Obama wins the right to invoke "State Secrets" to protect Bush crimes

[Jefferson23]

Wednesday, Sep 8, 2010 18:09 ET

By Glenn Greenwald (updated below)

In a 6-5 ruling issued this afternoon, the 9th Circuit Court of Appeals handed the Obama administration a major victory in its efforts to shield Bush crimes from judicial review, when the court upheld the Obama DOJ's argument that Bush's rendition program, used to send victims to be tortured, are "state secrets" and its legality thus cannot be adjudicated by courts. The Obama DOJ had appealed to the full 9th Circuit from last year's ruling by a 3-judge panel which rejected the "state secrets" argument and held that it cannot be used as a weapon to shield the Executive Branch from allegations in this case that it broke the law. I've written multiple times about this case, brought by torture/rendition victim Binyam Mohamed and several others against the Boeing subsidiary which, at the behest of the Bush administration, rendered them to be tortured.

Flu permitting, I'll have much more to say about this decision tomorrow, but for the moment, I wanted to highlight the first paragraph from The New York Times article on this ruling, written by Charlie Savage. Just marvel, in particular, at the last sentence (click on image to enlarge):

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.

"The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power." That says it all.

The distorted, radical use of the state secret privilege -- as a broad-based immunity weapon for compelling the dismissal of entire cases alleging Executive lawbreaking, rather than a narrow discovery tool for suppressing the use of specific classified documents -- is exactly what the Bush administration did to such extreme controversy. To see how true that is, just look at this article from Talking Points Memo, from April of last year, in which Zachary Roth consulted with numerous legal experts about my argument that Obama was abusing this weapon in exactly the same way Bush did. His findings were encapsulated in the TPM headline:


in full: http://www.salon.com/news/opinion/glenn_greenwald/2010/09/08/obama/index.html

[sandnsea]

1. This is about an Air America type operation

A Boeing subsidiary was used to do all these renditions for the CIA and/or FBI.

On the one hand, I understand the need for the government to protect secret missions in a time of war.

On the other hand, this entire operation is stomach churning.

We need to end the torture, but end the use of these private companies too.

[chill_wind]

6. Jeppesen DataPlan

Mohamed et al v Jeppesen

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=3731384&mesg_id=3731438

The "states secrets" argument was a joke.

[sandnsea]

8. I don't think so

I don't think the government wants to have the information on how they move people like war spies and operatives put into a public record. I don't think it should be in the public record, except for the fact that people have been tortured.

[rhett o rick]

10. We are the government. I want it made public knowledge how my government abused and tortured innocen

t people. It is my government and I dont want it to hide it's atrocities behind some so called "states secrets" lie.

[sandnsea]

13. Gosh, isn't that what I just said? n/t

[rhett o rick]

32. Well it's not what I heard. You dont want information on what we do with prisoners unless it's

torture. You either open the books or not. Until the CIA can be trusted to act in our benefit, or at least until we have reliable Congressional oversite, I, as part of the government, want the book opened. I want to know what exactly they did. I will risk the compromise to let the CIA know that they cant abuse people in my name in secret and get away with it.

[chill_wind]

14. The details of that Bush era disgrace are amply public.

We have an ACLU video documentary of it and testimony from the victims, that's been available for the whole world to see. (It's somewhere around here on DU- I remember posting it.) As one of the ACLU lawyers involved in the first Obama DOJ ruling in that case observed, the only one being protected from the "state secrets" of that case was a single judge in an empty courtroom.

The ACLU chronology
http://www.aclu.org/national-security/mohamed-et-al-v-jeppesen-dataplan-inc

[sandnsea]

15. Jeppseon testimony & docs?

On all of the renditions? I wasn't aware that is available.

[chill_wind]

16. That is not what I said.

What I said was that the largest essence of that case had been out in the public domain for several years. That was a big part of the controversy. One of the lingering quotes from one of the lead trial lawyers from the first hearing was that the facts were so widely known that apparently the only place in which they couldn't be discussed was inside a federal courtroom in front of a judge.

The "testimony" I specifically refer to are the accounts made public of their experience as far back as 2007.

http://www.youtube.com/watch?v=NdLwTu-L4Wo

A lot more of America needs to watch this.


