Nadler Hosts Hearing to Discuss Curbing the State Secrets Act
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Representative Jerrold Nadler, chairman of the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary committee, held a hearing yesterday to discuss the long-overdue State Secret Protection Act of 2009 (H.R. 984).

Ben Wizner, lawyer for the ACLU, testified at this hearing to argue in favor of the bill, which sets the boundaries for the executive branch’s use of the state secrets privilege.

The state secrets privilege is a rule in which the government can ask the court to remove certain evidence from a case because the evidence involves a “state secret,” confidential information that, if disclosed, could endanger national security. The Bush administration has utilized this rule more than any other administration in history (a record 23 times in four years), notably during an ACLU case, Mohamed et al. v. Jeppesen DataPlan (see below - Editor). In this case, five men were kidnapped and tortured under the CIA’s “extraordinary rendition” program. And in both cases, the government asked the courts to block the cases completely, claiming that the lawsuits were too confidential and that state secrets could be revealed. In effect, the plaintiffs were not even allowed a trial.

But now the tide is finally turning. In April, the Ninth Circuit Court of Appeals overturned a lower court’s ruling on the Jeppesen case, noting, in Mr. Wizner’s words, that “the state secrets privilege should be applied to discrete pieces of evidence instead of entire cases.” And at yesterday’s hearing, most of the members and witnesses agreed with Mr. Nadler’s statement that “the Executive cannot be its own judge.”

Among other things, this bill would make sure that judges do a preliminary review of the supposedly confidential information before coming to a decision. It would provide a consistent procedure for all judges and ensure that the executive branch does not abuse its power.

We fully agree with witness Asa Hutchinson’s assertion that the executive branch should “not be immune to checks and balances,” as well as Hon. Patricia Wald’s statement that this “legislation is long overdue.” The three branches of government are supposed to be co-equal, and Congress is completely justified in creating legislation that balances the Executive’s power.

The state secrets privilege, as it is now, is much too broad; the executive branch cannot have complete immunity. This bill will finally help to rein in executive power, and hopefully provide long-overdue justice for Mohamed and others. As Chairman Nadler admirably put it, “every right must have a remedy.”

The State Secrets Privilege: Selected Case Files

State Secrets Privilege Dangerously Overbroad (2/13/2008)

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Contact: (202) 675-2312 or media@dcaclu.org

Washington, DC – Today the Senate Judiciary Committee convened to hear testimony on an evidentiary rule known as the state secret privilege. Committee member Senator Edward Kennedy (D-MA) introduced legislation last month to narrow the scope of the privilege. During the Bush administration, the state secrets privilege has been increasingly and improperly used as a shield to prevent investigation into executive branch misconduct. The most notable invocation of the privilege was to stall the case of an innocent German citizen, Khaled El-Masri, who was kidnapped, detained and tortured in a secret overseas prison. His suit against the government was stalled after the administration invoked the privilege.

"The Bush administration consistently uses the claim of state secrets to avoid any scrutiny, sacrificing even the impression of accountability," said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington Legislative Office. "The violations this administration has inflicted on the Constitution have been severe and systematic. It’s time for Congress to intervene and to reinforce the system of checks and balances."

ACLU litigators have challenged the Bush administration’s illegal policies of warrantless surveillance, extraordinary rendition and torture in the courts. The administration has frequently invoked the privilege not to protect sensitive evidence from disclosure, but to stymie entire lawsuits alleging executive misconduct – even before any requests for evidence have been made. The ACLU is urging Congress to exercise its constitutional authority and pass legislation to narrow the state secrets privilege, and require courts to exercise independent judicial review over all government state secrets claims.

"The state secrets privilege has been used in recent years as a legal ‘A’ bomb, annihilating cases that may expose the government," continued Fredrickson. "The cost of those cases being hamstrung is a human cost. For the people who have suffered due to government misconduct, Senator Kennedy’s legislation gives hope that their cases may run their due course to a just result. In the interest of justice, Congress should quickly pass this legislation."

For more on the ACLU’s work on NSA spying, go to:
www.aclu.org/nsaspying

For more on the case of Khaled El-Masri and the ACLU's work on rendition, go to:
www.aclu.org/rendition

Editorial: Unraveling Injustice
New York Times, February 5, 2009

The Bush administration’s attacks on the rule of law in the name of fighting terrorism have saddled President Obama and his legal team, starting with Attorney General Eric Holder, with some urgent cleanup work.

Mr. Obama’s early executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba, within a year were a promising start. The administration also faces urgent deadlines in court cases where President Bush’s lawyers were trying to expand executive power and impose a blanket of secrecy to avoid having to defend indefensible decisions.

The cases give Mr. Obama a chance to show how serious he is about repairing Mr. Bush’s legacy of harm.

The first test comes on Monday in San Francisco, where three judges of the United States Court of Appeals for the Ninth Circuit are scheduled to hear arguments in a civil case involving kidnapping and torture. The Bush team was using one of its signature legal tactics — stretching the evidentiary rule known as the state secrets privilege — to avoid having the detainees’ claims ever heard.

The five plaintiffs, victims of Mr. Bush’s extraordinary rendition program, were seized and transported to secret American facilities abroad or to countries known for torturing prisoners — on flights organized by a private contractor, Jeppesen Dataplan.

One plaintiff, an Ethiopian citizen and legal resident of Britain, says he was tortured in Pakistan, Morocco and a C.I.A.-run prison outside Kabul commonly known as the “Dark Prison” before being transferred to Guantánamo, where he remains.

In Morocco, according to his account, he endured routine beatings and perpetual shackling, and security agents cut him all over his body. A hot, stinging liquid was then poured into his open wounds.

