Salon Radio: ACLU's Ben Wizner on immediate Obama tests

On Feb. 9, in a lawsuit brought by victims of "rendition," the Obama DOJ must either embrace or reject the Bush administration's reliance on the "state secrets" privilege. What will they do?

Published January 30, 2009 4:54PM (EST)

(updated below - Update II)

One of the principal instruments used by the Bush administration to shield itself from the rule of law was its abuse of the "state secrets" privilege.  What had in the past been a narrow presidential power designed to prevent the use in court of specific pieces of classified evidence became, in the hands of Bush lawyers, a blunt weapon used to block courts from ruling on the legality of entire programs.  It was the abuse of this doctrine -- which Barack Obama long decried and attempted to rectify with legislation he co-sponsored -- that enabled the Bush administration to prevent courts from adjudicating the legality even of programs which were fully public, such as warrantless eavesdropping, various detention policies, and its "rendition" abuses.  Put another way, it was this doctrine that was key in placing the Bush presidency beyond the rule of law, as it prevented the President's actions from being subjected to judicial scrutiny, even when those actions were plainly illegal.

The ACLU is currently representing 5 plaintiffs who were abducted by the Bush administration and then "rendered" to various countries, such as Egypt and Morocco, where they were brutally tortured.  Their original lawsuit against the responsible Bush officials was dismissed on the "state secrets" ground, and they now seek compensatory damages against Jeppesen DataPlan, Inc., a subsidiary of Boeing, which (as The New Yorker's Jane Mayer demonstrated) coordinated, enabled and profited greatly from the CIA's rendition program.  In the federal district court, the Bush administration intervened in this lawsuit and invoked its wildly broad version of the privilege, arguing that the case should be dismissed on the ground that adjudicating any claims relating to "rendition" would risk disclosure of "state secrets" and thus harm national security.  The case is now on appeal to the Ninth Circuit, and Oral Argument is scheduled for February 9 -- just over a week away.

The towering question is whether, as now seems quite possible, the Obama DOJ will actually defend the Bush administration's assertion of the "state secrets" privilege and demand dismissal of this case (which would be a complete reversal of everything Obama has said -- about rendition, state secrets, and transparency generally -- for the last two years), or whether they will abandon that claim and allow the case to proceed.  This is the first real test of the authenticity of Obama's commitment to reverse the abuses of executive power over the last eight years.  In a case involving the legality of the NSA warrantless eavesdropping program, the Obama DOJ last week did embrace the Bush administration's position, though that was on a much narrower procedural question, and it is unclear how much review that position received by the new DOJ.  By contrast, the issue to be decided in this rendition case goes to the heart of Bush radicalism, and it is definite that the Obama DOJ is actively reviewing its options in this case.

My guest today on Salon Radio is Ben Wizner of the ACLU's National Security Project, who is representing the 5 plaintiffs.  We discuss the implications of Obama's choice here; the very relevant (and under-appreciated) option of allowing civil remedies for the victims of Bush's torture and surveillance programs (as something that brings a measure of justice for the victims and shines sunlight on the key facts); and the reasons why assertion of the "state secrets" privilege here by the Obama DOJ would be so abusive and so contrary to everything Obama has argued in the past.

I genuinely found Ben's analysis of these issues to be illuminating and I highly recommend the interview.  It is roughly 20 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will likely be posted tomorrow.


UPDATE:  As a reminder:  On Saturday, February 7, 2009, at 12: 30 p.m. in Boston, I'll be delivering the keynote address at the ACLU of Massachusetts Conference:  Reclaiming our Civil Liberties.  Immediately after that speech, beginning at 1:15 p.m., I'll be on a panel discussion entitled Beyond the Politics of Fear, focusing on ways to ensure the Obama administration restores civil liberties and the rule of law.  For anyone in or near the Boston area (or anywhere else, for that matter):  the event is open to the public (registration is here), and will include numerous panels on several other issues relating to civil rights and civil liberties (the full schedule is here - .pdf).  The event site with full information is here.


UPDATE II:  The transcript is here.

To listen to this interview, click PLAY on the recorder below:


Glenn Greenwald: My guest today is Ben Wizner, an attorney with the ACLU's national security project, and we are here to discuss several imminent events that will provide an early and important test of the authenticity of Barack Obama's commitment to reversing some of the legal abuses of the last eight years. Ben, thanks very much for joining me today.

