American Civil Liberties Union: National Security and Human Rights - Research Paper Example

 American Civil Liberties Union (ACLU) filed a suit against Jeppesen Dataplan, Inc., on behalf of three foreign nationals who claimed to be the victims of extraordinary rendition program. They were joined shortly by two more foreign nationals who alleged the same. The Plaintiffs alleged that the CIA and agencies of some other government worked together to operate an extraordinary rendition program. This program was operated to gather intelligence by capture of foreign nationals who were suspecting of terrorist activities. These people were then transferred to a foreign country for questioning. According to the Plaintiffs, the extraordinary rendition program enabled the agents to “employ interrogation methods that would [otherwise have been] prohibited under federal or international law”. Apart from these allegations, the plaintiffs also made individual allegations which are: By Binyam Mohamed: He is an Ethiopian citizen and a legal resident of the United Kingdom. He was arrested in Pakistan on immigration charges. He claims that he was transferred to American officials who flew him to Morocco. He was subjected to “severe physical and psychological torture,” by the Moroccan authorities. His bones were broken due to beating. He was cut with a scalpel and “hot stinging liquid” was poured on open wounds. He was forced to listen to very loud music while handcuffed and blindfolded. After 18 months, he was transferred to Afghanistan by American officials and was kept in “dark prison” in “near permanent darkness”, forced to listen to very loud noises. Deprivation of food caused him to lose between 40 and 60 pounds. He was eventually transferred to Guantanamo Bay, Cuba. After 5 years, he was released and he returned to United Kingdom; By Abou Elkassim Britel: He is a 40-year-old Italian citizen with origin in Morocco. He was arrested in Pakistan on immigration charges. After months of detention in Pakistan, he was allegedly transferred into the custody of American officials. They dressed him in a diaper and a torn t-shirt and shackled and blindfolded him for a flight to Morocco. In Morocco, he was beaten, deprived of sleep and food and threatened with sexual torture, including sodomy with a bottle and castration. He was released but arrested again. Then he was made to sign a false confession by coercion and then convicted of terrorism-related charges and sentenced to 15 years in Moroccan prison; By Ahmed Agiza: He is an Egyptian national and had been seeking asylum in Sweden. He alleged that the Swedish authorities captured him and transferred to American agents who flew him to Egypt. He claimed to be kept in a dirty, windowless and cold cell for 5 weeks. He also claimed that in this cell, he was “severely and repeatedly beaten”. He was tortured by electric shocks by connecting electrodes to his sensitive body parts. He was held in detention for two years. He was then given a 6 hour-trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to Plaintiffs, “[v]irtually every aspect of Agiza's rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.” By Mohamed Farag Ahmad Bashmilah: He is a Yemeni citizen. He alleged that he was arrested by Jordanian government when he was visiting Jordan to assist his ailing mother. He alleges to have been subjected to severe psychological and physical abuse during his brief detention in Jordan. He was handed over American officials afterwards who flew him in the same circumstances to Afghanistan. He was detained in solitary confinement in 24-hour darkness, deprived of sleep and shackled in painful positions. He was then subsequently moved to another cell in 24-hour light and again deprived of sleep by being forced to listen to loud noises. He attempted to commit suicide three times due to the depression he was caused. He alleged to have been transferred to “black site” prison by the CIA later. He was tortured in almost a similar way over there. He was finally transferred to Yemen, tried and convicted of a trivial crime. He was sentenced to serve time abroad and finally released afterwards; By Bisher al-Rawi: He is an Iraqi citizen and a legal resident of the United Kingdom. He was arrested in Gambia while he was on a legal business. Like Binyam Mohamed and Abou Elkassim Britel, he was also dressed in a diaper and was flown to Afghanistan where he was kept in “dark prison”. He was also subjected to listen to loud noises and was deprived of sleep. He alleges that he was transferred to Bagram Air Base where he was “subjected to humiliation, degradation, and physical and psychological torture by U.S. officials.” He was beaten, deprived of sleep and threatened with death. He was eventually transferred to Guantanamo and on his way; he was shackled in excruciating pain due to his beatings. Eventually being released from Guantanamo, he returned to the United Kingdom. The Plaintiffs argued that Jeppesen Dataplan Inc. provided the aircraft and crew with logistical support and flight planning services on the flights on which the aforementioned victims were transferred in painful torture to various locations. They claimed to have gotten this information in a publicly available document1. This document claimed that claimed that Jeppesen Dataplan, Inc., has provided navigational and logistics support to the CIA's extraordinary rendition program. It also claimed that Jeppesen has provided all the facilities necessary for extraordinary rendition flights and torture flights in order to reap huge profits. This document contains a statement by an unnamed employee of the company from which it can be construed that the