A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.
The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.
By a 6-to-5 vote, the United States Court of Appeals for the Ninth Circuit dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the Central Intelligence Agency to transfer prisoners to other countries for imprisonment and interrogation. The American Civil Liberties Union filed the case on behalf of five former prisoners who say they were tortured in captivity — and that Jeppesen was complicit in that alleged abuse.
Judge Raymond C. Fisher described the case, which reversed an earlier decision, as presenting “a painful conflict between human rights and national security.” But, he said, the majority had “reluctantly” concluded that the lawsuit represented “a rare case” in which the government’s need to protect state secrets trumped the plaintiffs’ need to have a day in court.
I hate the fact that our political system presents me with a choice between the party that approves of and practices torture and the party that approves of and defends torturers. The Obama administration did not have to argue this case. They could have allowed these tortured men to have their day in court. Instead they not only defended the torturers, they used the most odious tool of the military-police state: the states secret privilege. This privilege was invented out of whole cloth in the 1950s so that the Air Force could hide the fact that maintenance negligence lead to a crash that killed Air Force personnel. At it’s heart the states secret doctrine claims that national security is so much more important than your rights that evidence cannot even be heard in a closed and controlled courtroom. It is the ultimate police state tool: we can do anything we want to you and you can never do anything about it because what we did was so important to the health of the state. Even, according to the Bush and now Obama administrations, the fact that you were tortured. Pinochet would have loved that doctrine.
Our foreign policy and our foreign policy elites are hopeless corrupt. They are addicted to violence, convinced that it is serious and tough instead of lunatic and cowardly to resort to war and torture first and always. This rot has infected both parties and almost all of our primary institutions. Getting the military-police state under control is perhaps the most important domestic battle in our country. Unfortunately, it looks as if almost no one in the courts, in politics,or in the media is on the right side of that fight.