Court Denies Justice For Torture Victims

Ahmed Agiza was captured by Swedish authorities and transferred to the custody of the US government, which delivered him to a "squalid, windowless, and frigid cell" in Egypt where for five weeks he alleges he was tortured with electrodes that were attached to his ears, nipples and genitals. Abou Elkassim Britel was captured by the authorities in Pakistan and likewise transferred into American custody, which in turn delivered him to a cell in Morocco where he says he was beaten and threatened with sexual torture and castration. Another man, 28-year-old Binyam Mohamed, alleges he too was subjected to "severe physical and psychological torture" in Morocco thanks to U.S. authorities.

All three men say they were victims of the CIA's secret rendition program, where those suspected of ties to terrorism during the Bush administration were jettisoned off to black sites around the world and tortured without so much as a rubber stamp from a military court. But thanks to arguments by the Obama administration and a ruling from a US appeals court Wednesday, neither they nor other victims of the program are likely to ever be able to present their case in open court, much less achieve justice.

In a September 8th decision in the case Mohamed et. al. v. Jeppesen Dataplan, the U.S. Court of Appeals for the Ninth Circuit did not dispute the claims of the five men on whose behalf the suit was brought by the American Civil Liberties Union back in May 2007. To reiterate: the court did not dispute that the men were kidnapped by the CIA and tortured. Rather, speaking on behalf of the majority in the 6-5 ruling, Judge Raymond Fisher said the plaintiffs, who brought the suit against a subsidiary of Boeing said to have facilitated their transfers, are effectively barred from presenting their case due to the "state secrets" doctrine -- which you won't find much mention of in the Constitution -- and that the disclosure of evidence at trial would "seriously harm legitimate national security interests."

While acknowledging the "difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security," the decision adds that, though "as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. . . . After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed."

In an at-times scathing dissent, however, Judge Michael Daly Hawkins opines that the court rejected the case without even allowing the plaintiffs a chance to respond to the Obama administration's state secrets argument. Further, "the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the alle- gations to be secret." And the majority's suggestion that the victims could receive still receive compensation -- if not necessarily justice -- from Congress, much like Japanese-Americans held in internement camps during World War II, "elevates the impractical to the point of absurdity," Hawkins writes.

Ben Werzer, a staff attorney with the ACLU who argued the case before the Ninth Circuit, says the ruling has "extinguished" all hope of achieving justice for the victims of torture at the hands of the CIA and its allies. If allowed to stand, "the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers," he says. "The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history."

Photo Credit: Fredrik Olastuen