Rendition lawsuit targets aerospace giant Boeing
Should the state secrets doctrine be used to protect government contractors?
Alone, in the middle of the night and nowhere, Khaled El-Masri discovered himself once again to be a free man. He had been left on a hilltop in Albania by his CIA captors, after nearly six months of torture in squalid detention at one of the CIA's black site prisons.
The German citizen eventually sued the CIA and lost after the CIA invoked the state secrets privilege in its own defense. But a new rendition case - this time targeting American aerospace powerhouse Boeing - is now working its way through a rather more sympathetic branch of the American legal system.
Last week, in the relatively liberal Ninth Circuit Court of Appeals, the American Civil Liberties Union filed a scathing indictment of both the Boeing subsidiary that milked the rendition flights for all they were worth, and the Bush administration's neurotic attempts to cloak even private litigants behind the state secrets doctrine.
The state secrets doctrine is an evidentiary privilege invoked by the government in the interests of national security, and El-Masri found himself in the Fourth Circuit Court of Appeals, which encompasses most of the American south and is the most conservative appellate circuit in the United States. Perhaps not surprisingly, the Fourth Circuit, tortured in its own intellectually paranoid way, took a traditionally narrow evidentiary privilege and expanded it beyond all recognition, effectively rendering the El-Masri case non-justiciable. The Supreme Court declined to hear his appeal.
The new case, Muhamed v. Jeppesen, takes aim at a subsidiary of American defense contractor Boeing that appears to have cornered the market on CIA rendition flights, and profited handsomely thereby. The filings even include a declaration by a former Jeppesen employee, who recounts the story of a senior manager reveling in how profitable the rendition racket was at an employee meet-and-greet in San Jose, only to have to explain to the confused new employees that he was talking about the "torture flights".
Recent Ninth Circuit decisions have treated the state secrets doctrine with the narrow interpretation traditionally accorded an evidentiary privilege, which means that Muhamed has a much better chance of getting his day in court than the unfortunate El-Masri ever did. The Ninth Circuit has been especially skeptical of allowing the doctrine to be invoked to cover evidence that is already in the public domain - and much of the evidence in the Muhamed case, from the flight plans registered by Jeppesen with European regulators to the witness accounts and the admissions by collaborating, friendly governments, is already out there. The plaintiffs in Muhamed can testify personally to their own mistreatment, which eliminates the tricky standing issues of the Al-Haramain surveillance case.
One particularly noxious aspect of Muhamed is that the US government is seeking to intervene in a private lawsuit and invoke the evidentiary privilege before Jeppesen has even answered the complaint, and before any evidentiary discovery at all has taken place - essentially strangling a lawsuit in its infancy on behalf of a favored contractor. Typically, a court vets the admissible evidence in camera to remove whatever might be construed to be a legitimate threat to national security, leaving whatever is left for the plaintiff to utilize. Only if the privilege eliminated consideration of a legitimate defense for a defendant would the lawsuit itself be dismissed.
The doctrine has been invoked more by the current administration than any in history, and reconsideration of this common law doctrine - which sits rather awkwardly within a system of limited federal power derived exclusively from the Constitution - is long overdue. The Supreme Court has not considered the state secrets doctrine since 1953 in Reynolds, and although it declined to reconsider the doctrine in El-Masri, the stark jurisdictional split between the Fourth Circuit and the Ninth on the state secrets doctrine means that reconsideration will have to come sooner rather than later.
Reynolds concerned the widows of air force pilots killed in a plane crash who sued the government on a negligence theory, only to have crucial evidence of government guilt withheld under the state secrets doctrine. When those documents were declassified in 2000, government claims that the documents concerned top secret electronics equipment were proven false - the documents in fact concerned mechanical defects that led to engine failure.
One can only hope that current and future victims of US government malfeasance and obfuscation will not have to wait 50 years for vindication.®
Burke Hansen, attorney at large, heads a San Francisco law office
RE: Alan & Steve
So what has El-Masri got to do with Iraq? The original question was whether he could be accepted as giving a 100% honest version of events. For all you know, he could have just been locked in a comfortable room and fed three squares a day. Even if he was or wasn't, Jeppessen Dataplan didn't control the room. And even if the senior execs had an idea of what was going to happen to those they transported, what evidence do you have that they even knew about El-Masri, or what was alledgedly done to him? None.
If you get wrongly convicted of a crime, you sue the government or the police, you don't sue the prison van driver, even if the van driver had a fair idea that prison wasn't going to be too nice. El-Masri tried to sue the CIA, he lost. Now he's just looking for an easier target, and the ACLU amongst others are using him to attack the rendition process. It seems that far too many of these institutions claiming they want to protect our way of life are much happier protecting and aiding those trying to end those lives.
Khalid Sheikh Mohammed and Abu Zubaydah planned and controlled the 9/11 attacks. Mohammed came up with the overall strategy, Zubaydah did the operational bit (fine detail planning and selection of the teams). Or are you a pair of those morons that insist it was all a Pentagon inside job....? Don't tell me, the twin towers are still there, there just hidden by an ultra-secret cloaking technology dreamt up by the neocons so they can use it to attack Iraq (via Afghanistan, which of course is just brimming with oil)....
Iraq? Nothing to do with the article, but then it's standard loon tactic when losing the argument to fall back on Bush-bashing over Iraq. The 3000+ US service people killed were killed by Iraqi militias and AQ in Iraq, not by Bush. Those same militias and AQ "fighters" are also responsible for the massive majority of civilian deaths in Iraq, mainly Muslim-on-Muslim. By your own (ludicrous) logic, and using the same totally disproven material you no-doubt hold up as holy, I can take the totally-debunked and unrelated Lancet figures and claim that those militias and AQ are therefore responsible for 600,000+ civilian deaths in Iraq. Seeing as logical discourse isn't your strength that should get you spinning like tops!
@ Matt Bryant
"Abu Zubaydah coughed up half the AQ network after less than a minute of waterboarding. That's the guy that did the planning for 9/11, which means he killed 3000+ people."
Odd, according to the 9/11 commission report, Khalid Sheikh Mohammed planned the 9/11 attack. So if you're trying to justify Zubaydahs torture because of that supposed action, you have already made a big mistake. No he's not innocent, but how many inhabitants of these "black camps" are ?
And if you are naive enough to believe anything gained from a man who believes he is about to die, then it's no wonder they found it so easy to get through in the first place.
But then you twist the story to suit your own agenda, much like your administration.
Question . Who planned the war in Iraq ?
Because whoever that was deserves a waterboarding session because as of June 2007, over 3500 US citizens had died as a result of that action.
but I suspect that's "different".
@ Keith T
Sorry I missed this first time around.
"These people voted GWB in for his second term after he claimed they shared his moral values."
There is a growing body of evidence that the machines used to tally the votes in the "swing" States were easily tampered with. There is certainly plenty of evidence that Florida, the State which cast the deciding Electoral College votes during Bush's first campaign, was suborned:
1. Bush's campaign manager in Florida was also the Secretary of State, who was legally bound to declare the vote legal or illegal, based on her own investigation of any charges that it may be suspect. She declared it legal.
2. The same Florida Secretary of State was the only person who could have open ballot boxes and resealed them with apparently untampered seals.
3. At least 14 ballot boxes went "missing" for several hours between the polling stations and the vote-counting location.
4. The districts in which ballot boxes "went missing" also tallied an overwhelming majority of votes for Bush.
Do the math. Personally, I am convinced that Bush was never elected the *first* time, and therefor could not legally run for a second term.