September 8, 2010

Court Sides With C.I.A. on Seizure of Terror Suspects

By CHARLIE SAVAGE

WASHINGTON – A sharply divided federal appeals court on Wednesday dismissed a lawsuit involving the Central Intelligence Agency’s practice of seizing terrorism suspects and transferring them to other countries for imprisonment and interrogation. The ruling handed a major victory to the Obama administration in its effort to advance a sweeping view of executive secrecy power.

By a six-to-five vote, the United States Court of Appeals for the Ninth Circuit, reversing an earlier decision, dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the C.I.A.’s “extraordinary rendition” program, as it is known. The American Civil Liberties Union filed the case on behalf of five former prisoners who say they were tortured because of the program – and that Jeppesen was complicit in their treatment.

Judge Raymond C. Fisher described the case as presenting “a painful conflict between human rights and national security.” But, he said, the majority had “reluctantly” concluded that the lawsuit represented “a rare case” in which the government’s need to protect state secrets trumped the plaintiffs’ need to have any day in court.

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

Among other policies, the Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program – though the administration says it now takes greater safeguards to prevent detainees from being mistreated.

The American Civil Liberties Union swiftly said it would appeal the ruling in the Jeppesen Dataplan case to the Supreme Court, presenting the Roberts Court with a fresh opportunity to weigh in on a high-profile case testing the scope and limits of presidential power when it comes to countering terrorism.

It has been more than 50 years since the Supreme Court issued a major ruling on the state-secrets privilege, a judicially created doctrine that administrations of both parties have increasingly used to win dismissals of lawsuits related to national security matters -- thereby shielding governmental actions from court review. In 2007, the court declined to hear an appeal of a similar rendition program case by the appeals court in Richmond, Virginia.

The current case turns on the question of whether the executive branch can invoke the “state secrets privilege” to shut down entire lawsuits, or whether it could only use it to withhold particular pieces of sensitive information while allowing the litigation to go forward. In April 2009, a three-judge panel on the Ninth Circuit adopted the narrower view, ruling that the lawsuit should proceed.

But the Obama administration appealed that ruling to the full San Francisco-based appeals court. And on Wednesday, a narrow majority endorsed the broader view of executive secrecy powers, concluding that the lawsuit must be dismissed without even a trial that would be limited to already-public information.

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Ben Wizner, a senior A.C.L.U. lawyer who argued the case before the appeals court, said the organization was deeply disappointed in the ruling.

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,” Mr. Wizner said. “That makes this a sad day not only for the torture survivors who are seeking justice in this case, but for all Americans who care about the rule of law and our nation’s reputation in the world. If this decision stands, the United States will have closed it courts to torture victims while providing complete immunity to their torturers.”

Both Jeppesen Dataplan Inc. and the C.I.A. referred questions to the Justice Department, which declined to comment on the ruling.

The five plaintiffs in the case represented an array of scenarios. Some alleged they were tortured by United States interrogators in the C.I.A.’s “black site” prisons in Afghanistan and elsewhere, while others said they were tortured by other governments, like Egypt and Jordan, after the C.I.A. handed them off to foreign security services. Some have been released, while others remain in foreign prisons.

The lead plaintiff in the case is Binyam Mohamed, an Ethopian citizen and legal resident of the United Kingdom who was arrested in Pakistan on immigration charges. He claimed he was turned over to the C.I.A., which flew him to Morocco and turned him over to the Moroccan security service, who held him for 18 months and subjected him to an array of tortures, including beatings, 24-hour subjection to loud music, and cutting his penis and other body parts with a scalpel and then pouring stinging liquid on the wounds.

Mr. Mohamed was later transferred back to the C.I.A., which flew him to one of its secret prisons in Afghanistan, where he said he was subjected to loud noise like the recorded screams of women and children 24 hours a day. He was later transferred to the military prison at Guantanamo Bay, Cuba, where he was imprisoned for nearly five years before he was released and returned to the United Kingdom. He is now free.

Judge Fisher took the unusual step of urging the executive branch and Congress at length to consider granting reparations to torture victims if secret records indicated that their allegations were true – even if they had no ability to seek redress in courts. He cited the example of payments the government made to Japanese Latin Americans who had been abducted and brought to United States internment camps during World War II.

But the five judges in the dissent – who included the three who had ruled for the plaintiffs the April 2009 panel decision – criticized that notion, noting that it took 50 years for the victims of that policy to receive their reparations.

“Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter,” wrote Judge Raymond C. Hawkins for the minority.

In a sign that the decision was unusually agonizing for the majority, Judge Fisher’s opinion instructed the government to pay all the litigation costs for the plaintiffs – a highly unusual gesture since they lost the case and had not requested such payment. The A.C.L.U. said its legal team had spent many hundreds of hours working on the case, including assembling some 1,800 pages of public information as potential evidence.

The A.C.L.U. filed the case in the name of Mr. Mohamed in 2007. In response, the Bush administration asked the court to dismiss the lawsuit on state secrets grounds, in part because of fears that official confirmation that other countries had cooperated with the rendition program could endanger foreign relations.

As a senator and candidate for the White House, President Obama had criticized the Bush administration’s frequent use of the state-secrets privilege. In February 2009, when his weeks-old administration reaffirmed the Bush administration’s view on the case, civil libertarian groups that had supported his campaign expressed shock and dismay.

In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.

The Obama administration also told the court during oral arguments that it had reviewed the invocation of the privilege in the Jeppesen Dataplan case and decided that it comported with Mr. Holder’s revised standards. In the majority ruling, Judge Fisher said that the court agreed with that contention.

“That certification here is consistent with our independent conclusions, having reviewed the government’s public and classified declarations, that the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns,” he wrote.