ACLU Documents-

PRESS RELEASES
Federal Court Permits Landmark ACLU Rendition Case To Go Forward

Court Decision Denies Extraordinary Rendition Victims Their Day in Court

ACLU in Court Today in Lawsuit Against Boeing Subsidiary That Aided CIA “Torture Flights”

ACLU Opposes Governments Attempt to Throw Out Rendition Case Under Guise of State Secrets

Government Improperly Invokes State Secrets Claim in Attempt to Throw Out CIA Rendition Case Against Boeing Subsidiary

Two More Victims of CIAs Rendition Program, Including Former Guantnamo Detainee, Join ACLU Lawsuit Against Boeing Subsidiary

ACLU Sues Jeppesen Dataplan in San Jose for Participation in Seventy CIA Kidnapping and Torture Flights

LEGAL DOCUMENTS
U.S. Court of Appeals Ruling

Order Granting the US’ Motion to Intervene and Granting the US’ Motion to Dismiss (Feb. 13, 2008)

Memo in Opposition to US' Motion to Dismiss (Dec. 14, 2007)

First Amended Complaint (Aug. 1, 2007)

Evidence: Jeppesen Invoice (Jan. 2, 2002)

BACKGROUND
Renditions Map

ACLU Fact Sheet on 'Air CIA'

Statement by Maya Harris, ACLU-NC Executive Director

Biography of Plaintiff Binyam Mohamed

Biography of Plaintiff Ahmed Agiza

Biography of Plaintiff Abou Elkassim Britel

Biography of Plaintiff Bisher al-Rawi

Biography of Plaintiff Mohamed Farag Ahmad Bashmilah

MORE INFO
National ACLU: Rendition

Extraordinary Rendition: El Masri v. Tenet


"The government moved to dismiss the case, arguing that litigation involving the program would harm national security by revealing "state secrets." In opposing the government's motion, we submitted a wealth of detailed information about the rendition program that is already in the public domain, including a sworn statement by a former Jeppesen employee that shows that Jeppesen knew that it was helping with "torture flights."


http://www.aclunc.org/cases/active_cases/mohamed_v._jeppesen_dataplan,_inc.shtml

Back when actual investigative journalism (in Europe) broke the story:

Breaking Jeppesen
Behind the story: How investigative journalists used flight records to uncover the company's link to the CIA
By Diane Solomon
http://www.metroactive.com/metro/06.13.07/jeppesen-0724.html

**************************************************************

This is a case about protecting a corporation. An American corporation profiting with the Bush era practice of outsourcing torture. And of course, CIA kidnappers and torturers.

The Obama admin has long since claimed an end to this, have they not?

[Jefferson23]

21. Thanks for bringing up the history again to this thread, excellent contribution. n/t

:hi:

[chill_wind]

22. Welcome and here is something related:

Not only will we keep them out of prison, but keeping torturers and their bosses around and gainfully employed.. is apparently the new normal.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=103x558923

It needs one more rec, if anybody cares.

[Jefferson23]

23. Yes, I read that, glad you added it here too. You might find this an

interesting addition as I did. Scott Horton writes about Poland's interest in some of our criminals:

The Torturer’s Reward
Sept 8, 2010


Snip*
The desire to conceal the identities of the CIA agents has more to do with the fact that they face prosecution–not in the United States, but in Poland, on whose soil the crimes were committed. Indeed, the Polish National Prosecutor’s office would very much like to know the exact identity and whereabouts of “Albert,” his supervisor “Mike,” and other CIA personnel involved. The CIA black site where the torture incidents occurred is located at Stare Kiejkuty, in northeastern Poland, and information secured by Polish investigators suggests that at least 20 persons were flown on extraordinary rendition flights into Szymansy Airport to be transferred there. While the U.S. Justice Department equivocates on the criminality of the conduct involved (no doubt largely because much of it was explicitly blessed by senior Justice Department officials who would be implicated in any criminal case brought), Polish prosecutors show no hesitation in calling the activities at the prison serious crimes. Polish authorities say they are receiving no cooperation from the United States in their probe.

