordinary rendition, boeing, aclu, state secrets, bisher al-rawi, jeppesen dataplan, binyam mohamed, guantánamo, ben wizner, douglas letter

Liliana Segura is a staff writer and editor of AlterNet's Rights and Liberties and War on Iraq Special Coverage.