British High Court judges are expected to rule this week on whether a document by the U.S. Central Intelligence Agency can be publicly disclosed, thus opening the courthouse door to a lawsuit charging that the British government was complicit in facilitating the rendition of a British resident by the CIA, which tortured and secretly imprisoned him at Guantánamo Bay.
Lawyers acting for David Miliband, the British foreign secretary, last week made a last-ditch attempt to block the release of the CIA information, which reportedly shows what British authorities knew about the mistreatment of British resident Binyam Mohamed.
The information is a seven-paragraph summary of CIA documents, described earlier by Lord Justice Thomas and Mr. Justice Lloyd Jones as containing nothing which could "possibly be described as ‘highly sensitive classified U.S. intelligence.’"
In a ruling earlier this year, the High Court judges said: "Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be."
However, David Mackie, a senior government lawyer, told the two judges that Miliband had been told by Obama administration officials that the disclosure of the seven paragraphs "could likely result in serious damage to UK and U.S. national security."
The claim was made despite Obama’s recent decision to release detailed information about CIA interrogation techniques, including waterboarding.
Lawyers for Mohamed say Obama’s action means it is highly unlikely that the president would object to the disclosure of the CIA summary.
This latest move in the long-running case in the High Court comes as a federal appeals court in the U.S. gave the legal green light to a case brought there by five men including Mohamed and another British resident, Bisher al-Rawi, who say they were tortured under the CIA’s extraordinary rendition program.
The five former Guantánamo Bay detainees are suing Boeing subsidiary Jeppesen Dataplan for allegedly providing flights to secret prisons overseas, where the abuse is said to have happened.
In what may become a landmark decision, a federal appeals court recently ruled that the "state secrets privilege" routinely used by the government to block lawsuits against its officials can only be used to contest specific evidence, but not to dismiss an entire suit.
The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s "extraordinary rendition" program during the administration of former President George W. Bush.
"This is a tremendous step forward," said Mohamed’s lawyer, Clive Stafford Smith, director of the Britain-based legal charity Reprieve, referring to the decision in the U.S. case.
"Binyam Mohamed, Bisher al-Rawi [another plaintiff] and perhaps many others are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit," he told IPS.
Reprieve’s renditions investigator Clara Gutteridge said: "It is inconceivable that Jeppesen acted alone. People in the highest echelons of the U.S. and in some cases the UK governments have authorized illegal rendition flights and must also be held accountable."
The U.S. suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly "disappear" the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).
During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. The appeals court has now reversed that decision.
But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," Ben Wizner, staff attorney with the ACLU National Security Project, told IPS. Wizner argued the case for the plaintiffs.
The U.S. appeals court ruling means that the government can assert the "state secrets" privilege for specific pieces of evidence, but not to end a case before it begins.
That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.
The Obama administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen’s relationship with the United States government would jeopardize national security secrets. But now it can no longer simply "assert" that privilege; it will have to convince a judge by arguing the point in court.
(Inter Press Service)