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The State Secret That Everyone Knows

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February 5, 2009

Today, The New York Times ran about one of the 老澳门开奖结果鈥檚 rendition cases 鈥 Mohamed et al. v. Jeppesen. On Monday, February 9 the U.S. Court of Appeals for the 9th Circuit in San Francisco is scheduled to hear oral arguments in our case against Boeing subsidiary Jeppesen Dataplan, Inc., for its role in the illegal extraordinary rendition program.

The Bush administration inappropriately invoked the 鈥渟tate secrets鈥 privilege, claiming that hearing the case in court would undermine national security interests (even though much of the evidence needed to try the case is already available to the public). The case was dismissed in February 2008, and our appeal of that decision next week will present the Obama administration with their first opportunity to break away from the Bush legacy of abuse and secrecy.

The editorial, entitled 鈥淯nraveling Injustice,鈥 states:

The Bush administration鈥檚 claim is that the 鈥渧ery subject matter鈥 of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.鈥檚 rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

It is also contrary to Mr. Obama鈥檚 stated views鈥nstead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.

Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The suit seeks to hold Jeppesen accountable for their knowing participation in the illegal extraordinary rendition program 鈥 and specifically the provision of critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to detention and interrogation. To date, no victim of the extraordinary rendition program (in this case or any other) has been granted their day in court, let alone been afforded any kind of redress for their injuries. Some are still detained.

As the editorial points out, the case is the first test of the Obama administration鈥檚 and his willingness to make a clean break from Bush policies of torture and extraordinary rendition.

Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy. That certainly does not fit principles that the new president has so often articulated.

In the comments section, one notes, 鈥淔our and a half years in detention, then released without any charges filed. I'd say the man has a case.鈥

We couldn鈥檛 have put it better ourselves.

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