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April 30, 2009

Detainees Can File Suit Against CIA

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Detainees Can Pursue Suit Against CIA
by: Carol J. Williams
The Los Angeles Times

The US government cannot avoid trial by claiming the state
secrets privilege in the lawsuit brought by ex-Guantanamo
detainee Binyam Mohamed and four others, who allege they
were tortured.

The president cannot avoid trial of a lawsuit brought by
five former CIA captives, who allege they were tortured,
by proclaiming the entire case a protected state secret,
a federal appeals panel ruled today.

Both former President George W. Bush and President Obama’s
Justice Department lawyers had argued before federal
courts that a lawsuit brought by former Guantanamo prisoner
Binyam Mohamed and four others should be dismissed in the
interests of national security.

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The lawyers argued that “the very subject matter” of
the allegations that U.S. agents kidnapped and tortured
terrorism suspects was entitled to the protections of
the president’s state secrets privilege. In a move that
surprised many human rights groups, the Obama administr-
ation declined to revise the Bush lawyers’ claims that
the case needed to be dismissed to protect national
security.

The three-judge panel of the U.S. 9th Circuit Court of
Appeals ruled that the executive privilege claim was
excessive and the case could go to trial. The lawsuit
by the five alleged torture victims is against Jeppesen
Dataplan, a Boeing Co. subcontractor accused of complicity
in the men’s mistreatment for having flown them to secret
CIA interrogation sites after they were nabbed abroad by
federal agents.

Previous lawsuits alleging abuse were brought against the
U.S. government and dismissed by the courts presented with
presidential claims of state secrets privilege.

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Mohamed v. Jeppesen Dataplan now goes back to U.S. District
Court in San Francisco for trial, with the U.S. government,
which is backing Jeppesen, free to argue that specific
documents or pieces of evidence can be protected from
disclosure if they pose a genuine national security risk,
but not the entire case, said the opinion.

“By excising secret evidence on an item-by-item basis,
rather than foreclosing litigation altogether at the
outset, the evidentiary privilege recognizes that the
executive’s national security prerogatives are not the
only weighty constitutional values at stake,” said the
unanimous opinion written by Circuit Judge Michael Daly
Hawkins, an appointee of President Clinton.

Human rights advocates hailed the ruling as the first
opportunity for torture victims to bring the U.S. govern-
ment to account for its “extraordinary rendition” actions
in which dozens of foreign terrorism suspects were snatched
abroad and transported to secret interrogation sites by
CIA and other agents and subjected to harsh techniques now
recognized by U.S. officials as torture.

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Mohamed, the lead plaintiff, was released from the U.S.
prison in Guantanamo Bay, Cuba, in late February after
having spent more than six years in U.S. custody, the
first two years in the hands of Moroccan interrogators
under CIA guidance and later at the intelligence agency’s
“black site” in Bagram, Afghanistan.

Rights lawyers hailed the ruling as a breach in the wall
of secrecy erected by the Bush administration and thus
far maintained by President Obama.

“To date, no torture victim has achieved any measure of
justice or compensation in the U.S. courts, in large part
because the courts have allowed the executive to invoke
overbroad secrecy claims,” said Ben Wizner, a lawyer for
the American Civil Liberties Union who argued the case
before the 9th Circuit panel in February.

A Justice Department spokeswoman, Tracy Schmaler, said
government lawyers were “reviewing the judges’ order.”

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