Ben Wizner: Hi, Glenn. Thanks.

GG: I want to begin by talking about the pending case in which the ACLU and you are involved, which concern the claims by five individuals, that they were subjected to the Bush administration's rendition program. They were snatched up by the United States and shipped to various countries, flown there, where they were subsequently tortured and abused in all sorts of ways. And as I understand it, that lawsuit that has been brought is one that has been brought against the airplane company that actually did the air transporting of these individuals on behalf of the Bush administration.

So we'll talk about the legal issues in just a moment, and the challenge that has been presented to the Obama administration in this case as well. But first let's talk about the background of this case. Who are these individuals, and what's the ACLU's role, and what are the claims that are being made, and why are they being made against this company as opposed to the government?

BW: This is the second case that the ACLU has brought that I have been involved in challenging the CIA's so-called extraordinary rendition program. As you said, that was the CIA's program whereby foreigners were snatched up off streets in Europe, in the Middle East, in Pakistan, and in other places, and transported either to secret CIA black site prisons, where they were tortured, or to prison in countries like Egypt and Morocco that are notorious for their torture regimes, and which our own State Department has routinely condemned as serial torturers.

The first case we brought was on behalf of a German citizen named Khalid El-Masri, against George Tenet and others in the CIA for his torture and disappearance, and in that case the Bush administration invoked something called the state secrets privilege, which would be familiar to your readers. It's a tool they've used to torpedo all kinds of challenges to their unlawful conduct, and essentially what the CIA said is, it doesn't matter if these allegations are true or false, any litigation of these claims will reveal state secrets and jeopardize national security. El-Masri's case was thrown out; the conservative Fourth Circuit in Richmond, Virginia, upheld that dismissal and the Supreme Court declined to hear that case.

GG: Let's just quickly recap that: That is an instance where there was a citizen who was abducted and subsequently tortured by the United States government, who, more or less everybody agrees was not in fact guilty of anything; was actually not a terrorist and was abducted due to mistaken information or some other error; who then sought compensation for his ordeal in the federal court, and our federal courts--all the way up to the Supreme Court--simply turned him away and said, we're not saying that you're wrong in your claims, we're saying we're not even going to listen to anything you have to say about this case because to do so would be to risk disclosure of the program over which you're suing, and that outweighs your right to be compensated for what was done to you by the government. That's basically what our courts said to him.

BW: Right, and there are two things that are extraordinary about the El-Masri case in particular. For one thing, the idea you alluded to, the facts of this story are absolutely well-known, have been the front pages of the New York Times and Washington Post, are in books, and all of these stories are based on CIA and other government sources, that essentially said, well, in this case we got the wrong guy. So the position of the Bush administration, accepted by conservative judges in that case, really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen.

And the second thing is that the case was dismissed without any kind of adjudication of either the law or the facts, and that's important. The court didn't say, the facts that you allege are not true or are in doubt. The court didn't say that the conduct you allege is legal. It didn't reach either of those issues.

What the Bush administration succeeded in getting the court to do is to throw it out without reaching those issues. You have a situation where the executive branch officials who have defended the rendition program have said not only that it's necessary, but also over and over again that it's perfectly legal. That every time we try to test the legality of the program in a court, they do everything possible to avoid having that question answered by a judge, and so far they've succeeded. So this second case...

GG: Let me just interject here--and it relates to what the challenge now is for the Obama administration in this case which is one of the extraordinary aspects of the state secret privilege, how this abused this doctrine has been--is that literally programs which, as you say are discussed and disclosed everywhere in the world including the front pages of our newspapers, become the subject of this claim. That it can't be adjudicated in a federal court because to disclose any details about it would be to jeopardize the national security of the United States. And of course that claim was made even with regard to attempts to have, in federal court, the legality of the NSA spying program tested, the details ...

BW: Well, there it was used in an especially devious way, because, as you know, the ACLU challenged the illegal warrantless wiretapping by the NSA, and we did so on behalf of a number of lawyers and journalists and human rights activists, who had reason to believe that their overseas communications would have fallen within the program as it was publicly described.

And the government made two arguments. The first argument was, you don't have legal standing, you don't have any right to bring this kind of case into our court, because you don't have any evidence that you were victims of this wiretapping program.

But number two, because of the state secrets privilege, you are never entitled to get evidence that you were wiretapped, and therefor no one will ever have legal standing to challenge this program. And therefore, no court, which under our Constitution is the branch of government which is supposed to say what the law is, can never possibly have a chance to do that, because no person will ever have legal standing.

