"State Secret" Privilege Used to Block Lawsuit on Behalf of Torture Victims

By Maya Harris, ACLU Northern California. Posted February 10, 2008.

Binyam Mohamed, an Ethiopian citizen and legal resident of the United Kingdom, was abducted in 2002 by masked men and flown, blindfolded, from Pakistan to Morocco. For 18 months, Mohamed was regularly beaten into unconsciousness by his interrogators. After a scalpel was used to cut into his body, hot, stinging liquid was poured into his wounds.

Mohamed is just one victim of the CIA's "extraordinary rendition" program, which the Bush administration has defended openly, yet is now arguing it cannot discuss without endangering national security.

The government is calling for the dismissal of an ACLU lawsuit -- brought on behalf of Mohamed and four other rendition victims -- against the San Jose Boeing subsidiary Jeppesen Dataplan Inc. for its alleged participation in the rendition program. The Bush administration has intervened in the case and is invoking the "state secrets" privilege to avoid accountability for its illegal torture policies. A hearing on the government's motion was held Feb. 5 in San Jose and we are awaiting a decision.

The "state secrets" privilege has historically been used to exclude discrete pieces of evidence from lawsuits in order to protect national security, not to throw out entire cases. But the Bush administration has begun to misuse the privilege by routinely waving the "state secrets" flag in an effort to quash lawsuits that might expose its illegal conduct. In addition to this case, the "state secrets" claim has been raised in an effort to throw out other torture and illegal wiretapping suits.

Far from being a "secret," the rendition program is infamous around the world and has been spoken about repeatedly by government officials. (Watch the video explaining the ACLU's case and the practice of rendition.)

During a Sept. 6, 2006, speech, President Bush acknowledged that among the "thousands of terrorists" captured by U.S. and allied forces, a "small number" had been "transferred to an environment where they can be held secretly, questioned by experts." Those individuals were "held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency," he said.

Though the administration contends that the rendition program operates within the law and that detainees are sent to countries that the government claims will not commit torture, the truth is that "extraordinary rendition" involves the kidnapping and transportation of alleged terror suspects to detention and interrogation facilities in countries where the use of torture is common and well-documented.

Jeppesen's involvement -- like the rendition program itself -- is widely known. Jeppesen has been a main provider of flight and logistical support services for aircraft used by the CIA for the clandestine rendition flights. There is ample evidence of Jeppesen's involvement, including traceable flight plans.

In addition, Sean Belcher, a former Jeppesen employee, has given sworn testimony that the flights were discussed openly at Jeppesen. Belcher said that at a meeting on Aug. 11, 2006, Bob Overby, director of Jeppesen International Trip Planning Service at Jeppesen's San Jose office, said, "We do all the extraordinary rendition flights."

Belcher said Overby described these as "torture flights," adding, "let's face it, some of these flights end up this way," or words to that effect. Overby, Belcher said, noted that Jeppesen was well-compensated for its efforts.

To dismiss this lawsuit before Jeppesen has even answered the complaint is both unjust and premature. If there is evidence in the case that must be withheld for national security reasons, the judicial system is equipped to exercise such safeguards within the context of a trial. But there is a wealth of information already in the public domain that should propel this lawsuit forward.

It comes down to this: We live in a country founded on the rule of law and respect for the dignity of human beings. A government that practices disappearance and torture -- and companies that profit from it -- must be held accountable.

The CIA's rendition program is illegal and inhumane. It -- and the lives it has destroyed -- is no secret. Its victims deserve their day in court.

See more stories tagged with: cia, extraordinary rendition, aclu, binyam mohamed, state secrets privilege

Maya Harris is the Executive Director of the American Civil Liberties Union of Northern California. This opinion was originally printed in the Sacramento Bee. Resources related to the lawsuit, including legal documents, multimedia, and background information, are available on the ACLU of Northern California website.

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