Scott Horton weighs in on the 9th Circuit Court of Appeals granting of absolute immunity for kidnapping to torture:
State Secrecy and Official Criminality
By Scott Horton
The Ninth Circuit Court of Appeals split down the middle in finding (PDF) that the Justice Department was entitled to halt a civil lawsuit between private parties because of the threat that the suit would expose state secrets. By the margin of a single vote, it reversed the decision of a panel of the same court (PDF) holding that the doctrine could only be applied to individual pieces of evidence, not to entire lawsuits.
The case, Mohamed v. Jeppesen Dataplan, involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, inbriefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world—the Court of Appeal in London–had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.
The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamedcase. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion—or even in most of the press accounts about it.
Both the New York Times and the Los Angeles Times have called the Department on its acts of constitutional treachery. From the West Coast:
The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.
From New York:
The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.” All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.
The majority opinion is so thoroughly unconvincing that the court makes a pathetic plea to other branches of the government to do what is properly its function: fixing the claims of torture victims and awarding them damages.
By signing the Convention Against Torture, the United States made an unequivocal commitment to the international community to compensate those who are tortured by its agents. The Ninth Circuit has made a liar out of Uncle Sam and a mockery of its duty to uphold the law proscribing torture.
September 13th, 2010
Last week veteran Middle East correspondent Robert Fisk and other reporters had a disturbing series, the result of a 10 month investigation, on honor killings in the Independent. The first story is here.This is how it begins:
It is a tragedy, a horror, a crime against humanity. The details of the murders – of the women beheaded, burned to death, stoned to death, stabbed, electrocuted, strangled and buried alive for the “honour” of their families – are as barbaric as they are shameful. Many women’s groups in the Middle East and South-west Asia suspect the victims are at least four times the United Nations’ latest world figure of around 5,000 deaths a year. Most of the victims are young, many are teenagers, slaughtered under a vile tradition that goes back hundreds of years but which now spans half the globe.
A 10-month investigation by The Independent in Jordan, Pakistan, Egypt, Gaza and the West Bank has unearthed terrifying details of murder most foul. Men are also killed for “honour” and, despite its identification by journalists as a largely Muslim practice, Christian and Hindu communities have stooped to the same crimes. Indeed, the “honour” (or ird) of families, communities and tribes transcends religion and human mercy. But voluntary women’s groups, human rights organisations, Amnesty International and news archives suggest that the slaughter of the innocent for “dishonouring” their families is increasing by the year.
Iraqi Kurds, Palestinians in Jordan, Pakistan and Turkey appear to be the worst offenders but media freedoms in these countries may over-compensate for the secrecy which surrounds “honour” killings in Egypt – which untruthfully claims there are none – and other Middle East nations in the Gulf and the Levant. But honour crimes long ago spread to Britain, Belgium, Russia and Canada and many other nations. Security authorities and courts across much of the Middle East have connived in reducing or abrogating prison sentences for the family murder of women, often classifying them as suicides to prevent prosecutions.
The other stories are here:
September 13th, 2010
Columbia Journalism Review reminds us that Obama’s “deficit” [aka, cut social security] commission’s cochair, Alan Simpson has a history of abusing his power to cow critics of social security “reform”:
In the mid-1990s, Simpson, as chair of the Senate Finance Committee’s subcommittee on Social Security and family policy, picked up the attacks made on the organization by conservative think tanks worried that AARP could block their efforts to cut Medicare and Social Security.
One group, the Capital Research Center, which tracked the funding sources of nonprofit groups engaged in public interest advocacy, launched a frontal assault on AARP and the now-defunct National Council of Senior Citizens. As I reported in my book, Slanting the Story—the Forces That Shape the News, the Capital Research Center struck at the intersection of AARP’s business and advocacy interests—the tax exemption which “allows the group to sell products and avoid paying taxes on the profits as long as those profits are related to activities that benefit its members.” The media quickly passed along the attacks—and so did Simpson.
Simpson, who disagreed with the AARP’s positions on Medicare and Social Security, believed the group was obstructing budget cuts that Republicans needed to make in order to offset a planned round tax cuts. Simpson held hearings on the AARP’s finances. “I’m a chairman. I can have hearings,” he boasted to reporters in the Capitol corridor, dancing a little jig and pumping his arms in the air. A few days before he announced the hearings, Simpson said “People ought to know where their money comes from and what it’s used for.” As I reported at the time, Simpson never produced a smoking gun, but he created plenty of smoke, focusing on irrelevancies like the size of AARP’s new building and its executives’ salaries.
