The Government Can Kidnap and Torture You and Then Hide It Under State Secrets
By: emptywheel
September 8, 2010
This – a decision in the Jeppesen Dataplan suit upholding the government’s invocation of state secrets – is really bad news.
This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.So basically, the government can kidnap you and send you to be tortured – as they did with Binyam Mohamed – yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.
Update: The ACLU’s Ben Wizner on the decision:
This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.
- Binyam Ahmed Mohamed (Arabic: بنيام Ù…Øمد) (also described as Benjamin Mohammed, Benyam (Ahmed) Mohammed and Benyam Mohammed al-Habashi) (born 24 July 1978) is an Ethiopian national, who was detained in Guantanamo Bay prison between 2004 and 2009. He was captured and transported under the US extraordinary rendition program. Mohamed’s military representative reported that he had admitted while he was detained that he had trained in the Al-Qaeda terrorist training camp Al Farouq, but has since claimed that the evidence against him was obtained using torture. After charges against him were dropped, he was eventually released and arrived in the United Kingdom on 23 February 2009. In February 2010, the UK Court of Appeal ruled that he had been subjected to "cruel, inhuman and degrading treatment by the United States authorities".
I think the judges are mindful of precedent, and so even in a case like this, affirming the principle that national security is a foremost need. Thus, "After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court." In this case, the result adds to the shameful fact that "not a single victim of the Bush administration’s torture program has had his day in court." Some of the victims were bad guys. Some were not. And we’ll never know the difference. And in either case, their treatment was against the treaties and principles of the American system.
It’s been said in many different ways – in these cases, we’re denying the basic premise that no one is above the rule of law. We’ll regret doing that somewhere down the road. This road does not need a fork in it, and we’re creating that fork in response to the manipulations of some immoral leaders who need to be exposed…
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