A U.S. appeals court recently sent a message. In a nutshell, it is that our nation of laws must deny torture survivors their day in court in order to keep the story of their torture secret.
In part, this was a message to the five plaintiffs in the Mohamed v. Jeppesen case. These are Muslim men - by descent Ethiopian, Iraqi, Moroccan, Yemeni and Egyptian. They had the bad luck to be swept up in the Bush administration's "extraordinary rendition" program, which by now is far from a secret.
Each of them disappeared - their families knew nothing of their whereabouts. Each of them spent months or years in a foul jail and underwent torture at the hands of the CIA or foreign security agents.
And, it appears, each of them was secretly transported by Aero Contractors, the North Carolina aviation company that flew many of the CIA's terror suspects to their torture chambers. While Aero's name doesn't appear in this lawsuit's paper trail, painstaking research by the Council of Europe proves the Smithfield contractor's role in the Mohamed v. Jeppesen renditions.
Take one plaintiff's story. Kassim Britel is an Italian citizen of Moroccan descent. In Pakistan on business in 2002, he was seized by local authorities and severely tortured for two months. Then he was handed over to the CIA, which flew him in a Smithfield-based Gulfstream, tail number N379P, to Morocco. There, he was subjected to total isolation, severe beatings that permanently damaged one eye and one ear, and threats of rape and castration.
Three of the other plaintiffs - Binyam Mohamed, Bisher al-Rawi and Mohamed Bashmilah - are now free, having never faced charges. Britel and the fifth plaintiff, Ahmed Agiza, still languish in Moroccan and Egyptian prisons, respectively. Legal observers say their trials didn't meet universally recognized standards for fairness. Often, the CIA-directed torture of "rendered" men sought to force confessions to crimes they hadn't committed.
In 2007, the five men sued Boeing subsidiary Jeppesen DataPlan, "trip planner" for the CIA's rendition missions. Although not a defendant, the Bush administration intervened, claiming "state secrets" would be compromised by hearing the case.
Sadly, President Barack Obama's Justice Department has taken the same stance - survivors of U.S.-directed disappearance and torture have no right to redress in U.S. courts. On Sept. 8, the 9th Circuit Court of Appeals agreed, closing the courtroom doors to these five men and thus likely to other rendition survivors as well. Two similar lawsuits by other torture survivors had already died at the hands of the U.S. Supreme Court without ever being heard. There, too, the state secrets privilege was invoked - even though most of the facts had been publicized all over the world.
The U.S. government has never acknowledged what it did to anyone "rendered" for torture. It has never apologized, never offered a dime of restitution. And now our highest courts have ruled out a judicial remedy.
The 9th Circuit didn't send a message just to torture survivors. It sent one also to the American people: Your leaders cannot be held accountable when they break the law. A lawsuit against a private party that might reveal criminal conduct by U.S. officials can go nowhere.
The 9th Circuit also sent a message to the world's Muslims: The U.S. does not have to take responsibility when it abuses Muslim men. The need to protect U.S. politicians trumps the need to respect those men's rights. The U.S. can scold other nations for abusing human rights, but it will not acknowledge its own violations.
In sending its messages, the appeals court ignored the fact that the conduct of the U.S. government most likely was illegal under international law and certainly violated the spirit of our federal statute against torture.
In fact, that's the message our judges and the executive branch have sent to the entire international community. The U.S. will ignore the Convention Against Torture, which it signed and under which there is no excuse when governments resort to kidnapping or torture.
Will Congress act? In 2009, U.S. Rep. Jerrold Nadler and 26 co-sponsors introduced HR 984 to rein in "state secrets" abuse. The state secrets privilege was intended to protect limited pieces of evidence - not to shut down trials and prevent embarrassment to those in high places. Judges can consider alleged state secrets in secret, allowing trials to continue.
Ironically, the actions that our highest courts are shielding from scrutiny have actually made us less safe, according to many experts. And now, when the U.S. badly needs friends in the Islamic world, our messages further alienate Muslims worldwide.
Threats to burn the Quran have received much publicity. But it's the failure to hold ourselves accountable for mistreating human beings who are Muslim that will ultimately echo the loudest.