Another plaintiff, an Iraqi citizen and legal resident of Britain, was arrested in Gambia while on a business trip. He was flown to Afghanistan and held, chained and shackled in a tiny, pitch-black cell. Later, he was transferred to the American-run Bagram Air Base, where he endured beatings and inadequate sleep, water and clothing. Finally, he was sent to Guantánamo. After four-and-a-half years in detention without any charges being filed, he was released in 2007.

A federal trial judge dismissed these serious allegations without allowing any evidence to be presented. He reflexively bowed to the Bush administration’s claim that doing so would put national secrets at risk.

The Bush administration’s claim is that the “very subject matter” of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.’s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

It is also contrary to Mr. Obama’s stated views. To put them into action, Mr. Holder should immediately ask the court for time to rethink the government’s position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.

Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy. That certainly does not fit principles that the new president has so often articulated.


ACLU Sues Boeing Subsidiary for Participation in CIA Kidnapping and Torture Flights
LINK (5/30/2007)

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CONTACT: media@aclu.org

Group Also Appeals to United States Supreme Court in Khaled El-Masri Lawsuit

NEW YORK - The American Civil Liberties Union today filed a federal lawsuit against Jeppesen Dataplan, Inc., a subsidiary of Boeing Company, on behalf of three victims of the United States government's unlawful "extraordinary rendition" program. The lawsuit charges that Jeppesen knowingly provided direct flight services to the CIA that enabled the clandestine transportation of Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza to secret overseas locations where they were subjected to torture and other forms of cruel, inhuman and degrading treatment.

"American corporations should not be profiting from a CIA rendition program that is unlawful and contrary to core American values," said Anthony D. Romero, Executive Director of the ACLU. "Corporations that choose to participate in such activity can and should be held legally accountable."

The complaint, to be filed today in the U.S. District Court for the Northern District of California, alleges that Jeppesen, through its travel service known as Jeppesen International Trip Planning, has been a main provider of flight and logistical support services for aircraft used by the CIA in the U.S. government's extraordinary rendition program. The CIA rendition flights transfer terror suspects to countries where the U.S. government knows detainees are routinely tortured or otherwise abused in contravention of universally accepted legal standards. The complaint also alleges that Jeppesen has facilitated flights to U.S.-run detention facilities overseas where the U.S. government maintains that the safeguards of its laws do not apply. According to the lawsuit, since December 2001, Jeppesen has provided flight and logistical support to at least 15 aircraft that have made a total of 70 rendition flights.

As described in the complaint, Jeppesen's participation in the rendition flights has included furnishing aircraft crew with flight planning services including itinerary, route, weather, and fuel planning; responsibility for the preparation of pre-departure flight plans with air traffic control authorities; procurement of over-flight and landing permits from foreign governments; facilitation of customs clearance and arrangements for ground transportation, catering, and hotel accommodation for aircraft crew upon landing; and provision of physical security for aircraft and crew.

"Jeppesen's services have been crucial to the functioning of the government's extraordinary rendition program," said Steven Watt, a staff attorney for the ACLU's Human Rights Program. "Without the participation of companies like Jeppesen, the program could not have gotten off the ground."

Specifically, the complaint alleges that Jeppesen provided crucial support services to the CIA for the following flights involving the three plaintiffs in the lawsuit:

* In July 2002, Ethiopian citizen Binyam Mohamed, while in CIA custody, was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.
* In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, where he still remains.
* In May 2002, Italian citizen Abou Elkassim Britel was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents and where he is now incarcerated.
* In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.

According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way." (Jane Mayer, The New Yorker, Oct. 30, 2006.)

The lawsuit was filed under the Alien Tort Statute, which permits aliens to bring claims in the United States for violations of the law of nations or a United States treaty. The statute recognizes international norms accepted among civilized nations that are violated by acts such as enforced disappearance, torture and other inhuman treatment described in the lawsuit.

In furtherance of efforts to hold Jeppesen accountable, the ACLU of Northern California and other advocacy groups will hold a rally at noon today (Pacific Time) outside Jeppesen's offices in San Jose to protest the company's participation in immoral and illegal renditions. For further information, please contact the ACLU of Northern California.

Khaled El-Masri

The ACLU today also petitioned the United States Supreme Court to review the case of Khaled El-Masri, an innocent German citizen who was also a victim of the government's unlawful rendition program. Although the story of El-Masri's mistaken kidnapping and detention at the hands of the CIA is known throughout the world, his lawsuit was dismissed by the U.S. District Court for the Eastern District of Virginia after the government invoked the so-called "state secrets" privilege. That decision was upheld by the U.S. Court of Appeals for the Fourth Circuit in March 2007.

"This administration has invoked the state secrets privilege not to protect national security, but to protect itself from embarrassment and accountability," said ACLU attorney Ben Wizner, who argued El-Masri's case before the Fourth Circuit last November. "Mr. El-Masri's case should be a powerful reminder that when our government abandons the rule of law, innocent victims suffer the consequences."

More information on the Jeppesen lawsuit, including a copy of the complaint, as well as information on El-Masri's case and a copy of the ACLU's brief to the United States Supreme Court, can be found online at www.aclu.org/rendition

In addition to Watt and Wizner, attorneys on the Jeppesen lawsuit are national ACLU Legal Director Steven Shapiro, Alexa Kolbi-Molinas and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman LLP, and Hope Metcalf of the Yale Law School Lowenstein Clinic. Clive Stafford-Smith and Zachary Katznelson also represent Binyam Mohamed.

Khaled El-Masri is represented by Watt, Wizner, Shapiro, Jaffer and Melissa Goodman of the national ACLU, Rebecca Glenberg of the ACLU of Virginia and Victor Glasberg of Victor M. Glasberg & Associates