Rendition Is No State Secret

To what extent can we hold private companies accountable for aiding and abetting torture?  Can a government contractor be liable for implementing governmental policy that violates international law?  Yesterday’s decision by the Ninth Circuit Court of Appeals indicates that the answer to the latter question may very well be yes. 

The case, Mohamed et. al. v. Jeppesen Data Plan Inc., involves a subsidiary of Boeing Airlines that provides “trip planning” for the federal government.  “Trip planning” is a harmless way of saying extraordinary rendition, or the process of kidnapping, detaining, and then moving individuals from one country to another for purposes of interrogating those suspects beyond the reach of international law.  Specifically in this case, Jeppesen helped the CIA arrange for international flights that moved suspected terrorists to countries that torture during interrogation.  In exchange Jeppesen was very well compensated.

According to the lawsuit, US intelligence officers seized a British citizen, an Italian citizen, and an Egyptian citizen off the streets and flew them to prisons in Morrocco, Egypt, and Afghanistan.  Those individuals were then forcibly detained, interrogated, and tortured by law enforcement and intelligence officers from the United States, Egypt, and Afghanistan.  While the Jeppesen employees never physically touched the detainees, they did arrange the complex logistics needed to execute an extraordinary rendition, including arranging landing clearances, flight plans, crews, and hotel rooms for flights that jumped from Washington D.C. to Cairo and other locations.  

The individuals, later released from Guantanamo without charge, sued Jeppesen arguing that during their detention they suffered horrifically and that Jeppesen’s actions made that suffering possible.  The Bush Administration, and now the Obama Administration, had defended the lawsuit on the basis of the states secret doctrine, arguing that the lawsuit could not, as a matter of law, move forward because it would imperil national security.  Civil rights advocates had come to expect this type of overreaching argument by the Bush Administration but were very disappointed to see the Obama Administration take up the cause and defend the case not on the merits of rendition, but like the Bush Administration, on the basis that the national security interests prohibited the court from even examining the lawsuit.  

Thankfully the Ninth Circuit disagreed and told the government that if it wishes to invoke the state secrets doctrine, it must do so with regard to specific pieces of evidence, not the basis of the entire lawsuit.  That means that judicial review of the rendition practices is allowed and that the executive does not have the kind of authority it argued for.  Importantly, the Ninth Circuit noted that national security prerogatives must be balanced against an individual’s freedom from arbitrary and unlawful restraint, and that central to our democracy is the understanding that one branch of government does not stand above the others.

That is all fine and good for the Constitutional law wonks among us, but what does the Jeppesen suit really say about attacking and dismantling US torture policy?  For starters, it puts the private sector on alert that they can be held accountable for anything they do to move that policy and program forward.  This is an enormous step forward as we learn more about the extent of government “outsourcing” of torture and military operations to private contractors.  This is a breath of fresh air consideration the blanket of immunity Congress provided the telecom industry for its compliance in the unlawful spying of American citizens.
Second, it takes another good whack at the view of executive power promulgated by the Bush Administration.  No longer can the threat of “national security” be invoked as a blanket blessing of all actions by the executive branch.  For the first time in nearly a decade the executive branch in this country is actually accountable to the other branches of government, most notably the judiciary.  Welcome to 6th grade civics class and the idea of separation of powers.

The effect of the decision is to leave the thorny political issues for the Obama Administration.  Do they appeal the decision to the United States Supreme Court and risk a final ruling on the extent to which they can employ the state secrets doctrine in future trials?  Do they push ahead with the trial and risk exposing government contractors to extensive money damages flowing from these kinds of civil lawsuits?  Those decisions will speak loudly to just how committed this Administration is to undoing the US torture program.  For now though civil rights advocates should rejoice that the judicial branch of this country has finally decided to wake up and do its job.  About time.

photo courtesy of viZZZual.com via Flickr.

5 comments

Past Member
Past Member 8 years ago

I thought Obama was going to STOP King George George's illegal's policies-silly me! I guess we, the citizens of the U.S. have another Bush in office, after all, Obama, is retaining many of Bush/Cheney illegal policies!

SEND
neil  .
Neil A8 years ago

Torture is never right Those who do it are Sadistic cowards,those who order it are even worse. the chance ofr getting the truth is very low! when being tortured most people will say anything to get it to stop. The true miscreants will not tell you what you(think of the iraqui who was "waterboarded" 180 times in 24 hours or so that was plain useless Sadism & of course totally against his human rights. Jail the Bastards who did it for the rest of their lives, carrying out orders is no excuse Also the transport Co.

SEND
neil  .
Neil A8 years ago

Torture is never right Those who do it are Sadistic cowards,those who order it are even worse. the chance ofr getting the truth is very low! when being tortured most people will say anything to get it to stop. The true miscreants will not tell you what you(think of the iraqui who was "waterboarded" 180 times in 24 hours or so that was plain useless Sadism & of course totally against his human rights. Jail the Bastards who did it for the rest of their lives, carrying out orders is no excuse Also the transport Co.

SEND
Elaine K.
Elaine K8 years ago

I think it is deplorable that the government should be involved in kidnapping and torture. Torture usually leads to people lying in order to end their suffering and provides no evidence or accurate information at all in some cases. It reminds me of the Spanish Inquisition. During the Inquisition if someone was arrested they were tortured until they "confessed" or until they died. Those who "confessed" were taken out and burned at the stake for their heresy or witchcraft or whatever they had been accused of. They had no trial no lawyer and no chance to defend themselves and were usually not guilty of any crime at all. Those who have been the innocent victims of the "terrorist" witch hunt deserve to be compensated for their suffering and Obama should take a stand against the injustices of the previous administration.

SEND
JASMIN HORST S.
JASMIN HORST S8 years ago

After an eternity, is there still time left, none of this should have gotten off the ground in the first place, there were many compliant in this awful, and with this awful government administration, the so called free press, should also do some major soul searching. Jasmin Horst

SEND