company had the knowledge of the operations for which the flights would be used. The plaintiffs allege that Jeppesen played an integral role in their sufferings. The plaintiffs brought suit against the Jeppesen under Alien Tort Statute, 28 U.S.C. § 1350 2. They alleged seven theories of liabilities under two claims. They brought four theories of liability under the claim of “forced disappearance”. They are: i. Direct liability for active participation; ii. Conspiracy with agents of the United States; iii. Aiding and abetting agents of the United States; and iv. Direct liability. They brought three theories of liability under the claim of “torture and other cruel, inhuman or degrading treatment”. They are: i. Conspiracy with agents of the U.S. in plaintiffs' torture and degrading treatment; ii. Aiding and abetting agents of the U.S. in subjecting plaintiffs to torture and degrading treatment; and iii. Direct liability. The Plaintiffs also alleged that apart from the unnamed employee’s confession in the public article, Jeppesen’s knowledge of the operation of flights can also be drawn from the fact that they allegedly “falsified flight plans submitted to European air traffic control authorities to avoid public scrutiny of CIA flights”. Before Jeppesen responded to the complaint, the United States Government moved to intervene and dismiss the complaint under the state secrets doctrine. The then-Director of CIA, General Michael Hayden filed one classified and another redacted and public declaration in support of the motions to dismiss the complaint. According to the public declaration, “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious--and in some instances, exceptionally grave--damage to the national security of the United States and, therefore, the information should be excluded from any use in this case… because highly classified information is central to the allegations and issues in this case, the risk is great that further litigation will lead to disclosures harmful to U.S. national security and, accordingly, this case should be dismissed.” The District Court granted the motion to intervene and dismissed the case and entered judgment in favor of Jeppesen. It stated that, “…at the core of Plaintiffs' case against Defendant Jeppesen are `allegations' of covert U.S. military or CIA operations in foreign countries against foreign nationals--clearly a subject matter which is a state secret.” The Plaintiffs appealed and the case was taken en banc3 by a panel of three judges by saying that they needed to resolve questions of exceptional importance regarding the scope and application of the state secrets doctrine. While the appeal was pending, the Obama Administration came in power and announced new policies for invoking the state secrets doctrine. The Government certified that the assertions regarding this case were reviewed at the highest level and were appropriate. “The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country's national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.”4 The contemporary state secrets doctrine encompasses two applications of this principle. They are: i. Totten Bar. This application completely bars adjudication of claims premised on state secrets. In 1876, the Supreme Court stated, “…as a general principle [ ] that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”5 This principle has been applied in very rare cases. This principle is now applied only when the very subject matter of the case is a state secret. This principle is applicable in very narrow circumstances. The Government asserted that this case should be dismissed by the application of this principle but the plaintiff dissented, and quite rightly so. The court also agreed that that this case cannot be dismissed by the application of this principle. Through history, the Totten bar has been applied only in two scenarios i.e. when the plaintiff is a party to a secret agreement with the Government 6 and when the plaintiff sues to solicit information from the government on a “state secret” matter.7 This case does not fulfill the requirements for the application of Totten bar. Also, the suits dismissed by Totten bar were filed against the Government and never against a non-government third party. The very subject matter of this case was not a state secret. It was the involvement of Jeppesen in the extraordinary rendition program. The plaintiffs were not a party to secret agreement to the government nor did they seek to solicit information from the Government. They just filed a suit to remedy “widespread violations of individual constitutional rights” occurring in a program whose existence has been made public. The scope of Totten bar is very narrow and it cannot be stretched to encompass too many complaints. ii. The Reynolds Privilege. The Totten bar cannot be applied in this case but Reynolds privilege surely can. The state secrets doctrine also encompasses a “privilege against revealing military [or state] secrets, a privilege which is well established in the law of evidence.”8 A successful assertion of this privilege removes the privileged evidence from litigation. This principle does not necessarily require a case to be dismissed unlike the Totten bar. This privilege can be asserted at the pleading stage. The courts decided that this privilege was able to be asserted in the case because the proceeding of this case was likely to reveal some state secrets. The majority also stated that the state secrets in this case were inseparable from non-secrets. The assertion of this privilege is not sufficient to dismiss all the claims in entirety. It just enables a state to be excused from answering some of the allegations