The long road to the proverbial "day in court" just got longer for five men who claim they were 'disappeared' and tortured by the U.S. Central Intelligence Agency.
The men, who say they were victims of the 'extraordinary rendition' program conducted during the administration of President George W. Bush, have been trying since 2007 to get their cases heard on the merits.
But it is now far from clear that the merits of these cases will heard any time soon - if ever. The reason is that the Department of Justice - first through Bush Administration lawyers, now through Obama Administration lawyers -- has invoked the so-called 'state secrets' privilege, claiming that a public trial would endanger U.S. national security.
The latest development in the case came last week, when the Ninth Circuit Court of Appeals set aside an earlier ruling by three of its own judges and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. The request to rehear the case, now scheduled for December 15, came from the Obama Administration.
That decision put on hold the earlier findings of the three-judge panel, which had reinstated the Mohamed suit in April. That 3-0 ruling rejected arguments by the Bush and Obama administrations that the case concerned secrets too sensitive to disclose in court.
In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller - involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence-sharing among allies if the abuse was publicly disclosed.
The case is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident who, while in CIA custody in 2002, 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 Guanta'namo Bay, Cuba, from which he was released without charge in February.
The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to "render" terror suspects to countries where they were disappeared and tortured.
A Council of Europe report in 2007 described Jeppesen as the CIA's aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights." And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of 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."
The three-judge appeals court panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. The judges said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."
Ben Wizner, an attorney with the American Civil Liberties Union (ACLU), which represents the plaintiffs, told us, "Much is at stake in this case. If the CIA's overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
He said he was "disappointed that the Obama administration continues to stand in the way of torture victims having their day in court."
He added, "This case is not about secrecy. It's about immunity from accountability."
"We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a 'state secret.' In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law," Wizner said.
The fear is that the 11-judge appeals court panel may agree with the DOJ that disclosure in a trial in a public courtroom would compromise national security. Then, the five petitioners would probably ask the U.S. Supreme Court to review the case - an action the government too would probably take if it lost in the appeals court. If the high court declined to hear the case, that would be the end of the legal road for Mohamed and his co-plaintiffs.
Wizner told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."