Constitutional Law

Rendition Case to Move Forward (Finally!)

By Nahal Zamani, Human Rights Program

Today, the Ninth Circuit Court of Appeals ruled that our "extraordinary rendition" lawsuit against Boeing subsidiary Jeppesen DataPlan, Inc. can go forward. Filed on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture, Mohamed et al. v. Jeppesen seeks to hold Jeppesen accountable for its knowing participation in the Bush administration’s unlawful rendition program.

Today’s decision reversed a lower court’s dismissal of the lawsuit after the government intervened and improperly asserted the "state secrets" privilege. The government had argued that allowing the case to proceed would be a threat to national security. The ruling today rejects that argument and says that the government must invoke the state secrets privilege with respect to specific evidence, not to dismiss the entire lawsuit from the outset - a position that we’ve argued all along.

The decision states:

The government could not seriously argue, for example, that the Pentagon Papers remained "secret" and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise "officially disclose" the content of the papers.

We couldn’t agree more. Ben Wizner, ACLU counsel in the case,  said in a statement: "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waiting for years just to get a foot in the courthouse door. Now, at long last, they will have their day court. Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ’secrets’ in a court of law."

To date, no victim of torture has ever had his day in court. Bisher Al-Rawi, a plaintiff in this case who was released from Guantánamo in 2007 without ever having been charged with a crime, stated: "I am happy to hear this news. We have made a huge step forward in our quest for justice."

ACLU attorney Steven Watt, who is also counsel in the case, added: "Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."

In its decision, the court also wrote that "the Executive’s national security prerogatives are not the only weighty constitutional values at stake," and quoted the Supreme Court’s decision in Boumediene v. Bush that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."

It doesn’t get much clearer than that.

— Ateqah Khaki & Nahal Zamani

Full post as published by Blog of Rights on April 28, 2009 (boomark / email).