But the AARP recognized what the hearings were really about. At a meeting with AARP’s board and staff, Simpson told them “I want you to know that the intensity of my investigation will be directly related to the intensity of your fight on Medicare.” In an interview then, AARP’s chief lobbyist John Rother told me: “Many people on the right wing realized that AARP was the force to contend with. They realized they wouldn’t get anywhere unless they dealt with us as an institution.”
Apparently they have. As former AARP CEO Bill Novelli told The Fiscal Times, “AARP always tried to take a rational approach. They believe you have to work both sides of the equation. Everything has to be on the table.”
Given that Simpson and others threatened AARP’s very existence so directly, it’s hardly surprising the group did not call for his resignation a few weeks ago. Perhaps they’re afraid that if they play hardball with Simpson, Simpson and others will play hardball with them. Nor is it surprising that Novelli, in his new role as a Georgetown University professor, has joined the Concord Coalition’s Bixby, Peterson Foundation CEO David Walker, and others on a road show this fall billed as a “Fiscal Solutions Tour.”
Nor is it curious that Rother just a few weeks ago told Laura Meckler of The Wall Street Journal that acting sooner allows for changes to be made gradually, and will reassure younger workers that the program will be there for them. Meckler reported that Rother dismissed those who said they can never support benefit cuts. Shortly after the Journalstory appeared, AARP sent out a backpedaling statement from Rother with a headline “AARP Reaffirms Strong Opposition to Cutting Social Security Benefits to Reduce a Deficit It Did Not Cause.” No one has really said it did. Now how’s that for fence-sitting?
Apparently, we’d better watch AARP “compromises” as the campaign to cut social security gains steam.
September 13th, 2010
According to news reports, Wikileaks will soon release hundreds of thousands of Iraq field reports that should provide an amazing view into war as it is actually fought:
Whistleblower website Wikileaks is collaborating with print media in several countries and a number of major television networks, including one or more American media outlets, to release a large number of documents and military field reports related to the Iraq War, Newsweek reported on Thursday.
The release is certain to be larger than the 92,000 documents released that painted a dark picture of the U.S.-led conflict in Afghanistan, which caused significant international controversy and spurred a sharp criticism from nearly every relevant agency in the U.S. Government. Iain Overton, editor of The Bureau of Investigative Journalism, said that release will be several weeks from now but he declined to mention any of the media organizations participating in the project.
Overton defined the material held by Wikileaks as the “biggest leak of military intelligence” that has happened in U.S. history, and possibly internationally as well. It’s understood that the media organizations participating in the project will be making financial contributions to “help meet production costs” and that each organization will come up with its own take on the material.
Wikileaks has “significantly learned from past experiences” regarding the disclosure of material that would put lives in danger, Overton said. He said that the organization won’t be posting raw U.S. government reports on the web, saying that he sees the group’s job as digging stories out of the raw material and not publishing it in the original form.
September 13th, 2010
The New York Times reports that Microsoft is aiding the Russian state suppress civil society organizations challenging authorities:
Instead, the group fell victim to one of the authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.
Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government.
As the ploy grows common, the authorities are receiving key assistance from an unexpected partner: Microsoft itself. In politically tinged inquiries across Russia, lawyers retained by Microsoft have staunchly backed the police.
Interviews and a review of law enforcement documents show that in recent cases, Microsoft lawyers made statements describing the company as a victim and arguing that criminal charges should be pursued.
The lawyers rebuffed pleas by accused journalists and advocacy groups, including Baikal Wave, to refrain from working with the authorities. Baikal Wave, in fact, said it had purchased and installed legal Microsoft software specifically to deny the authorities an excuse to raid them. The group later asked Microsoft for help in fending off the police. “Microsoft did not want to help us, which would have been the right thing to do,” said Marina Rikhvanova, a Baikal Environmental Wave co-chairwoman and one of Russia’s best-known environmentalists. “They said these issues had to be handled by the security services.”
September 13th, 2010