which would reveal state secrets. The allegations which do not indirectly demand the revelation of state secrets must be answered so that the case can move on. The Government had a right to step forward and use this privilege to stop Jeffesen from answering allegations that could have revealed state secrets. This privilege is relevant only to the evidence and not to the facts.9 The majority concluded that the district did not use the right precedent when it dismissed this case. It must have applied Reynolds privilege in the first instant and given a privilege over the allegations which would have revealed state secrets. The District Court acted very prematurely when it dismissed this case. It should have given the Plaintiffs a chance to give a proof of their well-pleaded complaint. There are some points that cannot be determined in case to be dismissed. The Reynolds privilege is not sufficient for the dismissal of the case unless all the allegations are likely to reveal state secrets. This requires a thorough examination of allegations and upon discovery; the unprivileged allegations must be processed by the court. The majority concluded with a recommendation of alternative remedies. These remedies are not likely to be sufficient because a denial of judicial relief can be very detrimental to the Plaintiffs after what they have been through. They should be given a chance to prove the unprivileged evidences. If Plaintiff’s complaints were dealt with according to the merit, the concept of check and balance is affected. This can give a sort of a license to the Government to capture and torture anybody and assert “state secret” doctrine to veil their wrongdoings. The Government cannot be given the right to police its own errors because it would then deprive the judiciary of its role and the Plaintiffs would be deprived of their right to seek justice through an arbiter. A monetary compensation is also absurd because it is very inadequate to the sufferings of the Plaintiffs. The majority quoted, “Arbitrary imprisonment and torture under any circumstance 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.' ”.10 The majority remanded the district court to determine whether Plaintiffs can establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.11 This case presents a dilemma in a sense that we have to choose between National Security and Human Rights. The courts need to evaluate whether it is appropriate for the Government to assert the state secrets clause. The Government stepped forward before Jeppesen could answer any of those claims and before the Plaintiffs could give a proof of their allegations. This means that that the allegations made by the Plaintiffs were right. The way in which the Government stepped forward and the District court dismissed this case makes it look like a dilemma but it was not a dilemma indeed because—as the majority mentioned in its opinion—the District Court acted prematurely. The point that compels me the most to join the opinion of the majority is that the segregation of privileged and unprivileged allegations is necessary. Human Rights cannot be disregarded easily as it would cause the courts a great social cost. People would lose hope and faith in the judicial system if it fails to support the Human Rights. National Security is also of paramount importance and the majority said that it has studied the classified and the unclassified declarations by the Government very thoroughly and carefully. There were some state secrets which were extremely important to be kept secret. But the district Court was wrong to dismiss the case abruptly because it was not necessarily possible that all the allegations would have required those secrets to be revealed to process further. The separation of privileged and unprivileged evidence is the separation of Human Rights from National Security. This way, it would not be a case in which the courts have to choose one thing at the expense of the other. From the outset of this case, it seems right to choose National Security because the revelation of critical secrets could cause harm at a great extent. But it needs deeper study and analysis which the majority did and found out that the processing of unprivileged evidence could provide relief to the Plaintiffs if they succeed. Jeppesen should be made answerable to the unprivileged allegations by the Plaintiffs. Dismissal of this case without proper process and usage of correct legal principles would not only deprive the Plaintiffs of their right to justice, but also would make a huge number of innocent people of the world feel unsafe from the extraordinary rendition program. Endnotes 1. This document is an article which was published in the New Yorker. 2. The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 3. The hearing of a legal case where all judges of a court will hear the case (an entire "bench"), rather than a panel of them. 4. See Totten v. United States. 5. See Totten v. United States. 6. Totten itself involved the estate of a former Civil War spy seeking compensation. 92 U.S. 105. 7. See Weinberger v. Catholic Action of Hawaii/Peace Educ. Project. 8. See United States v. Reynolds, Para 8. 9. See Philadelphia v. Westinghouse Elec. Corp. 10. See Hamdi v. Rumsfeld. 11. Conclusion of the opinion handed down by the Ninth Circuit Court of Appeals. Works Cited Mohamed v. Jeppesen [2010] Ca9. Totten v. United States, [1876] 92 U.S. 105, 107. Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, [1981] 454 U.S. 139, 146. United States v. Reynolds, 345 U.S. 1. City of Philadelphia v. Westinghouse Elec. Corp, [1962] 205 F. Supp. 830, 831 (E.D. Pa. 1962) Hamdi v. Rumsfeld, [2004] 542 U.S. 507. Read More