So, you're right. The state secrets privilege has been used across these challenges as a way of preventing federal courts from doing what the Constitution says they're supposed to do, and that is: ruling on the legality of executive action.

GG: It's really been I would say the prime tool used by the Bush administration to shield itself from judicial scrutiny, which is another way of saying it's been used as the prime instrument by which the Bush administration has shielded itself from the rule of law. They can break the law, even admit that they've done so, and then if you go into a federal court in order to get a ruling that they've done that, they tell a federal court, and the federal court agrees, that the court has no role whatsoever to play in adjudicating whether they broke the law. Which means that nobody has the role to play of finding the government broke the law if the courts don't.

So here we are now in this case that I referenced at the beginning, with these five individual defendants. So go ahead and talk about where this case is, and how we've gotten to this point.

BW: This is the second challenge we filed against the rendition program. In this case the primary defendant is not the CIA or the CIA agents who were the defendants in the El-Masri case, but a private corporation that is a fully-owned subsidiary of the Boeing company, called Jeppesen DataPlan. And Jeppesen, its role in the rendition program was uncovered by the New Yorker's Jane Mayer.

They were essentially the CIA's torture travel agents. They were the one who arranged all the overflight rights for the CIA civilian planes to be able to fly from country to country. They handled the security and the logistics. They filed dummy flight plans to try to trick air traffic controllers into not being able to track where the actual flights were going. And we know they knew what they were doing because we have a witness in our case, someone who's given us a sworn declaration, who was an employee of Jeppesen DataPlan, and who was present when senior officials of the company were openly boasting about their role in the torture flights, and about how much money they made from them because the CIA spared no expense.

We were able, with the help of an investigative journalist and other documentary evidence, to link Jeppesen to an number of very specific CIA rendition flights, involving these five torture victims who were flown to countries like Egypt, Morocco, to CIA sites in Afghanistan and eastern Europe.

GG: Go ahead and describe--just pick one of the plaintiffs in this case--and describe the ordeal they were subjected to as part of this program.

BW: Sure. Ahmed Agiza is an Egyptian national who was living in Sweden, and seeking asylum there because he legitimately feared that if he was returned to Egypt, he would be tortured, because he was suspected of having been involved in the Muslim Brotherhood there. He was picked up off the streets of Stockholm and then he was taken to an airport where a CIA rendition team--this is a bunch of men dressed all in black, with their faces covered--sliced off all of his clothes, put a suppository into him, chained him to the floor of an airplane, flew him to Egypt, where he was exposed to absolutely brutal torture, including shock treatment, all kinds of beatings. He was then given a show trial in an Egyptian military court and sentenced to 15 years for involvement in a banned organization.

His has been an extremely well-documented case; it's been in books by Seymour Hersh and others. The UN has investigated this; the Swedish government has investigated this case.

In fact, just a couple of months ago, the Swedish government agreed to pay Ahmed Agiza $450,000 for its secondary role in the CIA's rendition of Agiza to Egypt. So there's no real secret involved here. Nothing would be revealed by allowing Agiza to go forward in a case against the CIA, because Jeppesen's role is public, because Sweden's role is public, and because Egypt's role is public--he's in an Egyptian prison right now.

This gives you a sense of how the state secrets privilege here is not being used to prevent disclosure of anything, but just to prevent liability in court, to prevent judicial confirmation of what the entire world already knows.

The other four plaintiffs were exposed to equally harrowing ordeals, some of them even more shameful, because the torture took place not in foreign prisons, but in our own prisons: in CIA-run black site prisons. Now, this case was filed in San Jose, where Jeppesen has its headquarters.

GG: You say the case is commenced in San Jose against Jeppesen, and you said that this was the second case that has been commenced with regard to these abductions. What happened with the first case, what was the ultimate disposition, and against whom was that case filed?

BW: The first case is the one that we discussed earlier, and that was Khalid El-Masri's case against George Tenet and others, which was dismissed by the federal district court in Virginia on state secrets grounds. That dismissal was upheld by a conservative Fourth Circuit Court of Appeals, and the United States Supreme Court refused to hear Khalid El-Masri's challenge.

That case is over in the US courts. Khalid El-Masri with our help has actually filed a petition in something called the Inter-American Commission, which is a international human rights body, to protest against the United States' refusal to provide him a forum. So that is another place where that case will live on. But for all intents and purposes, in U.S. courts, Khalid El-Masri's case is over.

