No Comment — December 16, 2009, 1:38 pm

The State Secrets Charade Enters a New Round

The Holder Justice Department continued its quest to keep the Bush Administration’s program of extraordinary renditions out of the public eye with oral argument before the en banc Ninth Circuit Court of Appeals on Tuesday. So far the district court bowed to the government’s request to toss the suit out of secrecy concerns, while an appeals court panel saw through the government’s threadbare arguments and reversed, ordering the case to go to trial. The government responded by asking for the entire court of appeals to look at the question.

The “state secrets” doctrine is legitimately invoked to protect military and diplomatic secrets essential to the nation’s security. In this case, Justice Department lawyer Douglas Letter argued, “We are not asking you to do anything radical here.” But that was only the first in a series of whoppers he produced as the argument proceeded. This case revolves around Jeppesen DataPlan, Inc., of San Jose, a Boeing subsidiary, which played a focal role in the renditions program. This was disclosed when a number of employees at Jeppesen, correctly convinced that the company was asking them to engage in a criminal enterprise, blew the whistle. Jane Mayer then published a comprehensive exposé of Jeppesen’s role in the program, under which individuals were “snatched” around the world, taken to black sites, and frequently tortured and abused for periods of months or years. So when the government talks about “state secrets” you have to remember that they are no longer “secret.” What it’s really talking about is immunity from suit or accountability for wrongful acts. Listen to Glenn Greenwald’s interview with plaintiff’s counsel Ben Wizner on just this point here.

Thus, what the Justice Department is asking of the Court of Appeals is extremely radical. It proposes to deny the right of individuals to seek compensation for claims that include torture and abuse—claims that they are permitted to bring under U.S. law, and which the government committed to allow them to bring by signing and ratifying the Convention Against Torture. Barack Obama delivered a ringing reaffirmation of those principles in Oslo last week. But Douglas Letter and his team are working feverishly to make President Obama into a liar. You’ll scan their briefs in vain for any recognition of the international commitments the United States has made not to torture, not to “disappear” individuals by holding them outside the course of law, and to hold government actors who engage in such criminal conduct to account for their misdeeds. Letter is working to subvert each of these commitments, and he starts by ignoring the fact that the commitments were ever made.

In effect, the Justice Department is not appearing in the Ninth Circuit to uphold the law. Rather, it is acting as a criminal defense shop for a group of serial offenders, who happen also to have been government actors. Indeed, we have copious evidence that the Justice Department itself was a full participant in the scheme, and any fair prosecution would certainly target senior Justice Department figures. Which is to say, the Justice Department is motivated in this case by an overarching desire to avoid the disclosure of its own criminal conduct.

“Disappearings” have been viewed as a jus cogens crime at least since 1946, when the United States first adopted that view, bringing criminal charges against government officials who developed and implemented a program almost identical to the CIA’s extraordinary renditions program. Some of the authors of that system received the death sentence. Others got sentences in the range of 7 to 10 years imprisonment. That is to say, the crime is an extremely serious one. It is exempted from the application of statutes of limitation, and it is also a crime of universal jurisdiction, meaning that any nation may exercise criminal jurisdiction to prosecute the offenders.

So, yes, what Mr. Letter is attempting to do is radical. He is using the resources of the Justice Department to conceal a crime. That act may well be viewed by prosecutors in the future as an extension of the underlying crime itself.

Although the underlying litigation in California is a civil suit, multiple criminal investigations are now looking into the working of the extraordinary renditions system. Ask Robert Seldon Lady, the CIA station chief in Milan, who was convicted of kidnapping and assault by an Italian court and sentenced to 8 years in prison for his role in an extraordinary renditions operation. It may seem ironic, but the Italian judge followed the recommendations made by U.S. Justice Department prosecutors at the end of World War II as to an appropriate punishment. Or ask the 22 other American civil servants (diplomats, military, CIA agents) also tried and convicted in the Milan court. Incidentally, the defense in that case offered up the same arguments Mr. Letter is making now, and the Italian court knew exactly how to deal with them. Claims of state secrecy could not, it concluded, be used to cover-up a particularly heinous and grave crime like “disappearing,” especially when it was combined with well-documented torture of the victim. That is the way a court in a modern democracy deals with “state secrecy” claims when serious criminality is involved. What the Justice Department demands of the Ninth Circuit is instead the jurisprudence of the twelfth century: it seeks to revive the doctrine of arcana imperii, or “mysteries of the state,” under which the emperor could stop any court proceeding in its tracks by saying that state secrets were involved.

The Italian prosecutors are not finished. They are working hard to extend their case to higher-ups at CIA and in the White House who authorized the kidnapping and torture of a Muslim cleric who was snatched off the streets of Milan. More indictments are likely. And the Italian criminal investigators are, I learned in a recent visit to Italy, cooperating closely with investigating magistrates in Spain, Germany, Poland, and the United Kingdom—all of whom are looking closely into the CIA’s renditions program and building case files for the potential prosecution of U.S. government agents who participated in it.

The Justice Department has a fair crack at getting a reversal out of the Ninth Circuit. Why? It’s a pure political calculus. The Ninth Circuit is heavily populated with Republican appointees who can be counted on to protect those who appointed them. Indeed, in the course of oral argument, only Republican-appointed judges went out of their way to make clear they leaned towards reversal. When the “state secrets” doctrine is used to block a litigant’s fair claims for compensation, that’s bad enough. When it occurs to obscure or cloak a grave crime, this is itself a crime against the republic, and it cries out for attention and exposure.

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