The Bush administration argued that the lawsuit against Jeppesen DataPlan, a Boeing unit based in Colorado, threatened the country’s national security interests. In court yesterday, the panel of three judges asked the government if there was any change in its position because of the new administration.
A Justice Department attorney said the government stands by its brief, which was filed by the Bush administration.
More at the LA Times, Washington Post, Salon and Balkinisation. You can access the oral argument audio by clicking here (Windows Media Player required).
Earlier the LA Times commented:
If a man credibly claims to have been snatched from his home and family and tortured by or with the acquiescence of the government, he deserves a fair and impartial reckoning in court. Besides, the government’s assertions about the damage that could ensue should be viewed skeptically. The history of the privilege suggests that the government may use it not so much to protect national security as to prevent its own illegal or embarrassing misadventures from coming to light.There are ways to balance the government’s legitimate security interests against plaintiffs’ right to press their cases. Judges could, for instance, take a more active role in scrutinizing the claims of secrecy, examining the controversial evidence in private. Or they could agree to hold back certain pieces of sensitive information without dismissing entire cases. But what’s clear is that the government should not be permitted to kidnap and torture and then simply declare those heinous activities to be “state secrets” and off-limits for discussion.
The Times on the state secrets privilige:
It’s true and valid that governments should not betray confidential intelligence shared with allies that could undermine national security. It is not true or valid that governments should suppress material that does not undermine security but does reveal government malfeasance and illegality. Secrecy is there to protect the public, not the crimes of foreign governments.If we live under a rule of law, these cases will surface. There is no way to stop them without further polluting and politicising the justice system. Like a rising water table, evidence will appear on the surface in places we don’t yet expect. Obama can say he doesn’t want the trauma of prosecution; Gordon Brown and Miliband may hope to turn the page. But the legal system will churn on and the facts will either have to be released and dealt with or the cover-up will have to spread.
Yvonne Bradley, Binyam’s lawyer, had an opinion piece in The Guardian on ‘Bring Binyam Mohamed home from Guantanamo now’.
Secrecy also invoked in Al-Haramain wiretap lawsuit
In papers filed last wednesday, the new Justice Department asked a federal judge to suspend action on a suit challenging the wiretapping program, arguing that proceedings would jeopardize national security. Government lawyers also said the administration, not the courts, controls access to classified material at the heart of the case.The government wrote that the exposure of the evidence could pose “grave harm to national security.” Friday afternoon, Walker denied the Obama administration’s motion and asked the government to declare how it wished to proceed by Feb. 27.
The dispute involves Judge Walker’s Jan. 5 order to allow plaintiffs who say the government illegally wiretapped their phones to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit. Lawyers for the Obama administration say the judge’s decision “presents a clear-cut conflict between the court and the executive branch.”
Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, “They have drawn a line in the sand between the executive and the judiciary, saying, ‘You do not control these documents, we do.’ ” The new Justice Department filing, which elaborated on arguments by the same lawyers under the Bush administration, addressed only the need to freeze the lawsuit and keep information secret and did not discuss the legality of the surveillance program. But if the department’s position is upheld, Al-Haramain’s suit will be dismissed. More at the San Francisco Chronicle, HT to Georgetown SLB, which has also been collecting opinions on the state secrets privilige here.
The New York Times features an opinion piece by Noah Feldman in which he writes that openness and transparency in governance can go too far and that, “The effective operation of even the most democratic government requires secrecy and surprise as well as transparency and predictability.”
The use of torture intelligence
From the Times:
After being told by the Americans of Mohamed’s arrest in 2002, MI5 had dispatched an officer to speak to him in Karachi, evidence in the High Court case confirmed.Mohamed was said to have told the MI5 officer about his time in the UK. This included details of mosques he attended and how he was recruited to go to Afghanistan for terror training. He admitted he had seen a computer file in Lahore that apparently contained details of how to make a dirty bomb. But Mohamed told the MI5 officer – whom he knew as “John” – that he thought the whole thing was a joke.
“John” was clearly unimpressed. But his report back to Thames House may well come back to haunt him.
“I told [Mohamed] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his level of cooperation.
“I said that if he could persuade me he was telling the complete truth I would seek to use my influence to help him . . . I said it must be obvious to him that he would get more lenient treatment if he cooperated.” Shortly after the interview Mohamed disappeared into the CIA’s rendition programme.
This weekend, amid rumours in Westminster that the police might now be called in to investigate MI5, senior Whitehall officials admitted that “John’s” report could present MI5 with difficulties. Under the 1988 Criminal Justice Act it is illegal for British officials to commission or acquiesce in acts of torture anywhere in the world. The crime can be punished by life imprisonment.
Whether or not Mohamed was tortured, and whether or nor “John” was culpable, his case raises a far larger question. Despite Gordon Brown’s declarations suggesting otherwise, do the British security services use intelligence that has been obtained through torture?
In a little noticed debate in a House of Lords committee last Thursday, Baroness Eliza Manningham-Buller, MI5’s director-general between 2002 and 2007, went further than any of her colleagues in explaining the moral dilemma.
“It is pretty well impractical always to check whether something has been derived from torture unless you have reason to suspect it at the beginning,” she said.
“Literally thousands of pieces of intelligence are shared daily between the UK, our allies and people who might not so reasonably be described as our allies. I hope the minister will be able to confirm my comment on the amount of material that is going round the place and the impracticality of checking each bit for torture.”
That amounts to an admission that MI5 knows it has almost certainly used torture-stained intelligence, despite claiming it does not condone it.
It also emerged last week that none of the 42 documents unearthed by the High Court hearing about the Mohamed case had been passed to a full-scale inquiry into the practice of rendition by parliament’s intelligence and security committee in 2007. The inquiry had cleared the UK government of complicity in the US programme. Britain, the report suggested, was never told by the CIA exactly where it was holding prisoners and what techniques were being used to extract intelligence.
The chief of the Secret Intelligence Service (MI6), Sir John Scarlett, had told the committee it had never “crossed my mind” that US intelligence was coming from torture. After all, he said: “We are talking about the Americans, our closest ally.”
In their ruling last week the judges said the MPs could now use the new documents to reopen their inquiries and ask witnesses from MI6 and MI5 some “searching and difficult questions”. The conclusions of the inquiry might be different, they suggested.
Filed under: Fair Trial, Intelligence, Intelligence sharing, Pakistan, Privacy, Rendition, Secrecy, Torture