GG: The second case gets commenced, and this time it's not against the federal government, or any particular agents of the federal government, but instead against this private entity, this subsidiary of Boeing, Jeppesen, for its role in the rendition program. Now, here you have a case a private entity only, that does not have the right to assert the state secrets privilege - only the federal government has the authority, or maybe the executive branch only has the authority, to assert the state secrets privilege. So how does that issue make its way into your lawsuit against Jeppesen?

BW: This is what you saw previously in the lawsuits against the telecommunication companies for their alleged role in the NSA warrant less wiretapping. In that case and in this one, before the main defendant was even required to respond to the complaint, there the NSA, and this case the CIA, intervened in the lawsuit. The director of the CIA, Michael Hayden, filed two declarations, one of them public, and one of them classified, that we have not seen and will never see, asserting the state secrets privilege and explaining why, even before the defendants could be required to answer the complaint, the suit had to be thrown out.

This is the way that the Bush administration has been using the state secrets privilege. And I don't want to get too technical here, but this is an evidentiary privilege; it's supposed to be invoked with respect to discrete pieces of evidence during discovery in a case.

Let's say I wanted to learn the identity of a Valerie Plame in a lawsuit. I shouldn't be allowed to do that, and the CIA could legitimately invoke the state secrets privilege to protect a piece of evidence like that. Here it's not being used to block the disclosure of evidence; it's being used as a kind of immunity doctrine.

What the CIA is really saying is, you can't sue us over stuff like this. And although there's nothing in the law that gives them the right to say it that way, they're dressing it up in the language of secrecy, but what they're really going for is immunity.

I should say, quickly, that claim was accepted by a district judge in San Jose, the case was dismissed, and the argument that's coming up on the 9th of February is in the Ninth Circuit Court of Appeals in San Francisco. And it's an appeal from the dismissal of this case.

GG: So nothing--let me just clarify this--nothing in this case has taken place thus far under the Obama administration. This will be the first proceeding in this case where the Obama DOJ is in place.

And so the question them becomes, will the Obama Justice Department defend the assertion of the state secrets privilege, using this extraordinarily broad and sweeping version of it that you just described, or will they withdraw that claim and allow the case to proceed? That's the question currently...

BW: That's right. And I think there are a number of factors that weigh in favor of the Obama administration taking a second look here. As a presidential candidate, and even since his election, President Obama was unequivocal in his condemnation of the rendition program. Since his election, he has announced an admirable commitment to government transparency. And third, as a senator, Senator Obama was a co-sponsor of legislation that would reform the state secrets privilege and the government's use of it, and his co-sponsorship of that legislation really is in line with our position in this litigation.

GG: About what the state secrets privilege is? Right. In other words, Obama had advocated that the state secrets privilege be significantly reduced, that there be reforms in terms of how it's used, that it's only used to shield legitimately confidential items of evidence, and not blockade entire litigations over whole issues, right? So, it would be impossible, I would think, for the Obama Justice Department to defend the assertion of state secrets in this case, in a way that is even remotely consistent with Obama the candidate and Obama the senator had said about this matter.

BW: And I think there is even more global significance to this case, because there's been a lot of talk about accountability, obviously, in the last weeks and months. But most of that discussion has been in terms of criminal accountability and liability and should there be criminal investigations, and should there be prosecutions, should that be on or off the table, and you have a lot of voices saying how divisive criminal investigations of the perpetrators would be.

But there's a fact that I think that has slipped beneath the radar. And that is that no torture victim has had his day in court in a civil case. And whatever you think about liability against the perpetrators, it's hard to stand up for the rule of law in a system where none of the victims have been allowed access to a forum to vindicate their rights.

And again, I mean I understand that there a differences of opinion about prosecution. But every single case brought by a torture victim against US officials, their allies or contractors, for their role in the torture regime, every single one of those has been dismissed at the very outset, either because of the state secrets privilege or because of other technical immunity doctrines. So, we really need to start talking about, not just criminal liability, but also civil liability, as another way to get courts to rule on the legality, and the illegality I would say, of what happened in the last seven years.

