Feeds

Torture case against Boeing subsidiary resuscitated

Court rejects Bush, Obama state secrets gambit

Mobile application security vulnerability report

In a ruling sure to fan the flames of controversy over Bush-era torture policies, the 9th Circuit Court of Appeals this week strongly repudiated the Bush and Obama administrations’ arguments of a broad reading of the so-called "state secrets" doctrine, which the Bush administration in particular had used to smother potentially embarrassing litigation in its crib.

Although the ruling seems solidly grounded in what little precedent exists on the subject, the rarity of the doctrine’s invocation prior to the Bush administration almost assures an appeal to the Supreme Court.

The case, Mohamed et al., v. Jeppesen, was brought by five detainees of Gitmo, various CIA “black sites,” or the prisons of third countries rather less scrupulous in the utilization of coercive interrogation techniques, and it accuses the Boeing subsidiary Jeppesen Dataplan of conspiring with the CIA in their rendition and torture. The gruesome story of the named detainees and their treatment at the hands of the CIA and its fellow intelligence services had received international publicity prior to the filing of the complaint, which had been drafted carefully to avoid the invocation of the state secrets privilege: the plaintiffs named only the contractor Jeppesen, not the CIA as defendant.

No matter. The US government, under Bush, intervened as an interested party and immediately asserted the state secrets privilege as a blanket defense to the action and moved to dismiss the entire case on the grounds that the subject of the case itself was a matter of national security, publicity be damned. The Northern District of California agreed, and the plaintiffs appealed.

The state secrets doctrine in America has its origins in the notorious trial of Aaron Burr for treason and is an evidentiary privilege not unlike attorney-client privilege. Prior to the Bush administration, the doctrine appeared most notably in the Burr trial, in a suit filed by a Civil War-era spy, and, more ignominiously, a suit filed 1952 by widows of American airmen who died due to the gross negligence of the Air Force and its contractors, United States v. Reynolds.

The Bush administration enthusiastically seized on the rather unique facts of the Civil War case, Totten v. United States, and proceeded to bludgeon a rather overly pliant justice system with it. No longer. The Court expressed shock a couple months back when it offered the Obama administration the chance to revisit the DOJ’s approach to the case, and the Obama team, in something of a sop to the intelligence community, actually tried to expand the doctrine. That approach has now been roundly rejected, and the more traditional, limited concept of the state secrets doctrine as an evidentiary privilege, rather than a bar to suit, was reaffirmed.

The grisly facts of the case speak for themselves: genital electrocution and mutilation, broken bones, psychosis-inducing sleep deprivation, and the harrowing screams of women and children blasted into solitary and seemingly unending darkness. The Court, citing ample evidence, made a point of rebuking for the record the government’s bureaucratic instinct of burying information that is shameful, rather than truly threatening to national security. Is anyone really surprised?

Perhaps the executives of Jeppesen, who once bragged to a group of astonished new employees that they "did all the torture flights," will exhibit rather less pride of ownership of their role in this sorry affair, as the legal tide turns against them. Regardless, this decision by the 9th Circuit is a direct challenge to the apologists of overarching executive authority, and a triumph of reason over obfuscation. ®

Bridging the IT gap between rising business demands and ageing tools

More from The Register

next story
Adam Afriyie MP: Smart meters are NOT so smart
Mega-costly gas 'n' 'leccy totting-up tech not worth it - Tory MP
'Blow it up': Plods pop round for chat with Commonwealth Games tweeter
You'd better not be talking about the council's housing plans
Arrr: Freetard-bothering Digital Economy Act tied up, thrown in the hold
Ministry of Fun confirms: Yes, we're busy doing nothing
ONE EMAIL costs mining company $300 MEEELION
Environmental activist walks free after hoax sent share price over a cliff
Help yourself to anyone's photos FOR FREE, suggests UK.gov
Copyright law reforms will keep m'learned friends busy
Apple smacked with privacy sueball over Location Services
Class action launched on behalf of 100 million iPhone owners
UK government officially adopts Open Document Format
Microsoft insurgency fails, earns snarky remark from UK digital services head
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.