Binyam Mohamed is a 30-year-old Ethiopian who was granted political asylum in Britain in 1994. In 2002, he was seized by Pakistani authorities and turned over to American intelligence officials in connection with the Bush Administration’s extraordinary renditions program. He was shuttled between CIA-operated facilities in Afghanistan, Pakistan and Morocco. During this period of American-sponsored detention, according to court papers, Binyam Mohamed was “routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution, and death.” He is now reported to be close to death in a prison cell in Guantánamo.
Binyam Mohamed’s case came before two different courts in the course of the last week, and in both cases the United States attempted to block his claims by throwing out their argument of last resort: that state secrecy concerns precluded disclosure of any information about what United States officials had done to Binyam Mohamed.
The first was a panel of High Court judges in London. The judges concluded that the evidence was “necessary and essential” to the prisoner’s defense and that it established that Binyam Mohamed had been tortured, just as he pleaded. They insisted upon and received assurances that a criminal inquiry was opened to ascertain the culprits responsible and attempt to bring them to justice. Nevertheless, the court concluded that the case would have to be closed. Why? Because the United States Government had threatened to interrupt its counter-terrorism cooperation program with Britain if British authorities were, as requested, to turn over information they had received from their American counterparts as to Binyam Mohamed’s mistreatment. Moreover, the court noted with obvious dismay that the United States’s position had not changed following the swearing-in of Barack Obama.
The second case occurred before an equally distinguished panel of appeals judges on the other side of the world, in San Francisco, California. In that case, four victims of the extraordinary renditions program filed a lawsuit against Jeppesen Dataplan, Inc., of San Jose, California, a subsidiary of Boeing and a principal contractor for the CIA’s renditions-to-torture scheme. Employees of Jeppesen were briefed that they would be operating the extraordinary renditions program for their contractor, the CIA. Several of them then quit, correctly viewing the program as a criminal enterprise likely to lead to criminal investigations and prosecutions. But, strangely, the Justice Department argued that Jeppesen’s focal role in the program, which is a matter of public knowledge, openly reported in the press, fully corroborated by Jeppesen employees, and even the constant subject of complaints from Boeing shareholders over the company’s engagement in criminal misconduct, cannot be examined by the court–because the government says so.
Douglas Letter, the Justice Department lawyer appearing for the government in the case, advised the judges that the change of administrations had produced “no change” in the Justice Department’s position. The answer drew open expressions of skepticism from the judges, according to a Los Angeles Times report of the oral argument. Mr. Letter also rather disrespectfully told the judges that they were “playing with fire.” But that, of course, is just what the Justice Department is doing, and indeed it enters the court room on life-support with first degree burns.
Barack Obama came to office with a commitment to end torture backed by promises of transparency and accountability. Yet the two cases relating to Binyam Mohamed cast a shadow over these promises. Obama need not repudiate the notion of state secrecy. It was debated in the course of the Constitutional Convention and has been invoked by executives at least as early as the Jefferson administration. But roughly 90% of all invocations of state secrecy in court proceedings have occurred in the last eight years, a clear sign that something is terribly wrong in the Department of Justice. State secrecy should exist to protect the nation’s military and diplomatic secrets, and those are the parameters which have governed its use since the time the Constitution was adopted. But state secrecy must not be invoked to keep materials secret because they would be politically embarrassing or harmful to individual politicians. And even more clearly, state secrecy must never be invoked to conceal evidence of a crime.
In the case of Binyam Mohamed, that is precisely what has happened. He was criminally mistreated, and there is no longer any doubt that the real basis for invocation of state secrets—as opposed to the one formally and unconvincingly offered in court—is to obstruct pending criminal investigations and to preclude recovery by the victims of damages on account of the wrongdoing they suffered. A criminal case probing Binyam Mohamed’s case is already open. Criminal investigators in Britain, Germany, Italy, and Spain are actively probing other renditions cases in which persons within their jurisdiction were kidnapped, assaulted and tortured. The only reason that no criminal probes are open in the United States is that the Justice Department, which in theory exists to enforce the law, was a full participant in the underlying criminal enterprise, issuing bogus legal opinions designed to cover the perpetrators with immunity. Justice Department lawyers at high levels are likely to be indicted and prosecuted before this matter is wound up.
President Obama has committed to end torture and the extraordinary renditions program, and in light of that the decision to invoke state secrecy in the Binyam Mohamed cases can be understood as implementation of the commitment that Obama has made–and which I support–to grant immunity to intelligence operatives who implemented the Bush Administration’s felonious programs. But the proper price of immunity in these cases is a full and fair accounting for what happened and an appropriate system for compensating those who suffered torture and mistreatment. Canada already approached this issue in a fair and dignified manner in dealing with the claims of Maher Arar, another victim of a Bush Administration rendition to torture. Using state secrecy claims to cloak criminal conduct without any acknowledgment of the misconduct that occurred is a bad, even criminal, idea. It can only bring the government itself into disrepute and will serve to undermine the nation’s security and respect for state secrets.