Appeals Court Gives Bush and Obama 6-5 Victory in Right to Torture Case

Friday, September 10, 2010
In a decision that pitted human rights versus national security, the Ninth Circuit Court of Appeals ruled on Wednesday in favor of the Obama administration’s policy of keeping secret the details of the Bush-era torture of detainees by the CIA.
 
By a vote of 6-5, the appellate court decided former prisoners of the CIA could not sue over their alleged torture in overseas prisons because the lawsuit threatened to expose classified government information.
 
The New York Times characterized the ruling as a “major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers.”
 
The plaintiffs, represented by the American Civil Liberties Union, intend to appeal to the U.S. Supreme Court, which will give the high court its first chance in 50 years to rule on the scope of the president’s power to restrict litigation in the name of national security.
 
Judge Raymond Fisher wrote the court’s majority had “reluctantly” concluded that the lawsuit represented “a rare case” in which the government’s need to conceal state secrets was more important than giving the plaintiffs’ their opportunity to seek justice. Some of the justices who voted in the majority apparently felt so uncomfortable with their decision that they took the extremely unusual step of ordering the government to pay the plaintiffs’ legal costs, even though they had not requested it.
 
The lead plaintiff in the case, Binyam Mohamed, is an Ethiopian citizen legally resident in Great Britain. In 2001, he travelled to Pakistan and then Afghanistan. In April 2002, on his way back to Great Britain, he was arrested by Pakistani officials at the Karachi airport and turned over to the CIA, which flew him to Morocco, where he was allegedly tortured in several ways including having his penis slashed with a scalpel and hot liquid poured on the open wounds. Returned to the CIA, he was flown to a secret prison in Afghanistan where he was again tortured. In September 2004, he was transferred to Guantánamo Bay. In August 2007, the British government asked the Bush administration to return Mohamed to the U.K. In October 2008, the U.S. dropped all charges against him, but he was not released from Guantánamo until February 23, 2009.
 
In the lawsuit in question, Mohamed and the other plaintiffs sued Jeppesen Dataplan Inc., a subsidiary of Boeing and a CIA contractor, which is accused of helping transport the five men to the secret prisons.
 
Many supporters of Barack Obama’s presidential campaign had assumed that he would take a stand against the Bush torture program, but less than three weeks after he took office, Obama’s Justice Department supported the Bush administration argument that the Mohamed case should be dismissed because it would reveal state secrets.
 
When it appeared that a British court would release documents relating to the torture of Mohamed, Secretary of State Hillary Clinton reportedly threatened the British government that the U.S. would stop sharing intelligence information if the documents were made public.
 
Judge Fisher, who wrote the majority opinion in Mohamed v. Jeppesen, was appointed to the federal bench by President Bill Clinton in 1999.
-David Wallechinsky, Noel Brinkerhoff
 
Court Dismisses a Case Asserting Torture by C.I.A. (by Charlie Savage, New York Times)
Binyam Mohamed et al. v. Jeppesen Dataplan (Ninth Circuit Court of Appeals) (pdf)
 

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