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The Ninth Circuit v. the CIA

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The omnipotent power claimed by the CIA was dealt a major blow Tuesday by the Ninth Circuit Court of Appeals in the case of Binyam Mohamed et al v. Jeppesen Dataplan, Inc.

The five plaintiffs are victims of the CIA’s kidnapping, rendition, and torture program. All five were kidnapped overseas by CIA agents, transferred to brutal but CIA-friendly foreign regimes, and tortured.

They filed suit against the provider of the airplane that did the transporting—Jeppesen Dataplan, Inc. Before Jeppesen even filed an answer to the lawsuit, the U.S. government intervened and requested an immediate dismissal of the case on the ground that to permit it to go forward would result in the disclosure of “state secrets” that were vital to “national security.”

The district court granted the government’s motion to dismiss. The plaintiffs appealed. The court of appeals reversed the ruling of the district court and remanded the case with orders to reinstate it.

It is important to grasp the essence of the type of government under which we Americans now live. The CIA, which is at the core of federal power, can kidnap any person it wants, anywhere in the world. It can then transport that person to one of its secret prisons or simply transport him to a friendly regime for the purpose of torturing him.

As I have detailed in two blog posts this week, the CIA knows that as long as it is loyally following orders of the president, nothing bad is going to happen to it, even if laws are broken. No criminal prosecutions, just some regrets expressed by the president and promises never to do it again, and life goes on.

This case, however, involved a conspiracy, one that included the CIA and a private company that provided the transport plane. The victims decided to sue the airline company, seeking damages for what was done to them.

In opposing that lawsuit, U.S. officials are effectively saying, “No, you can’t sue the people who help us kidnap, rendition, and torture. Our power is full, complete, and omnipotent. We don’t have to explain, justify, defend, or be held accountable and neither do the people who help us. Everything we do to the victims will be kept secret.”

A 3-judge panel of the Ninth Circuit unanimously disagreed. As the court stated,

Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstances is a “gross and notorious … act of despotism.… But “confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

An interesting sidelight of the decision involved an astute observation on the part of the three judges: that federal officials “abuse” the state-secrets doctrine. That’s a mild, judicious way to put it. The more appropriate word is “lie.” The judges pointed to the original Supreme Court case that established the state-secrets doctrine, U.S. v. Reynolds, which was decided in 1953. In that case, executive-branch lawyers represented to the federal judiciary that the disclosure of a particular report would reveal national-security secrets. On the basis of that representation, the state-secrets doctrine was born and the plaintiffs’ suit was dismissed. In 1996, however, a review of the report revealed that the judiciary had been lied to. Disclosure of the report would have revealed not national-security secrets but rather gross incompetence that would have proved embarrassing to the government.

What happens now? When the case returns to the district court, the government will have the right to object to the disclosure of specific evidence that is secret or classified. But at least the plaintiffs will be able to seek recovery for what was done to them if they can prove their case without the use of secret or classified evidence. One thing is likely: the plaintiffs will have the opportunity to disclose under oath exactly what was done to them, notwithstanding almost certain government objections that their testimony will jeopardize “national security.”

This is assuming, of course, that the Obama Justice Department doesn’t appeal the Ninth Circuit ruling to a full panel of the Ninth Circuit or to the U.S. Supreme Court. Given that Obama has enthusiastically embraced the Bush administrations infringements on civil liberties, don’t be surprised to see the Justice Department appealing the decision.

For more analysis on this decision, see Glenn Greenwald’s blog post on it.

Yesterday, I mentioned that lawyers who spoke at our two conferences on “Restoring the Republic: Foreign Policy and Civil Liberties” are playing an important role in the national torture debate. Today’s Los Angeles Times has an excellent and moving op-ed by Joseph Margulies. And check out this recent insightful and passionate piece on torture by Andrew Napolitano.

And if you haven’t already done so, be sure to watch the conference speeches by Greenwald, Margulies, and Napolitano, which are on our website. They are timeless in nature and as important as ever.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.