San Francisco Chronicle & The New York TImes – 2010-09-11 00:15:29

Torture Is a Crime, Not a Secret

Editorial / The New York Times

(September 8, 2010) — Five men who say the Bush administration sent them to other countries to be tortured had a chance to be the first ones to have torture claims heard in court. But because the Obama administration decided to adopt the Bush administration’s claim that hearing the case would divulge state secrets, the men’s lawsuit was tossed out on Wednesday by the full United States Court of Appeals for the Ninth Circuit. The decision diminishes any hope that this odious practice will finally receive the legal label it deserves: a violation of international law.

The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan, that the plaintiffs said had arranged the rendition flights that took them to Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed, had his bones broken in Morocco, where security agents also cut his skin with a scalpel and poured a stinging liquid into his wounds.

But the merits of the case were never considered because the Bush administration argued that even discussing the matter in court would violate the state secrets privilege. Barack Obama told voters in 2008 that he opposed the government cult of secrecy, but once he became president, his Justice Department also argued that the case should be dismissed on secrecy grounds.

The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and overturn a decision to let it proceed that was made by a panel of three circuit judges last year. The majority said it reached its decision reluctantly and was not trying to send a signal that secrecy could be used regularly to dismiss lawsuits. But even though it is public knowledge that Jeppesen arranged the torture flights, the majority said any effort by the company to defend itself would pose “an unacceptable risk of disclosure of state secrets.”

That notion was demolished by the five-judge minority that dissented from the ruling, pointing out that the plaintiffs were never even given a chance to make their case in court using nonsecret evidence, including a sworn statement by a former Jeppesen employee about the company’s role in what he called “the torture flights.” The case should have been sent back to the district court to examine which evidence was truly secret; now it will have to be appealed to a Supreme Court that is unlikely to be sympathetic to the plaintiffs.

The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.”

All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

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