The Wall Street Journal cites reports in Gazeta Wyborcza that Polish prosecutors are now focusing their case on a theory that former President Aleksander Kwaśniewski, Prime Minister Leszek Miller, and interior ministers Zbigniew Siemiątkowski and Krzysztof Janik knew of and authorized the CIA operations and thus assumed legal responsibility for the crimes. A story to the same effect appeared in the Polish national daily Rzeczpospolita (an English summary is here). Charges of this sort could only be brought in Poland’s State Tribunal, a special court created to handle cases of a political nature, and it would require authorization of a special vote of the Sejm, Poland’s parliament, where the center-left faction that backed Kwaśniewski and Miller could be expected to attempt to block the effort. The prosecution of the CIA operatives involved in the underlying crimes would not require such special approvals, but the Polish prosecutors would have to take custody of those against whom the charges are brought. The cooperation of American officials is essential here and not forthcoming.

remainder: http://www.harpers.org/archive/2010/09/hbc-90007587

[Raster]

26. Done!

:kick:

[sandnsea]

24. Which is lightyears different from court filings

That's the point. You know it always amazes me that people who are supposed to be the biggest defenders of defendants' rights and innocent until proven guilty - always throw that right out the window when it comes to government court cases.

Interviews with suspected terrorists, without any cross-examination or even substantial input of evidence regarding potential guilt, well that's not remotely the same thing as "testimony".

The statement of one person, that has also not been cross-examined, is not sufficient evidence to find guilt in a court of law. That's kind of like that woman in Portland who claimed Al Gore sexually assaulted her and her story stands with no opposition. Good idea?

A court case would potentially necessitate piles more information from Jeppeson and could blow a cover in the exact same way Valerie Plame's cover was blown. Good idea?

The lack of objectivity, lack of reason, lack of the most basic application of legal standards -- by the people who are supposed to uphold them more than any other group of citizens in this country -- well it's really scary to say the least.

[chill_wind]

27. PLENTY of court filings. No day in court for the actual victims

to have their LEGAL TESTIMONY even heard. THAT is the actual point.

I think you didn't see the list of legal documents at the ACLU I linked to in my previous post but if you still need more 'legal document' context, here is something organized with internal links by someone more legally minded than me:

1. The Mohamed, et al v. Jeppesen Dataplan, Inc. civil case was first heard (after being thrown out of district court in the name of national security before it could begin) in oral argument on appeal to a Ninth Circuit three-judge panel, on February 9, 2009.

2. On April 28, 2009, that three-judge appellate panel, made up of Mary M. Schroeder, William C. Canby, Jr. and Michael Daly Hawkins, unanimously overturned federal district Judge Ware (of Oregon, I believe, who had swallowed the Bush administration’s state secret claims whole and thrown the torture victims’ case out of court). The author of that compelling panel opinion was Michael Daly Hawkins.

3. The Obama administration appealed the three-judge panel’s decision, which had reinstated the civil case, to the en banc Ninth Circuit Court of Appeals, and was granted a rehearing. The oral argument in the rehearing took place on December 15, 2009.

4. Today, September 8, 2010, the eleven members of the en banc Ninth Circuit court finally issued their decision – one that their oral argument questions nine months ago certainly seem to have foreshadowed. Six judges decided to reverse the appellate panel decision of Hawkins/Schroeder/Canby, Jr., in an opinion authored by Raymond C. Fisher. They are:



http://emptywheel.firedoglake.com/2010/09/08/9th-circuit-the-government-can-do-anything-to-you-and-hide-it-under-state-secrets/#comments

And noted from that same link.....

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.

http://harpers.org/archive/2009/12/hbc-90006250

"The statement of one person, that has also not been cross-examined, is not sufficient evidence to find guilt in a court of law. That's kind of like that woman in Portland who claimed Al Gore sexually assaulted her and her story stands with no opposition. Good idea?"


What you are trying to argue here in part is whether there are even any merits to the claims they were renditioned and tortured, which is not even part of the higher courts' dispute-- and not the question or argument even the panels of judges and lawyers themselves appear to be asking or making.

The question being argued is not were they tortured? The appeals arguments are about whether the state has a right to immunity from suit at all-- keeping the case from even being brought and the claim for damages even heard or justice served- under the rightful or wrongful use of the States Secrets shield by first, the Bush DOJ and now the Obama DOJ.

"The lack of objectivity, lack of reason, lack of the most basic application of legal standards -- by the people who are supposed to uphold them more than any other group of citizens in this country -- well it's really scary to say the least."

WOW. Five dissenting judges who sought to uphold what they thought was left of the Constitution (when Bush advisers and justices got done wiping their butt with it) would probably agree with you, just sadly, not in the way you think.