GG: Yeah, you know, that's an interesting point, especially because, obviously no high-level Obama official has been willing to commit one way or the other on a question of whether prosecutions, criminal prosecutions, are going to be pursued for these various interrogation and detention programs. But people like Eric Holder have said things like, what we need in this country is a reckoning on these matters, and even lots of advocates arguing emphatically against criminal prosecutions are arguing that what we need are full disclosure of the facts.

And so it would very odd, very discouraging, and I think inconsistent at best for the Obama administration to now go into a federal court where there's no prospect of criminal prosecution, only compensatory damages for the victims of these programs, and argue, not that compensation is unwarranted--that would be a position they might want to take--but instead that we need to keep these facts completely concealed and to invoke a version of the state secrets privilege that Obama himself has opposed in the past. As you say, to let these lawsuits go forward is completely consistent with what even the people who are arguing against prosecutions are claiming, which is that, well, what we need is disclosure of these facts and not retribution.

The argument on appeal to the Ninth Circuit, what, a week away or so, a little bit more than a week away. Have you gotten any indication at all as to what the Obama Justice Department intends to do in terms of their position? If they were going to abandon the Bush position that the state secrets privilege bars litigation of these claims, wouldn't you need to know that rather quickly?

BW: Well, without getting into what communications we may or may not have had with lawyers for the government, I will say this: if we had already received an indication that they were going to change their position, we would not be having this interview right now. What they might choose to do, if the nine days between now and the argument are not enough for them to get their act together, would be to do what they've done in other cases, which is to ask the court for some kind of delay, in order for them to evaluate whether they're really going embrace construction of the state secrets privilege that effectively legalizes torture, at least as far as remedies.

Because again, what they're saying in this case, is that the executive branch can engage in torture, declare it a state secret, and by virtue of that declaration alone, avoid any kind of civil liability or judicial accountability for conduct that even the United States government purports to condemn as illegal in all circumstances. This really is a demand for judicial immunity for war crimes.

GG: Yeah. Conduct that is shielded from judicial scrutiny of any kind, or remedies of any kind--which is what this assertion of the state secrets privilege in this case does--is conduct that ipso facto is legal, because it is immune from the rule of law. And it is amazing that the conduct in this case that's alleged to have taken place is conduct that even the U.S. government admits is illegal. So it would be extraordinary to simultaneously take the position that the state secrets privilege should protect judicial scrutiny of illegal behavior, because that would basically argue that illegal behavior ought to be deemed legal.

BW: You have to look it from both sides of the coin, which is that if you're going to take criminal prosecution off the table, and then close the door to civil liability, you have effectively legalized the conduct at issue.

GG: That's right. Last question, Ben. There's been some controversy about the fact that there were memoranda issued by the Justice Department under the Bush administration, and specifically the Office of Legal Counsel, that essentially justified numerous programs involving torture and interrogation and the like. And those memoranda have been, to this day, many of them have been kept secret. And part of the commitment that the Obama administration has made is for much greater transparency with regard to those documents specifically, and generally. What is being done to try and secure disclosure of all of those memoranda that to this day are still concealed?

BW: This really is an astonishing issue, because even if you believe that there might facts related to intelligence programs that are legitimately secret--and I think that there the government certainly has been abusive of that right--in what kind of democracy do you have secret laws? There's are still dozens of memoranda that justify the Bush administration's illegal surveillance and torture and rendition policies that have not been released. And there's simply no basis for withholding the law. If there are minor factual issues that have be redacted from some of them, that can be addressed on a case by case basis, but the idea that there are still dozens of these legal opinions sitting in the Justice Department that the world hasn't seen, and I think the only explanation for the Obama administration's delay in releasing them--they will have to release them--is that even the transition Justice officials were not allowed access to them until they actually took office on January 21st.

Perhaps they just want to read them all before they release them so they're prepared to answer questions. But those documents are all subjects of several ACLU FOIA lawsuits. We've been trying to get them in court for many, many years.

Given the Obama administration's position on transparency, and given the appointees to the Office of Legal Counsel, it's hard to believe that we'll have to fight for their release in court. And I expect that they will all be released in due course.

GG: Yeah, I expect that too, and it's great to see the ACLU, though, staying on top of that and pushing that. I think it will be very interesting to see what the Justice Department does in the rendition case. I think that'll be a real test, and if they end up taking the Bush position on state secrets, that should, and I think will, generate some real controversy, and we'll definitely continue to follow that.

Ben, thanks very much for talking to me today; it was very illuminating and I appreciate it.

BW: Always a pleasure, Glenn. Thank you.


[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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