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The Ninth Circuit Court of Appeals split down the middle in finding (PDF) that the Justice Department was entitled to halt a civil lawsuit between private parties because of the threat that the suit would expose state secrets. By the margin of a single vote, it reversed the decision of a panel of the same court (PDF) holding that the doctrine could only be applied to individual pieces of evidence, not to entire lawsuits.
The case, Mohamed v. Jeppesen Dataplan, involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, in briefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world—the Court of Appeal in London–had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.
The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion—or even in most of the press accounts about it.
The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.
From New York:
The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.” All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.
The majority opinion is so thoroughly unconvincing that the court makes a pathetic plea to other branches of the government to do what is properly its function: fixing the claims of torture victims and awarding them damages.
By signing the Convention Against Torture, the United States made an unequivocal commitment to the international community to compensate those who are tortured by its agents. The Ninth Circuit has made a liar out of Uncle Sam and a mockery of its duty to uphold the law proscribing torture.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Flor Arely Sánchez had been in bed with a fever and pains throughout her body for three days when a July thunderstorm broke over the mountainside. She got nervous when bolts of light flashed in the sky. Lightning strikes the San Julián region of western El Salvador several times a year, and her neighbors fear storms more than they fear the march of diseases — first dengue, then chikungunya, now Zika. Flor worried about a lot of things, since she was pregnant.
Late in the afternoon, when the pains had somewhat eased, Flor thought she might go to a dammed-up bit of the river near her house to bathe. She is thirty-five and has lived in the same place all her life, where wrinkled hills are planted with corn, beans, and fruit trees. She took a towel and soap and walked out into the rain. Halfway to the river, the pains returned and overcame her. The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion.
Average number of new microwave food products introduced every day In 1987:
Cocaine addicts prefer $500 in cash now to $1,000 worth of cocaine later.
Scientists in the Galápagos Islands credited an endangered giant tortoise named Diego with saving his species by fathering more than 800 offspring.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”