[sandnsea]

28. That is one point, a very important point

I'm not arguing anything. I am simply saying that there is validity in state secrets arguments. I'm not even saying I agree that they apply here. I'm just saying that they can't be dismissed without any consideration because you have made a pre-judgment for the accusers. That isn't the way the law works. I'm sure the five dissenting judges didn't say there was "testimony" and then refer to a newspaper article.

I responded to someone who said that corporations were being protected. I don't think that was you but maybe so. I asked for evidence or court documents to back that statement and said that I didn't think it was possible that there was any because I don't think Jeppeson has ever had to actually defend itself in court to the point that documents would be submitted. If there are any actual documents that have been entered into evidence, I would love to see them. SEE them. I hate video and audio, I don't have the time for them.

This particular case has nothing to do with protecting corporations for the sake of protecting corporations. It's a States Secret case and clearly there is merit to the argument or there wouldn't have been six judges who decided for the government.

Now, having said all that, once again, I'm sick of corporations doing the dirty work for the government. I do think it's possible to shut this shit down without handing the country over to the Republicans again.

[Jackpine Radical]

2. Baldness is a blessing.

I can't pull out my hair.

[Jefferson23]

3. Yep, I completely understand. n/t

[katandmoon]

4. RIP, USA. Bush killed it, Obama is burying it.

[chill_wind]

20. And the next pubfascist will erect a holy shrine

and have Bush's face carved on Mount Rushmore.

[depakid]

31. Sweeping it under the rug is more like it- all to be brought back with even more force

with the next Republican administration.

Possibly as early as 2013.

[Peregrine Took]

5. But, but this is why I voted for Mr "Hope and Change." n/t

[NorthCarolina]

29. What, did you expect some sort of Government Transparency or something? eom

[chill_wind]

7. Greenwald Feb 2009

http://www.salon.com/news/opinion/glenn_greenwald/2009/02/09/state_secrets

[Jefferson23]

12. I know, it's so sad for the country. n/t

[Raster]

9. Shhh...don't say anything or make any negative comment. We're in witchhunt mode.

"The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power." That says it all.

[rhett o rick]

11. this is totally fucked up. nm

[chill_wind]

17. Torture is a Crime, not a Secret

NYT Editorial:Torture Is a Crime, Not a Secret
Published: September 8, 2010

(...)

The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan, that the plaintiffs said had arranged the rendition flights that took them to Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed, had his bones broken in Morocco, where security agents also cut his skin with a scalpel and poured a stinging liquid into his wounds.

But the merits of the case were never considered because the Bush administration argued that even discussing the matter in court would violate the state secrets privilege. Barack Obama told voters in 2008 that he opposed the government cult of secrecy, but once he became president, his Justice Department also argued that the case should be dismissed on secrecy grounds.

The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and overturn a decision to let it proceed that was made by a panel of three circuit judges last year. The majority said it reached its decision reluctantly and was not trying to send a signal that secrecy could be used regularly to dismiss lawsuits. But even though it is public knowledge that Jeppesen arranged the torture flights, the majority said any effort by the company to defend itself would pose “an unacceptable risk of disclosure of state secrets.”

That notion was demolished by the five-judge minority that dissented from the ruling, pointing out that the plaintiffs were never even given a chance to make their case in court using nonsecret evidence, including a sworn statement by a former Jeppesen employee about the company’s role in what he called “the torture flights.” The case should have been sent back to the district court to examine which evidence was truly secret; now it will have to be appealed to a Supreme Court that is unlikely to be sympathetic to the plaintiffs.

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.”

(...)

[OnyxCollie]

18. But, but, HE'S NOT LIKE BUSH!!!1!

Haterz! Trollz! You want Palin to win!

(Heads explode.)

K&R

[Raster]

25. Simple minds can only understand simple concepts.

It's all or nothing, in or out, black or white. There are no colors, no shades of gray, no degrees of variance. It's us against them. Period. Any further examination requires rudimentary critical thinking skills. There are no critical thinking skills in mob mentality.

[Demeter]

19. Well, 7 More War Criminals (Accessories After the Fact)

6 judges on the 9th and You-Know-Who.

[KoKo]

30. Disappointing...eom

[Hawkowl]

33. This alone

This all out effort to shield the Bush regime and thereby perpetuate a government culture of torture, illegal rendition and cover up, is enough to guarantee I won't vote for this government again.

[depakid]

34. The failure to re-establish the rule of law to pre-Bush norms runs MUCH broader

and deeper than this matter- which in and of itself, is bad enough.