The US Supreme Court on Monday turned away an appeal by five foreign nationals seeking to reinstate a lawsuit claiming they were kidnapped and tortured overseas at the direction of the Central Intelligence Agency.
The high court acted without comment. The case involved the US government’s use of the so-called state secrets privilege to have certain lawsuits immediately thrown out of court when they touch on sensitive national security issues.
The five men were all suspected of being Islamic militants. They alleged in a lawsuit filed by the American Civil Liberties Union that they were victims of a secret US policy called extraordinary rendition.
US officials have acknowledged that such a policy existed, but the government nonetheless urged the courts to throw the case out because the litigation would disclose state secrets.
The dismissal by the high court comes after a period of years when both the Bush and Obama administrations have increasingly invoked the state secrets doctrine to quash lawsuits seeking independent judicial oversight to examine allegations of civil and human rights violations – including torture – by the US government.
Executive officials have successfully used the doctrine to block lawsuits challenging the warrantless surveillance of US citizens by the National Security Agency and to block judicial review of the capture of an innocent German national who was held incommunicado and interrogated in Afghanistan for four months before being released, without apology. He was deposited in the middle of the night on a deserted road in Albania.
The state secrets privilege is a court-created doctrine that directs judges to dismiss cases that would require the disclosure of highly sensitive government secrets. When the government can show that the very subject matter of a lawsuit would publicly reveal sensitive national security information, the doctrine suggests judges should defer to the requests of the executive branch.
Lawyers for the five men say the issue raises fundamental questions about whether the federal courts are properly serving their constitutional role as an independent check on executive authority. It is up to the courts to hold the government accountable for alleged illegal conduct against individuals, they say.
“Otherwise, the government may engage in torture, declare it a state secret, and by virtue of that designation avoid any judicial accountability for conduct that even the government purports to condemn as unlawful under all circumstances,” ACLU lawyer Ben Wizner wrote in his brief urging the justices to take up the case.
Of the five men in the Supreme Court lawsuit, three have obtained compensatory payments from the British or Swedish governments for the role those governments played in assisting the US. In contrast, the US government has made no payments and offered no acknowledgement of mistakes or wrongdoing.
Ahmed Agiza, an Egyptian national, was allegedly transferred from Sweden to Egypt under the US extraordinary rendition policy. During questioning, Egyptian security officials attached electrodes to his ear lobes, nipples, and genitals, according to the lawsuit. At a subsequent military trial in Egypt he was sentenced to 15 years in prison.
Binyam Mohammed, a resident of Britain, was allegedly transferred by the US from Pakistan to a Moroccan prison for 18 months, where Moroccan interrogators used a scalpel to make small cuts over his entire body, including his genitals. He was later transferred to Afghanistan and then held for nearly five years at the US terrorism detention camp at Guantánamo before being released and returned to Britain.
Abou Elkassim Britel, an Italian citizen of Moroccan origin, was arrested in Pakisan. US officials transferred him to Morocco, where local interrogators allegedly used harsh tactics and obtained a confession. He was sentenced to 15 years in a Moroccan prison.
Bisher al-Rawi, a resident of Britain and an Iraqi citizen, was arrested in Gambia. He was turned over to the US and transported to Afghanistan, where he allegedly was subjected to harsh interrogation techniques. After being sent to Guantánamo, he was later released and returned to Britain.
Farag Ahmad Bashmilah, a Yemeni citizen, was arrested in Jordan and turned over to US officials. He was allegedly taken to Afghanistan for harsh interrogation. While there, he attempted suicide three times, according to the lawsuit. Eventually, he was returned to Yemen, where he was put on trial, convicted, sentenced to time served, and set free.
In 2007, the ACLU filed suit on behalf of the five men. Rather than suing the US government directly, the lawyers targeted the litigation at a US-based flight services company, Jeppesen Dataplan, which the lawyers said helped transport their clients to secret overseas locations for torture.
The ACLU obtained public records that the group says prove Jeppesen’s involvement. It says the company participated in the rendition program “with full knowledge of the consequences of its actions.”
After the lawsuit was filed, the US government intervened and urged the federal judge to throw the case out because any litigation on the subject of America’s extraordinary rendition program would harm US national security.
The federal judge agreed that the Jeppesen case would pose such a threat. The case was dismissed.
A three-judge appeals court panel reversed that decision, ruling that the federal judge must allow the litigants to attempt to prove their case and provide a defense – if they could – without relying on classified information or jeopardizing national secrets.
The government appealed to the full Ninth US Circuit Court of Appeals in San Francisco. That court voted 6 to 5 to uphold the district judge’s decision to throw the case out under the state secrets privilege.
In his brief urging the US Supreme Court to take up the case, Mr. Wizner said the government was increasingly relying on the state secrets privilege to block any judicial inquiry into “serious allegations of intentional and grave executive misconduct.”
Acting Solicitor General Neal Katyal filed a brief urging the high court not to take up the case. He said in certain “rare cases” judges have the authority to dismiss a case at the earliest stages of the litigation to prevent disclosure of state secrets.
He said the full appeals court had reached its own, independent conclusion that “the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies.” Rather, the appeals court concluded that the government was motivated by a desire to protect “legitimate national security interests.”
The Ninth Circuit decision in the case begins with an apology of sorts. The majority judges said the case forced them to confront the difficult balance between protecting state secrets and upholding transparency and accountability in the judicial system.
“Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them,” wrote Judge Raymond Fisher in the majority opinion. “After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.”
In his brief to the high court, Wizner said there was no reason to dismiss the lawsuit at the initial stage of the litigation. The parties should be permitted to prove their case through nonclassified information. If, or when, that became impossible without jeopardizing national security secrets, that’s when the privilege should be invoked, Wizner argued.
Daniel Collins, a lawyer for Jeppesen, said Wizner’s approach would force judges to “play with fire and chance further disclosure” of US secrets.
He said allowing the litigation to proceed would create a “one-sided farce in which [the ACLU] would get to present their side of the story, while Jeppesen would be stripped of any practical ability to contest petitionters’ claims.”
Wizner said enough information about the rendition program is public to support a trial. He noted that under the Classified Information Procedures Act, Congress has created a mechanism for lawyers to obtain security clearances and for sensitive documents to be replaced with declassified summaries for use in litigation.
The state secrets privilege is not an immunity doctrine, he said, but rather it is a judge-made rule dealing with the presentation of evidence at a trial.
“As the court of appeals acknowledged, the CIA’s extraordinary rendition program is not a state secret. Moreover, Jeppesen’s involvement in that program … is a matter of public record, confirmed through sworn testimony, public flight records, and other documentary evidence,” Wizner wrote.
“As a matter of law and common sense, the government cannot legitimately keep secret what is already widely known,” he said.