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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2018

The Bodies in The Forest

= Subscribers only.
Sign in here.
Subscribe here.

The Minds of Others

= Subscribers only.
Sign in here.
Subscribe here.

Modern Despots

= Subscribers only.
Sign in here.
Subscribe here.

Before the Deluge

= Subscribers only.
Sign in here.
Subscribe here.

Notes to Self

= Subscribers only.
Sign in here.
Subscribe here.

Within Reach

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Minds of Others·

= Subscribers only.
Sign in here.
Subscribe here.

Progress is impossible without change,” George Bernard Shaw wrote in 1944, “and those who cannot change their minds cannot change anything.” But progress through persuasion has never seemed harder to achieve. Political segregation has made many Americans inaccessible, even unimaginable, to those on the other side of the partisan divide. On the rare occasions when we do come face-to-face, it is not clear what we could say to change each other’s minds or reach a worthwhile compromise. Psychological research has shown that humans often fail to process facts that conflict with our preexisting worldviews. The stakes are simply too high: our self-worth and identity are entangled with our beliefs — and with those who share them. The weakness of logic as a tool of persuasion, combined with the urgency of the political moment, can be paralyzing.

Yet we know that people do change their minds. We are constantly molded by our environment and our culture, by the events of the world, by the gossip we hear and the books we read. In the essays that follow, seven writers explore the ways that persuasion operates in our lives, from the intimate to the far-reaching. Some consider the ethics and mechanics of persuasion itself — in religion, politics, and foreign policy — and others turn their attention to the channels through which it acts, such as music, protest, and technology. How, they ask, can we persuade others to join our cause or see things the way we do? And when it comes to our own openness to change, how do we decide when to compromise and when to resist?

Illustration (detail) by Lincoln Agnew
Article
Within Reach·

= Subscribers only.
Sign in here.
Subscribe here.

On a balmy day last spring, Connor Chase sat on a red couch in the waiting room of a medical clinic in Columbus, Ohio, and watched the traffic on the street. His bleached-blond hair fell into his eyes as he scrolled through his phone to distract himself. Waiting to see Mimi Rivard, a nurse practitioner, was making Chase nervous: it would be the first time he would tell a medical professional that he was transgender.

By the time he arrived at the Equitas Health clinic, Chase was eighteen, and had long since come to dread doctors and hospitals. As a child, he’d had asthma, migraines, two surgeries for a tumor that had caused deafness in one ear, and gangrene from an infected bug bite. Doctors had always assumed he was a girl. After puberty, Chase said, he avoided looking in the mirror because his chest and hips “didn’t feel like my body.” He liked it when strangers saw him as male, but his voice was high-pitched, so he rarely spoke in public. Then, when Chase was fourteen, he watched a video on YouTube in which a twentysomething trans man described taking testosterone to lower his voice and appear more masculine. Suddenly, Chase had an explanation for how he felt — and what he wanted.

Illustration by Taylor Callery
Article
Before the Deluge·

= Subscribers only.
Sign in here.
Subscribe here.

In the summer of 2016, when Congress installed a financial control board to address Puerto Rico’s crippling debt, I traveled to San Juan, the capital. The island owed some $120 billion, and Wall Street was demanding action. On the news, President Obama announced his appointments to the Junta de Supervisión y Administración Financiera. “The task ahead for Puerto Rico is not an easy one,” he said. “But I am confident Puerto Rico is up to the challenge of stabilizing the fiscal situation, restoring growth, and building a better future for all Puerto Ricans.” Among locals, however, the control board was widely viewed as a transparent effort to satisfy mainland creditors — just the latest tool of colonialist plundering that went back generations.

Photograph from Puerto Rico by Christopher Gregory
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Post
CamperForce·

= Subscribers only.
Sign in here.
Subscribe here.

After losing their savings in the stock market crash of 2008, seniors Barb and Chuck find seasonal employment at Amazon fulfillment centers.

Minimum number of shooting incidents in the United States in the past year in which the shooter was a dog:

2

40,800,000,000 pounds of total adult human biomass is due to excessive fatness.

Trump’s former chief strategist, whom Trump said had “lost his mind,” issued a statement saying that Trump’s son did not commit treason; the US ambassador to the United Nations announced that “no one questions” Trump’s mental stability; and the director of the CIA said that Trump, who requested “killer graphics” in his intelligence briefings, is able to read.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today