Blackstone, Commentaries on the Law of England (1765-1769)
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For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”