CIA torture case dismissed

On Wednesday, a US federal appeals court ruled that victims of torture could not sue over their mistreatment while in CIA custody. While unsurprising, this finding is highly disappointing and a blow to human rights.

In a tight 6-5 ruling, the Ninth Circuit dismissed a lawsuit against Jeppesen Dataplan on the basis that such litigation could reveal national security secrets. The lawsuit was brought by multiple NGOs, including Reprieve, and was spearheaded by the ACLU. Jeppesen, a subsidiary of Boeing, provided flight planning and support to the CIA in transferring individuals to prisons abroad where they would be interrogated and tortured. The court held that, despite the fact that Jeppesen is not a governmental body, some of its alleged actions “cannot be isolated from aspects that are secret and protected.”

Interestingly, one of the precedents the court used to defend its reasoning is Totten v. US, a case from 1875. Totten was contracted in the Civil War to spy in the southern states for President Lincoln’s government. Totten’s estate sued claiming that he had not been fully compensated for his service. The case was dismissed on the grounds of state security. The Totten opinion states: “The service stipulated by the contract was a secret service…where a disclosure of the service might compromise or embarrass our government in its public duties.”

The five dissenting judges in the Jeppesen case scoffed at the ACLU’s argument that reparations should be made to the torture victims in a similar vein to those made to Americans of Japanese descent in WWII. The judges’ criticism was that reparations to Japanese-Americans took 50 years. Apparently the lesson Americans learned from the misstep of interning Japanese-Americans is that all can be remedied – but only half a century after the fact.

In his opinion, Judge Fisher recognized that the “fundamental principles of our liberty, including justice, transparency, [and] accountability” were at stake but concluded that they were trumped by national security concerns.

Ben Wizner, the ACLU lawyer who argued the case, said: “…not a single victim of the Bush administration’s torture program has had his day in court…If this decision stands, the United States will have closed its courts to torture victims while providing complete immunity to their tortures.”

Even though the suit concerned actions by Bush's government, yesterday’s decision is a boost to the Obama administration. Obama has continued practices of extra-judicial detention and the CIA renditions programme, as well as blocking habeas jurisdiction for individuals held in Bagram. An appeal to the Supreme Court is planned, but in 2007 the Court refused to hear a similar renditions suit.