Kidnap subject. Strip off his clothes and dress him in a tracksuit. Blindfold and shackle him. Force headphones over his ears. Fly him to an unknown location to be interrogated, tortured, and imprisoned. Repeat.
This is the practice of "extraordinary rendition," and the experience of 35-year-old U.K. resident Binyam Mohamed on his journey home to London from Pakistan in July 2002. He was kidnapped to Morocco, where he was held for 18 months and tortured repeatedly. "They cut off my clothes with some kind of doctor's scalpel," he wrote in his diary. "I was totally naked…One of them took my penis in his hand and began to make a cut…He did it once, then stood still for maybe a minute, watch my reaction. It was an agony, [I was] crying, trying desperately to suppress my feelings, but I was screaming. There was blood all over."
This was just one of 20 to 30 incidents in which Mohamed was cut on his genitals while detained in Morocco. Interrogators routinely beat him, breaking bones and sometimes knocking him unconscious. He was frequently threatened with rape, electrocution and death, drugged repeatedly, and forced to listen to loud music day and night.
In January 2004, he was handcuffed and blindfolded again, placed in a van and driven to an airfield, then stripped, photographed extensively and put on a plane to a "Dark Prison" in Kabul, Afghanistan. Mohamed endured similar torture and daily interrogations in Kabul. In May, he was sent to Bagram. In September, he was sent to Guantánamo Bay. Mohamed was in Guantánamo for more than four years, and was released in February 2009. His military commission charges were dropped in October 2008.
While his case wends its way through the U.K. judicial system, which has so far agreed with Mohamed's claims that British intelligence agents were party to his rendition, Mohamed is also the lead plaintiff in our lawsuit against Boeing subsidiary Jeppesen DataPlan Inc., the company that provided critical logistics and travel planning services for more than 70 extraordinary rendition flights in a four-year period—including the ones to render Mohamed to Morocco and to Afghanistan.
When we filed the case against Jeppesen back in May 2007, the government immediately intervened, claiming the entire subject matter was a state secret and that allowing the case to proceed would endanger national security. The district court bought that argument in February 2008, and dismissed our case.
We know about Mohamed's ordeal, as well as similar accounts by our other clients, because the Bush administration's use of extraordinary rendition has been chronicled in magazines, newspapers, documentaries and even official U.S. government documents obtained under Freedom of Information Act litigation. So much is known about the practice, in fact, that to call it a "secret" is absurd.
We appealed the district court decision in June 2008 and, in February of this year, we argued before a three-judge panel of the 9th Circuit Court of Appeals that the state secrets privilege must only be invoked with regard to specific pieces of evidence, not used to dismiss a suit at the outset. But the Department of Justice, now under President Obama, toed the Bush administration line and maintained that extraordinary rendition is still a state secret, despite the reams of information about the program already available to the public.
In April 2009, the 9th Circuit agreed with the ACLU that the government can only use the state secrets privilege to block specific pieces of evidence, not to throw out whole cases, and sent the case back to district court. The DOJ requested that the 9th Circuit re-hear the case, this time before an en banc panel of 11 judges. The 9th Circuit granted that request.
Today, for the third time in this case, we'll argue against the use of state secrets privilege. We haven't gotten anywhere near the substance of the case: whether it was illegal for Jeppesen to assist the CIA in kidnapping men like Binyam Mohamed to places like Morocco where they would be tortured.
In his speech accepting the Nobel Peace Prize last Thursday, President Obama said: "Those regimes that break the rules must be held accountable." We couldn't agree more.
Which is why it's galling that the Obama administration has obstructed accountability for torture and rendition at every turn. It's withheld information about the Bush administration's torture, detention and interrogation program in our Freedom of Information Act lawsuit. It refuses to release the photos depicting this torture and abuse. It even denies that torture was illegal at Guantanamo from 2002 to 2004. And it argues that the extraordinary rendition program is a state secret.
If this continues, the Obama administration will create a framework for impunity that will only embolden future administrations to ignore the rule of law. Torturers will feel free to torture, and presidents will feel free to break the law.
Another plaintiff in Jeppesen, Mohamed Farag Bashmilah, recently penned an opinion piece about his forced disappearance in the name of national security. He writes: “The American public deserves to know what was done to people like me — and I deserve to know why I lost nineteen months of my life — all in the name of protecting their security... Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.”
Torture victims deserve their day in court. Tell President Obama to stop covering up the Bush administration’s torture program.
